ENROLLED
       2009 Legislature     CS for CS for CS for SB 2630, 2nd Engrossed
       
       
       
       
       
       
                                                             20092630er
    1  
    2         An act relating to motor vehicle dealerships; amending
    3         s. 320.64, F.S.; revising provisions prohibiting
    4         certain acts by a motor vehicle manufacturer, factory
    5         branch, distributor, or importer licensed under
    6         specified provisions; revising conditions and
    7         procedures for certain audits; making rebuttable a
    8         presumption that a dealer had no actual knowledge and
    9         should not have known that a customer intended to
   10         export or resell a motor vehicle; clarifying a
   11         dealer’s eligibility requirements for licensee-offered
   12         program bonuses, incentives, and other benefits;
   13         requiring certain payments if a termination,
   14         cancellation, or nonrenewal of a dealer’s franchise is
   15         the result of cessation of manufacture or distribution
   16         of a line-make or a bankruptcy or reorganization;
   17         amending s. 320.642, F.S.; revising provisions for
   18         establishing an additional motor vehicle dealership in
   19         or relocating an existing dealer to a location within
   20         a community or territory where the same line-make
   21         vehicle is presently represented by a franchised motor
   22         vehicle dealer or dealers; revising requirements for
   23         protests; amending s. 320.643, F.S.; revising
   24         provisions for a transfer, assignment, or sale of
   25         franchise agreements; prohibiting rejection of
   26         proposed transfer of interest in a motor vehicle
   27         dealer entity to a trust or other entity, or a
   28         beneficiary thereof, which is established for estate
   29         planning purposes; prohibiting placing certain
   30         conditions on such transfer; revising provisions for a
   31         hearing by the department or a court relating to a
   32         proposed transfer; amending s. 320.696, F.S.; revising
   33         warranty responsibility provisions; providing for
   34         severability; amending s. 320.771, F.S.; conforming
   35         provisions relating to certificate of title
   36         requirements for recreational vehicle dealers;
   37         providing an effective date.
   38  
   39  Be It Enacted by the Legislature of the State of Florida:
   40  
   41         Section 1. Subsections (10), (25), (26), and (36) of
   42  section 320.64, Florida Statutes, are amended, and subsection
   43  (38) is added to that section, to read:
   44         320.64 Denial, suspension, or revocation of license;
   45  grounds.—A license of a licensee under s. 320.61 may be denied,
   46  suspended, or revoked within the entire state or at any specific
   47  location or locations within the state at which the applicant or
   48  licensee engages or proposes to engage in business, upon proof
   49  that the section was violated with sufficient frequency to
   50  establish a pattern of wrongdoing, and a licensee or applicant
   51  shall be liable for claims and remedies provided in ss. 320.695
   52  and 320.697 for any violation of any of the following
   53  provisions. A licensee is prohibited from committing the
   54  following acts:
   55         (10)(a) The applicant or licensee has attempted to enter,
   56  or has entered, into a franchise agreement with a motor vehicle
   57  dealer who does not, at the time of the franchise agreement,
   58  have proper facilities to provide the services to his or her
   59  purchasers of new motor vehicles which are covered by the new
   60  motor vehicle warranty issued by the applicant or licensee.
   61         (b) Notwithstanding any provision of a franchise, a
   62  licensee may not require a motor vehicle dealer, by agreement,
   63  program, policy, standard, or otherwise, to relocate, to make
   64  substantial changes, alterations, or remodeling to, or to
   65  replace a motor vehicle dealer’s sales or service facilities
   66  unless the licensee’s requirements are reasonable and
   67  justifiable in light of the current and reasonably foreseeable
   68  projections of economic conditions, financial expectations, and
   69  the motor vehicle dealer’s market for the licensee’s motor
   70  vehicles.
   71         (c)(b) A licensee may, however, consistent with the
   72  licensee’s allocation obligations at law and to its other same
   73  line-make motor vehicle dealers, provide to a motor vehicle
   74  dealer a commitment to supply allocate additional vehicles or
   75  provide a loan or grant of money as an inducement for the motor
   76  vehicle dealer to relocate, expand, improve, remodel, alter, or
   77  renovate its facilities if the licensee delivers an assurance to
   78  the dealer that it will offer to supply to the dealer a
   79  sufficient quantity of new motor vehicles, consistent with its
   80  allocation obligations at law and to its other same line-make
   81  motor vehicle dealers, which will economically justify such
   82  relocation, expansion, improvement, remodeling, renovation, or
   83  alteration, in light of reasonably current and reasonably
   84  projected market and economic conditions. the provisions of the
   85  commitment are increase in vehicle allocation, the loan or grant
   86  and the assurance, and the basis for them must be contained in a
   87  writing written agreement voluntarily agreed to entered into by
   88  the dealer and are must be made available, on substantially
   89  similar terms, to any of the licensee’s other same line-make
   90  dealers in this state who voluntarily agree to make a
   91  substantially similar facility expansion, improvement,
   92  remodeling, alteration, or renovation with whom the licensee
   93  offers to enter into such an agreement.
