Florida Senate - 2008 COMMITTEE AMENDMENT
Bill No. SB 2150
724248
Senate
Comm: 1/RCS
3/25/2008
.
.
.
.
.
House
1
The Committee on Transportation (Dockery) recommended the
2
following amendment:
3
4
Senate Amendment (with title amendment)
5
Delete everything after the enacting clause
6
and insert:
7
8
Section 1. Paragraph (c) of subsection (1) and paragraph
9
(b) of subsection (9) of section 320.27, Florida Statutes, are
10
amended, and subsection (15) is added to that section, to read:
11
320.27 Motor vehicle dealers.--
12
(1) DEFINITIONS.--The following words, terms, and phrases
13
when used in this section have the meanings respectively ascribed
14
to them in this subsection, except where the context clearly
15
indicates a different meaning:
16
(c) "Motor vehicle dealer" means any person engaged in the
17
business of buying, selling, or dealing in motor vehicles or
18
offering or displaying motor vehicles for sale at wholesale or
19
retail, or who may service and repair motor vehicles pursuant to
20
an agreement as defined in s. 320.60(1). Any person who buys,
21
sells, or deals in three or more motor vehicles in any 12-month
22
period or who offers or displays for sale three or more motor
23
vehicles in any 12-month period shall be prima facie presumed to
24
be engaged in such business. The terms "selling" and "sale"
25
include lease-purchase transactions. A motor vehicle dealer may,
26
at retail or wholesale, sell a recreational vehicle as described
27
in s. 320.01(1)(b)1.-6. and 8., acquired in exchange for the sale
28
of a motor vehicle, provided such acquisition is incidental to
29
the principal business of being a motor vehicle dealer. However,
30
a motor vehicle dealer may not buy a recreational vehicle for the
31
purpose of resale unless licensed as a recreational vehicle
32
dealer pursuant to s. 320.771. A motor vehicle dealer may apply
33
for a certificate of title to a motor vehicle required to be
34
registered under s. 320.08(2)(b), (c), and (d), 320.08(3)(a),
35
(b), and (c), and 320.08(4)(a)-(n), using a manufacturer's
36
statement of origin as permitted by s. 319.23(1), only if such
37
dealer is authorized by a franchised agreement as defined in s.
38
320.60(1), to buy, sell, or deal in such vehicle and is
39
authorized by such agreement to perform delivery and preparation
40
obligations and warranty defect adjustments on the motor vehicle;
41
provided this limitation shall not apply to recreational
42
vehicles, van conversions, or any other motor vehicle
43
manufactured on a truck chassis. The transfer of a motor vehicle
44
by a dealer not meeting these qualifications shall be titled as a
45
used vehicle. The classifications of motor vehicle dealers are
46
defined as follows:
47
1. "Franchised motor vehicle dealer" means any person who
48
engages in the business of repairing, servicing, buying, selling,
49
or dealing in motor vehicles pursuant to an agreement as defined
50
in s. 320.60(1).
51
2. "Independent motor vehicle dealer" means any person
52
other than a franchised or wholesale motor vehicle dealer who
53
engages in the business of buying, selling, or dealing in motor
54
vehicles, and who may service and repair motor vehicles.
55
3. "Wholesale motor vehicle dealer" means any person who
56
engages exclusively in the business of buying, selling, or
57
dealing in motor vehicles at wholesale or with motor vehicle
58
auctions. Such person shall be licensed to do business in this
59
state, shall not sell or auction a vehicle to any person who is
60
not a licensed dealer, and shall not have the privilege of the
61
use of dealer license plates. Any person who buys, sells, or
62
deals in motor vehicles at wholesale or with motor vehicle
63
auctions on behalf of a licensed motor vehicle dealer and as a
64
bona fide employee of such licensed motor vehicle dealer is not
65
required to be licensed as a wholesale motor vehicle dealer. In
66
such cases it shall be prima facie presumed that a bona fide
67
employer-employee relationship exists. A wholesale motor vehicle
68
dealer shall be exempt from the display provisions of this
69
section but shall maintain an office wherein records are kept in
70
order that those records may be inspected.
71
4. "Motor vehicle auction" means any person offering motor
72
vehicles or recreational vehicles for sale to the highest bidder
73
where buyers are licensed motor vehicle dealers. Such person
74
shall not sell a vehicle to anyone other than a licensed motor
75
vehicle dealer.
76
5. "Salvage motor vehicle dealer" means any person who
77
engages in the business of acquiring salvaged or wrecked motor
78
vehicles for the purpose of reselling them and their parts.
