Florida Senate - 2017 COMMITTEE AMENDMENT
Bill No. SB 1678
Ì678360+Î678360
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/04/2017 .
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The Committee on Transportation (Garcia) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 320.64, Florida Statutes, is amended to
6 read:
7 320.64 Denial, suspension, or revocation of license;
8 grounds.—A license of a licensee under s. 320.61 may be denied,
9 suspended, or revoked within the entire state or at any specific
10 location or locations within the state at which the applicant or
11 licensee engages or proposes to engage in business, upon proof
12 that the section was violated with sufficient frequency to
13 establish a pattern of wrongdoing, and a licensee or applicant
14 shall be liable for claims and remedies provided in ss. 320.695
15 and 320.697 for any violation of any of the following
16 provisions. A licensee is prohibited from committing the
17 following acts:
18 (1) The applicant or licensee is determined to be unable to
19 carry out contractual obligations with its motor vehicle
20 dealers.
21 (2) The applicant or licensee has knowingly made a material
22 misstatement in its application for a license.
23 (3) The applicant or licensee willfully has failed to
24 comply with significant provisions of ss. 320.60-320.70 or with
25 any lawful rule or regulation adopted or promulgated by the
26 department.
27 (4) The applicant or licensee has indulged in any illegal
28 act relating to his or her business.
29 (5) The applicant or licensee has coerced or attempted to
30 coerce any motor vehicle dealer into accepting delivery of any
31 motor vehicle or vehicles or parts or accessories therefor or
32 any other commodities which have not been ordered by the dealer.
33 (6) The applicant or licensee has coerced or attempted to
34 coerce any motor vehicle dealer to enter into any agreement with
35 the licensee.
36 (7) The applicant or licensee has threatened to
37 discontinue, cancel, or not to renew a franchise agreement of a
38 licensed motor vehicle dealer, where the threatened
39 discontinuation, cancellation, or nonrenewal, if implemented,
40 would be in violation of any of the provisions of s. 320.641.
41 (8) The applicant or licensee discontinued, canceled, or
42 failed to renew, a franchise agreement of a licensed motor
43 vehicle dealer in violation of any of the provisions of s.
44 320.641.
45 (9) The applicant or licensee has threatened to modify or
46 replace, or has modified or replaced, a franchise agreement with
47 a succeeding franchise agreement which would adversely alter the
48 rights or obligations of a motor vehicle dealer under an
49 existing franchise agreement or which substantially impairs the
50 sales, service obligations, or investment of the motor vehicle
51 dealer.
52 (10)(a) The applicant or licensee has attempted to enter,
53 or has entered, into a franchise agreement with a motor vehicle
54 dealer who does not, at the time of the franchise agreement,
55 have proper facilities to provide the services to his or her
56 purchasers of new motor vehicles which are covered by the new
57 motor vehicle warranty issued by the applicant or licensee.
58 (b) Notwithstanding any provision of a franchise, a
59 licensee may not require a motor vehicle dealer, by agreement,
60 program, policy, standard, or otherwise, to make substantial
61 changes, alterations, or remodeling to, or to replace a motor
62 vehicle dealer’s sales or service facilities unless the
63 licensee’s requirements are reasonable and justifiable in light
64 of the current and reasonably foreseeable projections of
65 economic conditions, financial expectations, and the motor
66 vehicle dealer’s market for the licensee’s motor vehicles.
67 (c) A licensee may, however, consistent with the licensee’s
68 allocation obligations at law and to its other same line-make
69 motor vehicle dealers, provide to a motor vehicle dealer a
70 commitment to supply additional vehicles or provide a loan or
71 grant of money as an inducement for the motor vehicle dealer to
72 expand, improve, remodel, alter, or renovate its facilities if
73 the provisions of the commitment are contained in a writing
74 voluntarily agreed to by the dealer and are made available, on
75 substantially similar terms, to any of the licensee’s other same
76 line-make dealers in this state who voluntarily agree to make a
77 substantially similar facility expansion, improvement,
78 remodeling, alteration, or renovation.
79 (d) Except as provided in paragraph (c), subsection (36),
80 or as otherwise provided by law, this subsection does not
81 require a licensee to provide financial support for, or
82 contribution to, the purchase or sale of the assets of or equity
83 in a motor vehicle dealer or a relocation of a motor vehicle
84 dealer because such support has been provided to other
85 purchases, sales, or relocations.
86 (e) A licensee or its common entity may not take or
87 threaten to take any action that is unfair or adverse to a
88 dealer who does not enter into an agreement with the licensee
89 pursuant to paragraph (c).
90 (f) This subsection does not affect any contract between a
91 licensee and any of its dealers regarding relocation, expansion,
92 improvement, remodeling, renovation, or alteration which exists
93 on the effective date of this act.
94 (g) A licensee may set and uniformly apply reasonable
95 standards for a motor vehicle dealer’s sales and service
96 facilities which are related to upkeep, repair, and cleanliness.
97 (h) A violation of paragraphs (b) through (g) is not a
98 violation of s. 320.70 and does not subject any licensee to any
99 criminal penalty under s. 320.70.
