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A bill to be entitled

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An act relating to motor vehicle dealers; amending s.

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320.27, F.S.; redefining the term "motor vehicle dealer"

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to remove provisions excluding a dealer engaging in

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transactions of certain vehicles; providing conforming

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penalty provisions; creating s. 320.6425, F.S.;

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prohibiting unlawful and additional motor vehicle

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dealership locations in violation of laws restricting the

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establishment of dealerships representing the same line-

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make; providing guidelines for determining what

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constitutes such locations; providing penalties for

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establishing an unlawful additional motor vehicle

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dealership or supplying a motor vehicle to such a

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dealership; exempting certain dealer-to-dealer transfers;

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providing an effective date.

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Be It Enacted by the Legislature of the State of Florida:

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     Section 1.  Paragraph (c) of subsection (1) and subsection

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(9) of section 320.27, Florida Statutes, are amended, and

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subsection (15) is added to that section, to read:

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     320.27  Motor vehicle dealers.--

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     (1)  DEFINITIONS.--The following words, terms, and phrases

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when used in this section have the meanings respectively ascribed

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to them in this subsection, except where the context clearly

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indicates a different meaning:

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     (c)  "Motor vehicle dealer" means any person engaged in the

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business of buying, selling, or dealing in motor vehicles or

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offering or displaying motor vehicles for sale at wholesale or

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retail, or who may service and repair motor vehicles pursuant to

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an agreement as defined in s. 320.60(1). Any person who buys,

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sells, or deals in three or more motor vehicles in any 12-month

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period or who offers or displays for sale three or more motor

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vehicles in any 12-month period shall be prima facie presumed to

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be engaged in such business. The terms "selling" and "sale"

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include lease-purchase transactions. A motor vehicle dealer may,

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at retail or wholesale, sell a recreational vehicle as described

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in s. 320.01(1)(b)1.-6. and 8., acquired in exchange for the sale

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of a motor vehicle, provided such acquisition is incidental to

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the principal business of being a motor vehicle dealer. However,

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a motor vehicle dealer may not buy a recreational vehicle for the

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purpose of resale unless licensed as a recreational vehicle

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dealer pursuant to s. 320.771. A motor vehicle dealer may apply

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for a certificate of title to a motor vehicle required to be

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registered under s. 320.08(2)(b), (c), and (d), using a

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manufacturer's statement of origin as permitted by s. 319.23(1),

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only if such dealer is authorized by a franchised agreement as

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defined in s. 320.60(1), to buy, sell, or deal in such vehicle

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and is authorized by such agreement to perform delivery and

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preparation obligations and warranty defect adjustments on the

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motor vehicle; provided this limitation shall not apply to

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recreational vehicles or, van conversions, or any other motor

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vehicle manufactured on a truck chassis. The transfer of a motor

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vehicle by a dealer not meeting these qualifications shall be

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titled as a used vehicle. The classifications of motor vehicle

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dealers are defined as follows:

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     1.  "Franchised motor vehicle dealer" means any person who

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engages in the business of repairing, servicing, buying, selling,

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or dealing in motor vehicles pursuant to an agreement as defined

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in s. 320.60(1).

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     2.  "Independent motor vehicle dealer" means any person

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other than a franchised or wholesale motor vehicle dealer who

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engages in the business of buying, selling, or dealing in motor

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vehicles, and who may service and repair motor vehicles.

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     3.  "Wholesale motor vehicle dealer" means any person who

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engages exclusively in the business of buying, selling, or

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dealing in motor vehicles at wholesale or with motor vehicle

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auctions. Such person shall be licensed to do business in this

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state, shall not sell or auction a vehicle to any person who is

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not a licensed dealer, and shall not have the privilege of the

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use of dealer license plates. Any person who buys, sells, or

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deals in motor vehicles at wholesale or with motor vehicle

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auctions on behalf of a licensed motor vehicle dealer and as a

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bona fide employee of such licensed motor vehicle dealer is not

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required to be licensed as a wholesale motor vehicle dealer. In

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such cases it shall be prima facie presumed that a bona fide

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employer-employee relationship exists. A wholesale motor vehicle

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dealer shall be exempt from the display provisions of this

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section but shall maintain an office wherein records are kept in

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order that those records may be inspected.

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     4.  "Motor vehicle auction" means any person offering motor

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vehicles or recreational vehicles for sale to the highest bidder

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where buyers are licensed motor vehicle dealers. Such person

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shall not sell a vehicle to anyone other than a licensed motor

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vehicle dealer.

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     5.  "Salvage motor vehicle dealer" means any person who

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engages in the business of acquiring salvaged or wrecked motor

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vehicles for the purpose of reselling them and their parts.

