1

A bill to be entitled

2

An act relating to motor vehicle dealers; amending s.

3

320.27, F.S.; revising the definition of "motor vehicle

4

dealer" to authorize such dealers to apply for

5

certificates of title to certain vehicles using a

6

manufacturer's statement of origin; eliminating

7

exceptions; deleting a provision requiring that certain

8

vehicles be titled as used vehicles; adding provisions

9

pursuant to which the Department of Highway Safety and

10

Motor Vehicle may deny, suspend, or revoke certain

11

licenses; providing that a franchised motor vehicle dealer

12

of the same line-make has a cause of action against a

13

motor vehicle dealer who engages, with sufficient

14

frequency so as to establish a pattern of wrongdoing, in

15

the business of an unauthorized and unlawful additional

16

motor vehicle dealership location as described by state

17

law; providing for venue for such causes of action;

18

creating s. 320.6425, F.S.; providing that certain

19

activities or the fulfillment of certain criteria

20

constitute the operation of an unlawful and additional

21

motor vehicle dealership; defining the term "sale for

22

retail purposes"; providing that certain actions by motor

23

vehicle dealers constitute violations of state law;

24

authorizing any same line-make motor vehicle dealer who

25

suffers damages as a result of an unlawful and additional

26

motor vehicle dealership location to seek damages;

27

providing for the application and nonapplication of

28

certain provisions of state law; providing an effective

29

date.

30

31

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

32

33

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

34

(b) of subsection (9) of section 320.27, Florida Statutes, are

35

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

36

     320.27  Motor vehicle dealers.--

37

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

38

when used in this section have the meanings respectively ascribed

39

to them in this subsection, except where the context clearly

40

indicates a different meaning:

41

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

42

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

43

offering or displaying motor vehicles for sale at wholesale or

44

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

45

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

46

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

47

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

48

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

49

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

50

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

51

at retail or wholesale, sell a recreational vehicle as described

52

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

53

of a motor vehicle, provided such acquisition is incidental to

54

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

55

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

56

purpose of resale unless licensed as a recreational vehicle

57

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

58

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

59

registered under s. 320.08(2)(b), (c), and (d), 320.08(3)(a),

60

(b), and (c), and 320.08(4)(a)-(n), using a manufacturer's

61

statement of origin as permitted by s. 319.23(1), only if such

62

dealer is authorized by a franchised agreement as defined in s.

63

320.60(1), to buy, sell, or deal in such vehicle and is

64

authorized by such agreement to perform delivery and preparation

65

obligations and warranty defect adjustments on the motor vehicle;

66

provided this limitation shall not apply to recreational

67

vehicles, van conversions, or any other motor vehicle

68

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

69

by a dealer not meeting these qualifications shall be titled as a

70

used vehicle. The classifications of motor vehicle dealers are

71

defined as follows:

72

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

73

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

74

or dealing in motor vehicles pursuant to an agreement as defined

75

in s. 320.60(1).

76

     2.  "Independent motor vehicle dealer" means any person

77

other than a franchised or wholesale motor vehicle dealer who

78

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

79

vehicles, and who may service and repair motor vehicles.

80

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

81

engages exclusively in the business of buying, selling, or

82

dealing in motor vehicles at wholesale or with motor vehicle

83

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

84

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

85

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

86

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

87

deals in motor vehicles at wholesale or with motor vehicle

88

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

89

bona fide employee of such licensed motor vehicle dealer is not

90

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

91

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

92

employer-employee relationship exists. A wholesale motor vehicle

93

dealer shall be exempt from the display provisions of this

94

section but shall maintain an office wherein records are kept in

95

order that those records may be inspected.

96

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

97

vehicles or recreational vehicles for sale to the highest bidder

98

where buyers are licensed motor vehicle dealers. Such person

99

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

100

vehicle dealer.

101

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

102

engages in the business of acquiring salvaged or wrecked motor

103

vehicles for the purpose of reselling them and their parts.

104

105

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

106

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

107

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

108

use in their business or acquired by foreclosure or by operation

109

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

110

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

111

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

112

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

113

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

114

performing their official duties; receivers; trustees,

115

administrators, executors, guardians, or other persons appointed

116

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

117

finance companies, or other loan agencies that acquire motor

118

vehicles as an incident to their regular business; motor vehicle

119

brokers; and motor vehicle rental and leasing companies that sell

120

motor vehicles to motor vehicle dealers licensed under this

121

section. Vehicles owned under circumstances described in this

122

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

123

unless otherwise restricted. A manufacturer of fire trucks,

124

ambulances, or school buses may sell such vehicles directly to

125

governmental agencies or to persons who contract to perform or

126

provide firefighting, ambulance, or school transportation

127

services exclusively to governmental agencies without processing

128

such sales through dealers if such fire trucks, ambulances,

129

school buses, or similar vehicles are not presently available

130

through motor vehicle dealers licensed by the department.