79
80
The term "motor vehicle dealer" does not include persons not
81
engaged in the purchase or sale of motor vehicles as a business
82
who are disposing of vehicles acquired for their own use or for
83
use in their business or acquired by foreclosure or by operation
84
of law, provided such vehicles are acquired and sold in good
85
faith and not for the purpose of avoiding the provisions of this
86
law; persons engaged in the business of manufacturing, selling,
87
or offering or displaying for sale at wholesale or retail no more
88
than 25 trailers in a 12-month period; public officers while
89
performing their official duties; receivers; trustees,
90
administrators, executors, guardians, or other persons appointed
91
by, or acting under the judgment or order of, any court; banks,
92
finance companies, or other loan agencies that acquire motor
93
vehicles as an incident to their regular business; motor vehicle
94
brokers; and motor vehicle rental and leasing companies that sell
95
motor vehicles to motor vehicle dealers licensed under this
96
section. Vehicles owned under circumstances described in this
97
paragraph may be disposed of at retail, wholesale, or auction,
98
unless otherwise restricted. A manufacturer of fire trucks,
99
ambulances, or school buses may sell such vehicles directly to
100
governmental agencies or to persons who contract to perform or
101
provide firefighting, ambulance, or school transportation
102
services exclusively to governmental agencies without processing
103
such sales through dealers if such fire trucks, ambulances,
104
school buses, or similar vehicles are not presently available
105
through motor vehicle dealers licensed by the department.
106
(9) DENIAL, SUSPENSION, OR REVOCATION.--
107
(b) The department may deny, suspend, or revoke any license
108
issued hereunder or under the provisions of s. 320.77 or s.
109
320.771 upon proof that a licensee has committed, with sufficient
110
frequency so as to establish a pattern of wrongdoing on the part
111
of a licensee, violations of one or more of the following
112
activities:
113
1. Representation that a demonstrator is a new motor
114
vehicle, or the attempt to sell or the sale of a demonstrator as
115
a new motor vehicle without written notice to the purchaser that
116
the vehicle is a demonstrator. For the purposes of this section,
117
a "demonstrator," a "new motor vehicle," and a "used motor
118
vehicle" shall be defined as under s. 320.60.
119
2. Unjustifiable refusal to comply with a licensee's
120
responsibility under the terms of the new motor vehicle warranty
121
issued by its respective manufacturer, distributor, or importer.
122
However, if such refusal is at the direction of the manufacturer,
123
distributor, or importer, such refusal shall not be a ground
124
under this section.
125
3. Misrepresentation or false, deceptive, or misleading
126
statements with regard to the sale or financing of motor vehicles
127
which any motor vehicle dealer has, or causes to have,
128
advertised, printed, displayed, published, distributed,
129
broadcast, televised, or made in any manner with regard to the
130
sale or financing of motor vehicles.
131
4. Failure by any motor vehicle dealer to provide a
132
customer or purchaser with an odometer disclosure statement and a
133
copy of any bona fide written, executed sales contract or
134
agreement of purchase connected with the purchase of the motor
135
vehicle purchased by the customer or purchaser.
136
5. Failure of any motor vehicle dealer to comply with the
137
terms of any bona fide written, executed agreement, pursuant to
138
the sale of a motor vehicle.
139
6. Failure to apply for transfer of a title as prescribed
140
in s. 319.23(6).
141
7. Use of the dealer license identification number by any
142
person other than the licensed dealer or his or her designee.
143
8. Failure to continually meet the requirements of the
144
licensure law.
145
9. Representation to a customer or any advertisement to the
146
public representing or suggesting that a motor vehicle is a new
147
motor vehicle if such vehicle lawfully cannot be titled in the
148
name of the customer or other member of the public by the seller
149
using a manufacturer's statement of origin as permitted in s.
150
319.23(1).
151
10. Requirement by any motor vehicle dealer that a customer
152
or purchaser accept equipment on his or her motor vehicle which
153
was not ordered by the customer or purchaser.
154
11. Requirement by any motor vehicle dealer that any
155
customer or purchaser finance a motor vehicle with a specific
156
financial institution or company.
157
12. Requirement by any motor vehicle dealer that the
158
purchaser of a motor vehicle contract with the dealer for
159
physical damage insurance.
160
13. Perpetration of a fraud upon any person as a result of
161
dealing in motor vehicles, including, without limitation, the
162
misrepresentation to any person by the licensee of the licensee's
163
relationship to any manufacturer, importer, or distributor.
164
14. Violation of any of the provisions of s. 319.35 by any
165
motor vehicle dealer.
166
15. Sale by a motor vehicle dealer of a vehicle offered in
167
trade by a customer prior to consummation of the sale, exchange,
168
or transfer of a newly acquired vehicle to the customer, unless
169
the customer provides written authorization for the sale of the
170
trade-in vehicle prior to delivery of the newly acquired vehicle.
171
16. Willful failure to comply with any administrative rule
172
adopted by the department or the provisions of s. 320.131(8).
173
17. Violation of chapter 319, this chapter, or ss. 559.901-
174
559.9221, which has to do with dealing in or repairing motor
175
vehicles or mobile homes. Additionally, in the case of used motor
176
vehicles, the willful violation of the federal law and rule in 15
177
U.S.C. s. 2304, 16 C.F.R. part 455, pertaining to the consumer
178
sales window form.