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The term "motor vehicle dealer" does not include persons not

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engaged in the purchase or sale of motor vehicles as a business

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who are disposing of vehicles acquired for their own use or for

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use in their business or acquired by foreclosure or by operation

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of law, provided such vehicles are acquired and sold in good

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faith and not for the purpose of avoiding the provisions of this

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law; persons engaged in the business of manufacturing, selling,

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or offering or displaying for sale at wholesale or retail no more

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than 25 trailers in a 12-month period; public officers while

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performing their official duties; receivers; trustees,

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administrators, executors, guardians, or other persons appointed

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by, or acting under the judgment or order of, any court; banks,

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finance companies, or other loan agencies that acquire motor

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vehicles as an incident to their regular business; motor vehicle

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brokers; and motor vehicle rental and leasing companies that sell

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motor vehicles to motor vehicle dealers licensed under this

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section. Vehicles owned under circumstances described in this

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paragraph may be disposed of at retail, wholesale, or auction,

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unless otherwise restricted. A manufacturer of fire trucks,

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ambulances, or school buses may sell such vehicles directly to

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governmental agencies or to persons who contract to perform or

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provide firefighting, ambulance, or school transportation

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services exclusively to governmental agencies without processing

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such sales through dealers if such fire trucks, ambulances,

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school buses, or similar vehicles are not presently available

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through motor vehicle dealers licensed by the department.

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     (9)  DENIAL, SUSPENSION, OR REVOCATION.--

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     (a)  The department may deny, suspend, or revoke any license

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issued hereunder or under the provisions of s. 320.77 or s.

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320.771, upon proof that a licensee has committed any of the

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following activities:

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     1.  Commission of fraud or willful misrepresentation in

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application for or in obtaining a license.

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     2.  Conviction of a felony.

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     3.  Failure to honor a bank draft or check given to a motor

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vehicle dealer for the purchase of a motor vehicle by another

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motor vehicle dealer within 10 days after notification that the

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bank draft or check has been dishonored. If the transaction is

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disputed, the maker of the bank draft or check shall post a bond

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in accordance with the provisions of s. 559.917, and no

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proceeding for revocation or suspension shall be commenced until

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the dispute is resolved.

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     (b)  The department may deny, suspend, or revoke any license

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issued hereunder or under the provisions of s. 320.77 or s.

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320.771 upon proof that a licensee has committed, with sufficient

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frequency so as to establish a pattern of wrongdoing on the part

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of a licensee, violations of one or more of the following

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activities:

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     1.  Representation that a demonstrator is a new motor

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vehicle, or the attempt to sell or the sale of a demonstrator as

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a new motor vehicle without written notice to the purchaser that

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the vehicle is a demonstrator. For the purposes of this section,

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a "demonstrator," a "new motor vehicle," and a "used motor

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vehicle" shall be defined as under s. 320.60.

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     2.  Unjustifiable refusal to comply with a licensee's

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responsibility under the terms of the new motor vehicle warranty

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issued by its respective manufacturer, distributor, or importer.

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However, if such refusal is at the direction of the manufacturer,

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distributor, or importer, such refusal shall not be a ground

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under this section.

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     3.  Misrepresentation or false, deceptive, or misleading

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statements with regard to the sale or financing of motor vehicles

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which any motor vehicle dealer has, or causes to have,

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advertised, printed, displayed, published, distributed,

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broadcast, televised, or made in any manner with regard to the

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sale or financing of motor vehicles.

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     4.  Failure by any motor vehicle dealer to provide a

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customer or purchaser with an odometer disclosure statement and a

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copy of any bona fide written, executed sales contract or

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agreement of purchase connected with the purchase of the motor

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vehicle purchased by the customer or purchaser.

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     5.  Failure of any motor vehicle dealer to comply with the

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terms of any bona fide written, executed agreement, pursuant to

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the sale of a motor vehicle.

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     6.  Failure to apply for transfer of a title as prescribed

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in s. 319.23(6).

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     7.  Use of the dealer license identification number by any

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person other than the licensed dealer or his or her designee.

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     8.  Failure to continually meet the requirements of the

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licensure law.

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     9.  Representation to a customer or any advertisement to the

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public representing or suggesting that a motor vehicle is a new

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motor vehicle if such vehicle lawfully cannot be titled in the

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name of the customer or other member of the public by the seller

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using a manufacturer's statement of origin as permitted in s.

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319.23(1).

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     10.  Requirement by any motor vehicle dealer that a customer

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or purchaser accept equipment on his or her motor vehicle which

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was not ordered by the customer or purchaser.

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     11.  Requirement by any motor vehicle dealer that any

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customer or purchaser finance a motor vehicle with a specific

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financial institution or company.