   94         (d)Except as provided in paragraph (c), subsection (36),
   95  or as otherwise provided by law, this subsection does not
   96  require a licensee to provide financial support for, or
   97  contribution to, the purchase or sale of the assets of or equity
   98  in a motor vehicle dealer or a relocation of a motor vehicle
   99  dealer because such support has been provided to other
  100  purchases, sales, or relocations.
  101         (e)(c) A licensee or its common entity may shall not
  102  withhold a bonus, incentive, or other benefit that is available
  103  to its other same line-make franchised dealers in this state
  104  from, or take or threaten to take any action that is unfair or
  105  adverse to a dealer who does not enter into an agreement with
  106  the licensee pursuant to paragraph (c) (b).
  107         (d)A licensee may not refuse to offer a program, bonus,
  108  incentive, or other benefit, in whole or in part, to a dealer in
  109  this state which it offers to its other same line-make dealers
  110  nationally or in the licensee’s zone or region in which this
  111  state is included. Neither may it discriminate against a dealer
  112  in this state with respect to any program, bonus, incentive, or
  113  other benefit. For purposes of this chapter, a licensee may not
  114  establish this state alone as a zone, region, or territory by
  115  any other designation.
  116         (f)(e)This subsection does Paragraphs (a) and (b) do not
  117  affect any contract between a licensee and any of its dealers
  118  regarding relocation, expansion, improvement, remodeling,
  119  renovation, or alteration which exists on the effective date of
  120  this act.
  121         (f)Any portion of a licensee-offered program for a bonus,
  122  incentive, or other benefit that, in whole or in part, is based
  123  upon or aimed at inducing a dealer’s relocation, expansion,
  124  improvement, remodeling, renovation, or alteration of the
  125  dealer’s sales or service facility, or both, is void as to each
  126  of the licensee’s motor vehicle dealers in this state who,
  127  nevertheless, shall be eligible for the entire amount of the
  128  bonuses, incentives, or benefits offered in the program upon
  129  compliance with the other eligibility provisions in the program.
  130         (g) A licensee may set and uniformly apply reasonable
  131  standards for a motor vehicle dealer’s sales and service
  132  facilities which are related to upkeep, repair, and cleanliness.
  133         (h)A violation of paragraphs (b) through (g) is not a
  134  violation of s. 320.70 and does not subject any licensee to any
  135  criminal penalty under s. 320.70.
  136         (25) The applicant or licensee has undertaken an audit of
  137  warranty, maintenance, and other service-related payments or
  138  incentive payments, including payments to a motor vehicle dealer
  139  under any licensee-issued program, policy, or other benefit,
  140  which previously have been paid to a motor vehicle dealer in
  141  violation of this section or has failed to comply with any of
  142  its obligations under s. 320.696. An applicant or licensee may
  143  reasonably and periodically audit a motor vehicle dealer to
  144  determine the validity of paid claims as provided in s. 320.696.