179
18. Failure to maintain evidence of notification to the
180
owner or coowner of a vehicle regarding registration or titling
181
fees owed as required in s. 320.02(17).
182
19. Failure to register a mobile home salesperson with the
183
department as required by this section.
184
20. Any violation of s. 320.6425 by any motor vehicle
185
dealer, including the operation of an unlawful additional motor
186
vehicle dealership location or unlawful supply of motor vehicles.
187
(15) PRIVATE ENFORCEMENT.--A franchised motor vehicle
188
dealer of the same line-make has a cause of action under this
189
section against a motor vehicle dealer who engages, with
190
sufficient frequency so as to establish a pattern of wrongdoing,
191
in the business of an unauthorized and unlawful additional motor
192
vehicle dealership location as described in s. 320.6425. The
193
cause of action for injunctive relief and actual damages,
194
including lost profit, court costs, and reasonable attorney's
195
fees, may be brought in any court of competent jurisdiction.
196
Section 2. Section 320.6425, Florida Statutes, is created
197
to read:
198
320.6425 Unauthorized and additional motor vehicle
199
dealerships.--
200
(1) An unlawful and additional motor vehicle dealership
201
location, as contemplated by s. 320.642, exists if motor vehicles
202
are sold from a location in this state for retail purposes if the
203
motor vehicle dealer transacting such sales:
204
(a) Is not located in this state;
205
(b) Is not a licensed motor vehicle dealer authorized by
206
a franchise agreement to sell the specific line-make of vehicle;
207
or
208
(c) Is a licensed motor vehicle dealer authorized by a
209
franchise agreement to sell the specific line-make of vehicle,
210
but such sales are transacted at a location other than that
211
permitted by a license issued to the motor vehicle dealer by the
212
Department of Highway Safety and Motor Vehicles.
213
(2) A sale for retail purposes is the first sale of the
214
motor vehicle to a customer for personal use or the first sale of
215
the motor vehicle for commercial use, such as leasing, if a motor
216
vehicle sold for commercial use is not resold within 90 days.
217
This section applies regardless of whether the title issued
218
pursuant to such sale, in this state or another state, is
219
designated as new or used. However, this section does not
220
prohibit a motor vehicle dealer from reselling any motor vehicle
221
it receives in trade for the sale of another motor vehicle.
222
(3) Any motor vehicle dealer, whether located inside or
223
outside this state, which supplies any motor vehicle to the
224
unlawful and additional motor vehicle dealership location
225
established pursuant to subsection (1), unlawfully:
226
(a) Establishes an additional motor vehicle dealership
227
location in violation of s. 320.642; and
228
(b) Conducts business within this state as a distributor
229
and licensee, as contemplated by s. 320.60, in violation of ss.
230
320.61 and 320.642.
231
(4) Any same line-make motor vehicle dealer suffering
232
damages as a result of the unlawful and additional motor vehicle
233
dealership location may seek damages against any motor vehicle
234
dealer deemed to be a distributor or licensee pursuant to
235
subsection (3) and may seek all remedies, procedures, and rights
236
of recovery available under ss. 320.695 and 320.697.
237
(5) This section does not prohibit the transfer of a motor
238
vehicle, by sale or trade, from one franchised dealer to another
239
dealer authorized by franchise agreement to sell the same line-
240
make of motor vehicles.
241
Section 3. This act shall take effect July 1, 2008.
242
243
================ T I T L E A M E N D M E N T ================
244
And the title is amended as follows:
245
Delete everything before the enacting clause
246
and insert:
247
A bill to be entitled
248
An act relating to motor vehicle dealers; amending s.
249
320.27, F.S.; revising the definition of "motor vehicle
250
dealer" to authorize such dealers to apply for
251
certificates of title to certain vehicles using a
252
manufacturer's statement of origin; eliminating
253
exceptions; deleting a provision requiring that certain
254
vehicles be titled as used vehicles; adding provisions
255
pursuant to which the Department of Highway Safety and
256
Motor Vehicle may deny, suspend, or revoke certain
257
licenses; providing that a franchised motor vehicle dealer
258
of the same line-make has a cause of action against a
259
motor vehicle dealer who engages, with sufficient
260
frequency so as to establish a pattern of wrongdoing, in
261
the business of an unauthorized and unlawful additional
262
motor vehicle dealership location as described by state
263
law; providing for venue for such causes of action;
264
creating s. 320.6425, F.S.; providing that certain
265
activities or the fulfillment of certain criteria
266
constitute the operation of an unlawful and additional
267
motor vehicle dealership; defining the term "sale for
268
retail purposes"; providing that certain actions by motor
269
vehicle dealers constitute violations of state law;
270
authorizing any same line-make motor vehicle dealer who
271
suffers damages as a result of an unlawful and additional
272
motor vehicle dealership location to seek damages;
273
providing for the application and nonapplication of
274
certain provisions of state law; providing an effective
275
date.
3/24/2008 8:11:00 AM 15-05538-08
CODING: Words stricken are deletions; words underlined are additions.