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     12.  Requirement by any motor vehicle dealer that the

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purchaser of a motor vehicle contract with the dealer for

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physical damage insurance.

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     13.  Perpetration of a fraud upon any person as a result of

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dealing in motor vehicles, including, without limitation, the

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misrepresentation to any person by the licensee of the licensee's

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relationship to any manufacturer, importer, or distributor.

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     14.  Violation of any of the provisions of s. 319.35 by any

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motor vehicle dealer.

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     15.  Sale by a motor vehicle dealer of a vehicle offered in

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trade by a customer prior to consummation of the sale, exchange,

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or transfer of a newly acquired vehicle to the customer, unless

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the customer provides written authorization for the sale of the

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trade-in vehicle prior to delivery of the newly acquired vehicle.

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     16.  Willful failure to comply with any administrative rule

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adopted by the department or the provisions of s. 320.131(8).

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     17.  Violation of chapter 319, this chapter, or ss. 559.901-

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559.9221, which has to do with dealing in or repairing motor

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vehicles or mobile homes. Additionally, in the case of used motor

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vehicles, the willful violation of the federal law and rule in 15

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U.S.C. s. 2304, 16 C.F.R. part 455, pertaining to the consumer

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sales window form.

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     18.  Failure to maintain evidence of notification to the

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owner or coowner of a vehicle regarding registration or titling

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fees owed as required in s. 320.02(17).

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     19.  Failure to register a mobile home salesperson with the

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department as required by this section.

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     20. Violation of s. 320.6425 by any motor vehicle dealer,

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including the operation of an unlawful additional motor vehicle

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dealership location or unlawful supply of motor vehicles.

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     (c)  When a motor vehicle dealer is convicted of a crime

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which results in his or her being prohibited from continuing in

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that capacity, the dealer may not continue in any capacity within

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the industry. The offender shall have no financial interest,

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management, sales, or other role in the operation of a

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dealership. Further, the offender may not derive income from the

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dealership beyond reasonable compensation for the sale of his or

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her ownership interest in the business.

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     (15) PRIVATE ENFORCEMENT.--A franchised motor vehicle

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dealer of the same line-make has a cause of action under this

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section against a motor vehicle dealer who engages, with

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sufficient frequency to establish a pattern of wrongdoing, in the

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business of an unauthorized and unlawful additional motor vehicle

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dealership location as described in s. 320.6425. The cause of

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action for injunctive relief and actual damages, including lost

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profit, court costs, and reasonable attorney's fees, may be

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brought in any court of competent jurisdiction.

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     Section 2.  Section 320.6425, Florida Statutes, is created

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to read:

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     320.6425 Unlawful additional motor vehicle dealerships.--

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     (1) An unlawful and additional motor vehicle dealership

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location, as contemplated by s. 320.642, is established when

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motor vehicles are sold from a location in this state for retail

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purposes if the motor vehicle dealer transacting the sales:

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     (a) Is not located in this state;

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     (b) Is not a licensed motor vehicle dealer authorized by a

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franchise agreement to sell the specific line-make of vehicle; or

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     (c) Is a licensed motor vehicle dealer authorized by a

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franchise agreement to sell the specific line-make of vehicle,

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but such sales are transacted at a location other than that

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permitted by a license issued to the motor vehicle dealer by the

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department.

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     (2) A sale for retail purposes is the first sale of the

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motor vehicle to a customer for personal use or the first sale of

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the motor vehicle for commercial use, such as a lease, if the

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motor vehicle sold for commercial use is not resold within 90

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days. This section applies regardless of whether the titles

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issued, in this or another state, pursuant to the sales are

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designated as new or used. However, this section does not

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prohibit a motor vehicle dealer from reselling any motor vehicle

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it receives in trade for the sale of another motor vehicle.

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     (3) Any motor vehicle dealer, whether located in this state

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or not, which supplies a motor vehicle to an unlawful and

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additional motor vehicle dealership location is deemed to have

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unlawfully established an additional motor vehicle dealership

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location in violation of s. 320.642 and to have conducted

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business within this state as a distributor and licensee, as

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defined in s. 320.60, in violation of ss. 320.61 and 320.642.

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     (4) Any same line-make motor vehicle dealer who suffers

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damages as a result of the unlawful and additional motor vehicle

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dealership location may seek damages against the distributor or

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licensee and may seek all remedies available under ss. 320.695

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and 320.697.

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     (5) This section does not prohibit the transfer of a motor

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vehicle by sale or trade from one franchised dealer to another

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dealer authorized by franchise agreement to sell the same line-

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make of motor vehicles.

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     Section 3.  This act shall take effect July 1, 2008.