  145  Audits Audit of warranty, maintenance, and other service-related
  146  payments shall only be performed by an applicant or licensee
  147  only during for the 1-year period immediately following the date
  148  the claim was paid. Audit of incentive payments shall only be
  149  for an 18-month period immediately following the date the
  150  incentive was paid. After such time periods have elapsed, all
  151  warranty, maintenance, and other service-related payments and
  152  incentive payments shall be deemed final and incontrovertible
  153  for any reason notwithstanding any otherwise applicable law, and
  154  the motor vehicle dealer shall not be subject to any charge-back
  155  or repayment. An applicant or licensee may deny a claim or, as a
  156  result of a timely conducted audit, impose a charge-back against
  157  a motor vehicle dealer for warranty, maintenance, or other
  158  service-related payments or incentive payments only if An
  159  applicant or licensee shall not deny a claim or charge a motor
  160  vehicle dealer back subsequent to the payment of the claim
  161  unless the applicant or licensee can show that the warranty,
  162  maintenance, or other service-related claim or incentive claim
  163  was false or fraudulent or that the motor vehicle dealer failed
  164  to substantially comply with the reasonable written and
  165  uniformly applied procedures of the applicant or licensee for
  166  such repairs or incentives. An applicant or licensee may not
  167  charge a motor vehicle dealer back subsequent to the payment of
  168  a warranty, maintenance, or service-related claim or incentive
  169  claim unless, within 30 days after a timely conducted audit, a
  170  representative of the applicant or licensee first meets in
  171  person, by telephone, or by video teleconference with an officer
  172  or employee of the dealer designated by the motor vehicle
  173  dealer. At such meeting the applicant or licensee must provide a
  174  detailed explanation, with supporting documentation, as to the
  175  basis for each of the claims for which the applicant or licensee
  176  proposed a charge-back to the dealer and a written statement
  177  containing the basis upon which the motor vehicle dealer was
  178  selected for audit or review. Thereafter, the applicant or
  179  licensee must provide the motor vehicle dealer’s representative
  180  a reasonable period after the meeting within which to respond to
  181  the proposed charge-backs, with such period to be commensurate
  182  with the volume of claims under consideration, but in no case
  183  less than 45 days after the meeting. The applicant or licensee
  184  is prohibited from changing or altering the basis for each of
  185  the proposed charge-backs as presented to the motor vehicle
  186  dealer’s representative following the conclusion of the audit
  187  unless the applicant or licensee receives new information
  188  affecting the basis for one or more charge-backs and that new
  189  information is received within 30 days after the conclusion of
  190  the timely conducted audit. If the applicant or licensee claims
  191  the existence of new information, the dealer must be given the
  192  same right to a meeting and right to respond as when the charge
  193  back was originally presented. After all internal dispute
  194  resolution processes provided through the applicant or licensee
  195  have been completed, the applicant or licensee shall give
  196  written notice to the motor vehicle dealer of the final amount
  197  of its proposed charge-back. If the dealer disputes that amount,
  198  the dealer may file a protest with the department within 30 days
  199  after receipt of the notice. If a protest is timely filed, the
  200  department shall notify the applicant or licensee of the filing
  201  of the protest and the applicant or licensee may not take any
  202  action to recover the amount of the proposed charge-back until
  203  the department renders a final determination, which is not
  204  subject to further appeal, that the charge-back is in compliance
  205  with the provisions of this section. In any hearing pursuant to
  206  this subsection, the applicant or licensee has the burden of
  207  proof that its audit and resulting charge-back are in compliance
  208  with this subsection.
  209         (26) Notwithstanding the terms of any franchise agreement,
  210  including any licensee’s program, policy, or procedure, the
  211  applicant or licensee has refused to allocate, sell, or deliver
  212  motor vehicles; charged back or withheld payments or other
  213  things of value for which the dealer is otherwise eligible under
  214  a sales promotion, program, or contest; prevented a motor
  215  vehicle dealer from participating in any promotion, program, or
  216  contest; or has taken or threatened to take any adverse action
  217  against a dealer, including charge-backs, reducing vehicle
  218  allocations, or terminating or threatening to terminate a
  219  franchise because the dealer sold or leased a motor vehicle to a
  220  customer who exported the vehicle to a foreign country or who
  221  resold the vehicle, unless the licensee proves that the dealer
  222  knew or reasonably should have known had actual knowledge that
  223  the customer intended to export or resell the motor vehicle.
  224  There is a rebuttable conclusive presumption that the dealer
  225  neither knew nor reasonably should have known of its customer’s
  226  intent to export or resell the vehicle had no actual knowledge
  227  if the vehicle is titled or registered in any state in this
  228  country. A licensee may not take any action against a motor
  229  vehicle dealer, including reducing its allocations or supply of
  230  motor vehicles to the dealer, or charging back a dealer for an
  231  incentive payment previously paid, unless the licensee first
  232  meets in person, by telephone, or video conference with an
  233  officer or other designated employee of the dealer. At such
  234  meeting, the licensee must provide a detailed explanation, with
  235  supporting documentation, as to the basis for its claim that the
  236  dealer knew or reasonably should have known of the customer’s
  237  intent to export or resell the motor vehicle. Thereafter, the
  238  motor vehicle dealer shall have a reasonable period,
  239  commensurate with the number of motor vehicles at issue, but not
  240  less than 15 days, to respond to the licensee’s claims. If,
  241  following the dealer’s response and completion of all internal
  242  dispute resolution processes provided through the applicant or
  243  licensee, the dispute remains unresolved, the dealer may file a
  244  protest with the department within 30 days after receipt of a
  245  written notice from the licensee that it still intends to take
  246  adverse action against the dealer with respect to the motor
  247  vehicles still at issue. If a protest is timely filed, the
  248  department shall notify the applicant or licensee of the filing
  249  of the protest and the applicant or licensee may not take any
  250  action adverse to the dealer until the department renders a
  251  final determination, which is not subject to further appeal,
  252  that the licensee’s proposed action is in compliance with the
  253  provisions of this subsection. In any hearing pursuant to this
  254  subsection, the applicant or licensee has the burden of proof on
  255  all issues raised by this subsection.