131

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

132

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

133

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

134

320.771 upon proof that a licensee has committed, with sufficient

135

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

136

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

137

activities:

138

     1.  Representation that a demonstrator is a new motor

139

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

140

a new motor vehicle without written notice to the purchaser that

141

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

142

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

143

vehicle" shall be defined as under s. 320.60.

144

     2.  Unjustifiable refusal to comply with a licensee's

145

responsibility under the terms of the new motor vehicle warranty

146

issued by its respective manufacturer, distributor, or importer.

147

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

148

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

149

under this section.

150

     3.  Misrepresentation or false, deceptive, or misleading

151

statements with regard to the sale or financing of motor vehicles

152

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

153

advertised, printed, displayed, published, distributed,

154

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

155

sale or financing of motor vehicles.

156

     4.  Failure by any motor vehicle dealer to provide a

157

customer or purchaser with an odometer disclosure statement and a

158

copy of any bona fide written, executed sales contract or

159

agreement of purchase connected with the purchase of the motor

160

vehicle purchased by the customer or purchaser.

161

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

162

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

163

the sale of a motor vehicle.

164

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

165

in s. 319.23(6).

166

     7.  Use of the dealer license identification number by any

167

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

168

     8.  Failure to continually meet the requirements of the

169

licensure law.

170

     9.  Representation to a customer or any advertisement to the

171

public representing or suggesting that a motor vehicle is a new

172

motor vehicle if such vehicle lawfully cannot be titled in the

173

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

174

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

175

319.23(1).

176

     10.  Requirement by any motor vehicle dealer that a customer

177

or purchaser accept equipment on his or her motor vehicle which

178

was not ordered by the customer or purchaser.

179

     11.  Requirement by any motor vehicle dealer that any

180

customer or purchaser finance a motor vehicle with a specific

181

financial institution or company.

182

     12.  Requirement by any motor vehicle dealer that the

183

purchaser of a motor vehicle contract with the dealer for

184

physical damage insurance.

185

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

186

dealing in motor vehicles, including, without limitation, the

187

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

188

relationship to any manufacturer, importer, or distributor.

189

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

190

motor vehicle dealer.

191

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

192

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

193

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

194

the customer provides written authorization for the sale of the

195

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

196

     16.  Willful failure to comply with any administrative rule

197

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

198

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

199

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

200

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

201

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

202

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

203

sales window form.

204

     18.  Failure to maintain evidence of notification to the

205

owner or coowner of a vehicle regarding registration or titling

206

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

207

     19.  Failure to register a mobile home salesperson with the

208

department as required by this section.

209

     20. Any violation of s. 320.6425 by any motor vehicle

210

dealer, including the operation of an unlawful additional motor

211

vehicle dealership location or unlawful supply of motor vehicles.

212

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

213

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

214

section against a motor vehicle dealer who engages, with

215

sufficient frequency so as to establish a pattern of wrongdoing,

216

in the business of an unauthorized and unlawful additional motor

217

vehicle dealership location as described in s. 320.6425. The

218

cause of action for injunctive relief and actual damages,

219

including lost profit, court costs, and reasonable attorney's

220

fees, may be brought in any court of competent jurisdiction.

221

     Section 2.  Section 320.6425, Florida Statutes, is created

222

to read:

223

     320.6425 Unauthorized and additional motor vehicle

224

dealerships.--

225

     (1) An unlawful and additional motor vehicle dealership

226

location, as contemplated by s. 320.642, exists if motor vehicles

227

are sold from a location in this state for retail purposes if the

228

motor vehicle dealer transacting such sales:

229

     (a) Is not located in this state;

230

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

231

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

232

or

233

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

234

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

235

but such sales are transacted at a location other than that

236

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

237

Department of Highway Safety and Motor Vehicles.

238

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

239

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

240

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

241

vehicle sold for commercial use is not resold within 90 days.

242

This section applies regardless of whether the title issued

243

pursuant to such sale, in this state or another state, is

244

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

245

prohibit a motor vehicle dealer from reselling any motor vehicle

246

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

247

     (3) Any motor vehicle dealer, whether located inside or

248

outside this state, which supplies any motor vehicle to the

249

unlawful and additional motor vehicle dealership location

250

established pursuant to subsection (1), unlawfully:

251

     (a) Establishes an additional motor vehicle dealership

252

location in violation of s. 320.642; and

253

     (b) Conducts business within this state as a distributor

254

and licensee, as contemplated by s. 320.60, in violation of ss.

255

320.61 and 320.642.

256

     (4) Any same line-make motor vehicle dealer suffering

257

damages as a result of the unlawful and additional motor vehicle

258

dealership location may seek damages against any motor vehicle

259

dealer deemed to be a distributor or licensee pursuant to

260

subsection (3) and may seek all remedies, procedures, and rights

261

of recovery available under ss. 320.695 and 320.697.

262

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

263

vehicle, by sale or trade, from one franchised dealer to another

264

dealer authorized by franchise agreement to sell the same line-

265

make of motor vehicles.

266

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