  256         (36)(a) Notwithstanding the terms of any franchise
  257  agreement, in addition to any other statutory or contractual
  258  rights of recovery after the voluntary or involuntary
  259  termination, cancellation, or nonrenewal of a franchise, failing
  260  to pay the motor vehicle dealer, as provided in paragraph (d)
  261  within 90 days after the effective date of the termination,
  262  cancellation, or nonrenewal, the following amounts:
  263         1. The net cost paid by the dealer for each new car or
  264  truck in the dealer’s inventory with mileage of 2,000 miles or
  265  less, or a motorcycle with mileage of 100 miles or less,
  266  exclusive of mileage placed on the vehicle before it was
  267  delivered to the dealer.
  268         2. The current price charged for each new, unused,
  269  undamaged, or unsold part or accessory that:
  270         a. Is in the current parts catalogue and is still in the
  271  original, resalable merchandising package and in an unbroken
  272  lot, except that sheet metal may be in a comparable substitute
  273  for the original package; and
  274         b. Was purchased by the dealer directly from the
  275  manufacturer or distributor or from an outgoing authorized
  276  dealer as a part of the dealer’s initial inventory.
  277         3. The fair market value of each undamaged sign owned by
  278  the dealer which bears a trademark or trade name used or claimed
  279  by the applicant or licensee or its representative which was
  280  purchased from or at the request of the applicant or licensee or
  281  its representative.
  282         4. The fair market value of all special tools, data
  283  processing equipment, and automotive service equipment owned by
  284  the dealer which:
  285         a. Were recommended in writing by the applicant or licensee
  286  or its representative and designated as special tools and
  287  equipment;
  288         b. Were purchased from or at the request of the applicant
  289  or licensee or its representative; and
  290         c. Are in usable and good condition except for reasonable
  291  wear and tear.
  292         5. The cost of transporting, handling, packing, storing,
  293  and loading any property subject to repurchase under this
  294  section.
  295         (b)If the termination, cancellation, or nonrenewal of the
  296  dealer’s franchise is the result of the bankruptcy or
  297  reorganization of a licensee or its common entity, or the result
  298  of a licensee’s plan, scheme, or policy, whether or not publicly
  299  declared, which is intended to or has the effect of decreasing
  300  the number of, or eliminating, the licensee’s franchised motor
  301  vehicle dealers of a line-make in this state, or the result of a
  302  termination, elimination, or cessation of manufacture or
  303  reorganization of a licensee or its common entity, or the result
  304  of a termination, elimination, or cessation of manufacture or
  305  distribution of a line-make, in addition to the above payments
  306  to the dealer, the licensee or its common entity, shall be
  307  liable to and shall pay the motor vehicle dealer for an amount
  308  at least equal to the fair market value of the franchise for the
  309  line-make, which shall be the greater of the value determined as
  310  of the day the licensee announces the action that results in the
  311  termination, cancellation, or nonrenewal, or the value
  312  determined on the day that is 12 months before that date. Fair
  313  market value of the franchise for the line-make includes only
  314  the goodwill value of the dealer’s franchise for that line-make
  315  in the dealer’s community or territory.
  316         (c)(b) This subsection does not apply to a termination,
  317  cancellation, or nonrenewal that is implemented as a result of
  318  the sale of the assets or corporate stock or other ownership
  319  interests of the dealer.
  320         (d) The dealer shall return the property listed in this
  321  subsection to the licensee within 90 days after the effective
  322  date of the termination, cancellation, or nonrenewal. The
  323  licensee shall supply the dealer with reasonable instructions
  324  regarding the method by which the dealer must return the
  325  property. Absent shipping instructions and prepayment of
  326  shipping costs from the licensee or its common entity, the
  327  dealer shall tender the inventory and other items to be returned
  328  at the dealer’s facility. The compensation for the property
  329  shall be paid by the licensee or its common entity
  330  simultaneously with within 60 days after the tender of inventory
  331  and other items, provided that, if the dealer does not have has
  332  clear title to the inventory and other items and is not in a
  333  position to convey that title to the licensee, manufacturer or
  334  distributor. If the inventory or other items are subject to a
  335  security interest, the licensee may make payment for the
  336  property being returned may be made jointly to the dealer and
  337  the holder of any the security interest.
  338         (38)The applicant or licensee has failed or refused to
  339  offer a bonus, incentive, or other benefit program, in whole or
  340  in part, to a dealer or dealers in this state which it offers to
  341  all of its other same line-make dealers nationally or to all of
  342  its other same line-make dealers in the licensee’s designated
  343  zone, region, or other licensee-designated area of which this
  344  state is a part, unless the failure or refusal to offer the
  345  program in this state is reasonably supported by substantially
  346  different economic or marketing considerations than are
  347  applicable to the licensee’s same line-make dealers in this
  348  state. For purposes of this chapter, a licensee may not
  349  establish this state alone as a designated zone, region, or area
  350  or any other designation for a specified territory. A licensee
  351  may offer a bonus, rebate, incentive, or other benefit program
  352  to its dealers in this state which is calculated or paid on a
  353  per vehicle basis and is related in part to a dealer’s facility
  354  or the expansion, improvement, remodeling, alteration, or
  355  renovation of a dealer’s facility. Any dealer who does not
  356  comply with the facility criteria or eligibility requirements of
  357  such program is entitled to receive a reasonable percentage of
  358  the bonus, incentive, rebate, or other benefit offered by the
  359  licensee under that program by complying with the criteria or
  360  eligibility requirements unrelated to the dealer’s facility
  361  under that program. For purposes of the previous sentence, the
  362  percentage unrelated to the facility criteria or requirements is
  363  presumed to be “reasonable” if it is not less than 80 percent of
  364  the total of the per vehicle bonus, incentive, rebate, or other
  365  benefits offered under the program.
  366  
  367  A motor vehicle dealer who can demonstrate that a violation of,
  368  or failure to comply with, any of the preceding provisions by an
  369  applicant or licensee will or can adversely and pecuniarily
  370  affect the complaining dealer, shall be entitled to pursue all
  371  of the remedies, procedures, and rights of recovery available
  372  under ss. 320.695 and 320.697.
  373         Section 2. Subsections (1) and (3) of section 320.642,
  374  Florida Statutes, are amended to read:
  375         320.642 Dealer licenses in areas previously served;
  376  procedure.—
  377         (1) Any licensee who proposes to establish an additional
  378  motor vehicle dealership or permit the relocation of an existing
  379  dealer to a location within a community or territory where the
  380  same line-make vehicle is presently represented by a franchised
  381  motor vehicle dealer or dealers shall give written notice of its
  382  intention to the department. The Such notice shall state:
  383         (a) The specific location at which the additional or
  384  relocated motor vehicle dealership will be established.
  385         (b) The date on or after which the licensee intends to be
  386  engaged in business with the additional or relocated motor
  387  vehicle dealer at the proposed location.
  388         (c) The identity of all motor vehicle dealers who are
  389  franchised to sell the same line-make vehicle with licensed
  390  locations in the county and or any contiguous county to the
  391  county where the additional or relocated motor vehicle dealer is
  392  proposed to be located.
  393         (d) The names and addresses of the dealer-operator and
  394  principal investors in the proposed additional or relocated
  395  motor vehicle dealership.
  396  
  397  Immediately upon receipt of the such notice the department shall
  398  cause a notice to be published in the Florida Administrative
  399  Weekly. The published notice shall state that a petition or
  400  complaint by any dealer with standing to protest pursuant to
  401  subsection (3) must be filed not more than 30 days from the date
  402  of publication of the notice in the Florida Administrative
  403  Weekly. The published notice shall describe and identify the
  404  proposed dealership sought to be licensed, and the department
  405  shall cause a copy of the notice to be mailed to those dealers
  406  identified in the licensee’s notice under paragraph (c).
  407         (3) An existing franchised motor vehicle dealer or dealers
  408  shall have standing to protest a proposed additional or
  409  relocated motor vehicle dealer when where the existing motor
  410  vehicle dealer or dealers have a franchise agreement for the
  411  same line-make vehicle to be sold or serviced by the proposed
  412  additional or relocated motor vehicle dealer and are physically
  413  located so as to meet or satisfy any of the following
  414  requirements or conditions:
  415         (a) If the proposed additional or relocated motor vehicle
  416  dealer is to be located in a county with a population of less
  417  than 300,000 according to the most recent data of the United
  418  States Census Bureau or the data of the Bureau of Economic and
  419  Business Research of the University of Florida:
  420         1. The proposed additional or relocated motor vehicle
  421  dealer is to be located in the area designated or described as
  422  the area of responsibility, or such similarly designated area,
  423  including the entire area designated as a multiple-point area,
  424  in the franchise agreement or in any related document or
  425  commitment with the existing motor vehicle dealer or dealers of
  426  the same line-make as such agreement existed upon October 1,
  427  1988;
  428         2. The existing motor vehicle dealer or dealers of the same
  429  line-make have a licensed franchise location within a radius of
  430  20 miles of the location of the proposed additional or relocated
  431  motor vehicle dealer; or
  432         3. Any existing motor vehicle dealer or dealers of the same
  433  line-make can establish that during any 12-month period of the
  434  36-month period preceding the filing of the licensee’s
  435  application for the proposed dealership, the such dealer or its
  436  predecessor made 25 percent of its retail sales of new motor
  437  vehicles to persons whose registered household addresses were
  438  located within a radius of 20 miles of the location of the
  439  proposed additional or relocated motor vehicle dealer; provided
  440  the such existing dealer is located in the same county or any
  441  county contiguous to the county where the additional or
  442  relocated dealer is proposed to be located.
  443         (b) If the proposed additional or relocated motor vehicle
  444  dealer is to be located in a county with a population of more
  445  than 300,000 according to the most recent data of the United
  446  States Census Bureau or the data of the Bureau of Economic and
  447  Business Research of the University of Florida:
  448         1. Any existing motor vehicle dealer or dealers of the same
  449  line-make have a licensed franchise location within a radius of
  450  12.5 miles of the location of the proposed additional or
  451  relocated motor vehicle dealer; or
  452         2. Any existing motor vehicle dealer or dealers of the same
  453  line-make can establish that during any 12-month period of the
  454  36-month period preceding the filing of the licensee’s
  455  application for the proposed dealership, such dealer or its
  456  predecessor made 25 percent of its retail sales of new motor
  457  vehicles to persons whose registered household addresses were
  458  located within a radius of 12.5 miles of the location of the
  459  proposed additional or relocated motor vehicle dealer; provided
  460  such existing dealer is located in the same county or any county
  461  contiguous to the county where the additional or relocated
  462  dealer is proposed to be located.
  463         Section 3. Section 320.643, Florida Statutes, is amended to
  464  read:
  465         320.643 Transfer, assignment, or sale of franchise
  466  agreements.—
  467         (1)(a) Notwithstanding the terms of any franchise
  468  agreement, a licensee shall not, by contract or otherwise, fail
  469  or refuse to give effect to, prevent, prohibit, or penalize or
  470  attempt to refuse to give effect to, prohibit, or penalize any
  471  motor vehicle dealer from selling, assigning, transferring,
  472  alienating, or otherwise disposing of its franchise agreement to
  473  any other person or persons, including a corporation established
  474  or existing for the purpose of owning or holding a franchise
  475  agreement, unless the licensee proves at a hearing pursuant to a
  476  complaint filed by a motor vehicle dealer under this section
  477  that the such sale, transfer, alienation, or other disposition
  478  is to a person who is not, or whose controlling executive
  479  management is not, of good moral character or does not meet the
  480  written, reasonable, and uniformly applied standards or
  481  qualifications of the licensee relating to financial
  482  qualifications of the transferee and business experience of the
  483  transferee or the transferee’s executive management. A motor
  484  vehicle dealer who desires to sell, assign, transfer, alienate,
  485  or otherwise dispose of a franchise shall notify, or cause the
  486  proposed transferee to notify, the licensee, in writing, setting
  487  forth the prospective transferee’s name, address, financial
  488  qualifications, and business experience during the previous 5
  489  years. A licensee who receives such notice may, within 60 days
  490  following such receipt, notify the motor vehicle dealer, in
  491  writing, that the proposed transferee is not a person qualified
  492  to be a transferee under this section and setting forth the
  493  material reasons for such rejection. Failure of the licensee to
  494  notify the motor vehicle dealer within the 60-day period of such
  495  rejection shall be deemed an approval of the transfer. No such
  496  transfer, assignment assign, or sale shall be valid unless the
  497  transferee agrees in writing to comply with all requirements of
  498  the franchise then in effect, but with the ownership changed to
  499  the transferee.
  500         (b) A motor vehicle dealer whose proposed sale is rejected
  501  may, within 60 days following such receipt of such rejection,
  502  file with the department a complaint for a determination that
  503  the proposed transferee has been rejected in violation of this
  504  section. The licensee has the burden of proof with respect to
  505  all issues raised by the such complaint. The department shall
  506  determine, and enter an order providing, that the proposed
  507  transferee is either qualified or is not and cannot be qualified
  508  for specified reasons, or the order may provide the conditions
  509  under which a proposed transferee would be qualified. If the
  510  licensee fails to file such a response to the motor vehicle
  511  dealer’s complaint within 30 days after receipt of the
  512  complaint, unless the parties agree in writing to an extension,
  513  or if the department, after a hearing, renders a decision other
  514  than one disqualifying the proposed transferee, the franchise
  515  agreement between the motor vehicle dealer and the licensee is
  516  shall be deemed amended to incorporate such transfer or amended
  517  in accordance with the determination and order rendered,
  518  effective upon compliance by the proposed transferee with any
  519  conditions set forth in the determination or order.
  520         (2)(a) Notwithstanding the terms of any franchise
  521  agreement, a licensee shall not, by contract or otherwise, fail
  522  or refuse to give effect to, prevent, prohibit, or penalize, or
  523  attempt to refuse to give effect to, prevent, prohibit, or
  524  penalize, any motor vehicle dealer or any proprietor, partner,
  525  stockholder, owner, or other person who holds or otherwise owns
  526  an interest therein from selling, assigning, transferring,
  527  alienating, or otherwise disposing of, in whole or in part, the
  528  equity interest of any of them in such motor vehicle dealer to
  529  any other person or persons, including a corporation established
  530  or existing for the purpose of owning or holding the stock or
  531  ownership interests of other entities, unless the licensee
  532  proves at a hearing pursuant to a complaint filed by a motor
  533  vehicle dealer under this section that the such sale, transfer,
  534  alienation, or other disposition is to a person who is not, or
  535  whose controlling executive management is not, of good moral
  536  character. A motor vehicle dealer, or any proprietor, partner,
  537  stockholder, owner, or other person who holds or otherwise owns
  538  an interest in the motor vehicle dealer, who desires to sell,
  539  assign, transfer, alienate, or otherwise dispose of any interest
  540  in such motor vehicle dealer shall notify, or cause the proposed
  541  transferee to so notify, the licensee, in writing, of the
  542  identity and address of the proposed transferee. A licensee who
  543  receives such notice may, within 60 days following such receipt,
  544  notify the motor vehicle dealer in writing that the proposed
  545  transferee is not a person qualified to be a transferee under
  546  this section and setting forth the material reasons for such
  547  rejection. Failure of the licensee to notify the motor vehicle
  548  dealer within the 60-day period of such rejection shall be
  549  deemed an approval of the transfer. Any person whose proposed
  550  sale of stock is rejected may file within 60 days of receipt of
  551  such rejection a complaint with the department alleging that the
  552  rejection was in violation of the law or the franchise
  553  agreement. The licensee has the burden of proof with respect to
  554  all issues raised by such complaint. The department shall
  555  determine, and enter an order providing, that the proposed
  556  transferee either is qualified or is not and cannot be qualified
  557  for specified reasons; or the order may provide the conditions
  558  under which a proposed transferee would be qualified. If the
  559  licensee fails to file a response to the motor vehicle dealer’s
  560  complaint within 30 days of receipt of the complaint, unless the
  561  parties agree in writing to an extension, or if the department,
  562  after a hearing, renders a decision on the complaint other than
  563  one disqualifying the proposed transferee, the transfer shall be
  564  deemed approved in accordance with the determination and order
  565  rendered, effective upon compliance by the proposed transferee
  566  with any conditions set forth in the determination or order.
  567         (b)Notwithstanding paragraph (a), a licensee may not
  568  reject a proposed transfer of a legal, equitable, or beneficial
  569  interest in a motor vehicle dealer to a trust or other entity,
  570  or to any beneficiary thereof, which is established by an owner
  571  of any interest in a motor vehicle dealer for purposes of estate
  572  planning, if the controlling person of the trust or entity, or
  573  the beneficiary, is of good moral character.
  574         (3)A licensee may not condition any proposed transfer
  575  under this section upon a relocation of a dealer, construction
  576  of any addition or modification to, or any refurbishing or
  577  remodeling of any dealership structure, facility, or building of
  578  the existing motor vehicle dealer, or upon any modification of
  579  the existing franchise agreement, except for the change of
  580  ownership.
  581         (4)(3) During the pendency of any such hearing, the
  582  franchise agreement of the motor vehicle dealer shall continue
  583  in effect in accordance with its terms. The department shall
  584  expedite any determination requested under this section.
  585         (5)(4) Notwithstanding the terms of any franchise
  586  agreement, the acceptance by the licensee of the proposed
  587  transferee shall not be unreasonably withheld. For the purposes
  588  of this section, the refusal by the licensee to accept, in a
  589  timely manner, a proposed transferee who satisfies the criteria
  590  set forth in subsection (1) or subsection (2) is presumed to be
  591  unreasonable.
  592         (6)(5) It shall be a violation of this section for the
  593  licensee to reject or withhold approval of a proposed transfer
  594  unless the licensee can prove in any court of competent
  595  jurisdiction in defense of any claim brought pursuant to s.
  596  320.697 that, in fact, the rejection or withholding of approval
  597  of the proposed transfer was not in violation of or precluded by
  598  this section and was reasonable. The determination of whether
  599  such rejection or withholding was not in violation of or
  600  precluded by this section and was reasonable shall be based on
  601  an objective standard. Alleging the permitted statutory grounds
  602  by the licensee in the written rejection of the proposed
  603  transfer shall not protect the licensee from liability for
  604  violating this section.
  605         Section 4. Subsection (6) of section 320.696, Florida
  606  Statutes, is amended to read:
  607         320.696 Warranty responsibility.—
  608         (6) A licensee shall not recover or attempt to recover,
  609  directly or indirectly, any of its costs for compensating a
  610  motor vehicle dealer under this section, including by decreasing
  611  or eliminating solely in this state or as it relates to any of
  612  its dealers, any bonuses or other incentive that the licensee
  613  has in effect nationally, regionally, or in a territory by any
  614  other designation; by reducing the dealer’s gross margin for any
  615  of the licensee’s products or services where the wholesale price
  616  charged to the dealer is determined by the licensee and the
  617  reduction is not in effect nationally or regionally; by imposing
  618  a separate charge or surcharge to the wholesale price paid by a
  619  dealer in this state for any product or service offered to or
  620  supplied by a licensee under a franchise agreement with the
  621  dealer; or by passing on to the dealer any charge or surcharge
  622  of a common entity of the licensee.
  623         Section 5. If any provision of this act or the application
  624  thereof to any person or circumstance is held invalid, the
  625  invalidity does not affect other provisions or applications of
  626  the act which can be given effect without the invalid provision
  627  or application, and to this end the provisions of this act are
  628  severable.
  629         Section 6. Subsection (10) of section 320.771, Florida
  630  Statutes, is amended to read:
  631         320.771 License required of recreational vehicle dealers.—
  632         (10) EVIDENCE OF TITLE REQUIRED.—
  633         (a) The licensee shall also have in his or her possession
  634  for each new recreational vehicle a manufacturer’s invoice or
  635  statement of origin, and for each used recreational vehicle a
  636  properly assigned certificate of title or registration
  637  certificate if the used recreational vehicle was previously
  638  registered in a nontitle state, from the time the recreational
  639  vehicle is delivered to the licensee until it has been disposed
  640  of by the licensee.
  641         (b)For each used recreational vehicle in the possession of
  642  a licensee and offered for sale by him or her, the licensee
  643  either shall have in his or her possession or control a duly
  644  assigned certificate of title from the owner in accordance with
  645  the provisions of chapter 319,or a registration certificate if
  646  the used recreational vehicle was previously registered in a
  647  nontitle state, from the time when the vehicle is delivered to
  648  the licensee and offered for sale by him or her until it has
  649  been disposed of by the licensee, or shall have reasonable
  650  indicia of ownership or right of possession, or shall have made
  651  proper application for a certificate of title or duplicate
  652  certificate of title in accordance with the provisions of
  653  chapter 319. A dealer may not sell or offer for sale a vehicle
  654  in his or her possession unless the dealer satisfies the
  655  requirements of this subsection. Reasonable indicia of ownership
  656  shall include a duly assigned certificate of title; in the case
  657  of a new vehicle, a manufacturer’s certificate of origin issued
  658  to or reassigned to the dealer; a consignment contract between
  659  the owner and the dealer along with a secure power of attorney
  660  from the owner to the dealer authorizing the dealer to apply for
  661  a duplicate certificate of title and assign the title on behalf
  662  of the owner; a court order awarding title to the vehicle to the
  663  dealer; a salvage certificate of title; a photocopy of a duly
  664  assigned certificate of title being held by a financial
  665  institution as collateral for a business loan of money to the
  666  dealer (“floor plan”); a copy of a canceled check or other
  667  documentation evidencing that an outstanding lien on a vehicle
  668  taken in trade by a licensed dealer has been satisfied and that
  669  the certificate of title will be, but has not yet been, received
  670  by the dealer; a vehicle purchase order or installment contract
  671  for a specific vehicle identifying that vehicle as a trade-in on
  672  a replacement vehicle; or a duly executed odometer disclosure
  673  statement as required by Title IV of the Motor Vehicle
  674  Information and Cost Savings Act of 1972 (Pub. L. No. 92-513, as
  675  amended by Pub. L. No. 94-364 and Pub. L. No. 100-561) and by 49
  676  C.F.R. part 580 bearing the signatures of the titled owners of a
  677  traded-in vehicle.
  678         Section 7. This act shall take effect upon becoming a law.