100 (i)1. If an applicant or licensee establishes a program,
101 standard, or policy or in any manner offers a bonus, incentive,
102 rebate, or other benefit to a motor vehicle dealer which is
103 based, in whole or in part, on the construction of new sales or
104 service facilities or the remodeling, improvement, renovation,
105 expansion, replacement, or other alteration of the motor vehicle
106 dealer’s existing sales or service facilities, including
107 installation of signs or other image elements, a motor vehicle
108 dealer who completes such construction, alteration, or
109 installation in reliance upon such program, standard, policy,
110 bonus, incentive, rebate, or other benefit is deemed to be in
111 full compliance with the applicant’s or licensee’s requirements
112 related to the new, remodeled, improved, renovated, expanded,
113 replaced, or altered facilities, signs, and image elements for
114 10 years after such completion.
115 2. If, during such 10-year period, the applicant or
116 licensee revises an existing, or establishes a new, program,
117 standard, policy, bonus, incentive, rebate, or other benefit
118 described in subparagraph 1., a motor vehicle dealer who
119 completed a facility in reliance upon a prior program, standard,
120 policy, bonus, incentive, rebate, or other benefit and elects
121 not to comply with the applicant’s or licensee’s requirements
122 for facilities, signs, or image elements under the revised or
123 new program, standard, policy, bonus, incentive, rebate, or
124 other benefit will not be eligible for any benefit under the
125 revised or new program but shall remain entitled to all benefits
126 under the prior program, plus any increase in benefits between
127 the prior and revised or new programs, during the remainder of
128 the 10-year period.
129
130 This paragraph does not obviate, affect, alter, or diminish the
131 provisions of subsection (38).
132 (11) The applicant or licensee has coerced a motor vehicle
133 dealer to provide installment financing for the motor vehicle
134 dealer’s purchasers with a specified financial institution.
135 (12) The applicant or licensee has advertised, printed,
136 displayed, published, distributed, broadcast, or televised, or
137 caused or permitted to be advertised, printed, displayed,
138 published, distributed, broadcast, or televised, in any manner
139 whatsoever, any statement or representation with regard to the
140 sale or financing of motor vehicles which is false, deceptive,
141 or misleading.
142 (13) The applicant or licensee has sold, exchanged, or
143 rented a motorcycle which produces in excess of 5 brake
144 horsepower, knowing the use thereof to be by, or intended for,
145 the holder of a restricted Florida driver license.
146 (14) The applicant or licensee has engaged in previous
147 conduct which would have been a ground for revocation or
148 suspension of a license if the applicant or licensee had been
149 licensed.
150 (15) The applicant or licensee, directly or indirectly,
151 through the actions of any parent of the licensee, subsidiary of
152 the licensee, or common entity causes a termination,
153 cancellation, or nonrenewal of a franchise agreement by a
154 present or previous distributor or importer unless, by the
155 effective date of such action, the applicant or licensee offers
156 the motor vehicle dealer whose franchise agreement is
157 terminated, canceled, or not renewed a franchise agreement
158 containing substantially the same provisions contained in the
159 previous franchise agreement or files an affidavit with the
160 department acknowledging its undertaking to assume and fulfill
161 the rights, duties, and obligations of its predecessor
162 distributor or importer under the terminated, canceled, or
163 nonrenewed franchise agreement and the same is reinstated.
164 (16) Notwithstanding the terms of any franchise agreement,
165 the applicant or licensee prevents or refuses to accept the
166 succession to any interest in a franchise agreement by any legal
167 heir or devisee under the will of a motor vehicle dealer or
168 under the laws of descent and distribution of this state;
169 provided, the applicant or licensee is not required to accept a
170 succession where such heir or devisee does not meet licensee’s
171 written, reasonable, and uniformly applied minimal standard
172 qualifications for dealer applicants or which, after notice and
173 administrative hearing pursuant to chapter 120, is demonstrated
174 to be detrimental to the public interest or to the
175 representation of the applicant or licensee. Nothing contained
176 herein, however, shall prevent a motor vehicle dealer, during
177 his or her lifetime, from designating any person as his or her
178 successor in interest by written instrument filed with and
179 accepted by the applicant or licensee. A licensee who rejects
180 the successor transferee under this subsection shall have the
181 burden of establishing in any proceeding where such rejection is
182 in issue that the rejection of the successor transferee complies
183 with this subsection.
184 (17) The applicant or licensee has included in any
185 franchise agreement with a motor vehicle dealer terms or
186 provisions that are contrary to, prohibited by, or otherwise
187 inconsistent with the provisions contained in ss. 320.60-320.70,
188 or has failed to include in such franchise agreement a provision
189 conforming to the requirements of s. 320.63(3).
190 (18) The applicant or licensee has established a system of
191 motor vehicle allocation or distribution or has implemented a
192 system of allocation or distribution of motor vehicles to one or
193 more of its franchised motor vehicle dealers which reduces or
194 alters allocations or supplies of new motor vehicles to the
195 dealer to achieve, directly or indirectly, a purpose that is
196 prohibited by ss. 320.60-320.70, or which otherwise is unfair,
197 inequitable, unreasonably discriminatory, or not supportable by
198 reason and good cause after considering the equities of the
199 affected motor vehicles dealer or dealers. An applicant or
200 licensee shall maintain for 3 years records that describe its
201 methods or formula of allocation and distribution of its motor
202 vehicles and records of its actual allocation and distribution
203 of motor vehicles to its motor vehicle dealers in this state. As
204 used in this subsection, “unfair” includes, without limitation,
205 the refusal or failure to offer to any dealer an equitable
206 supply of new vehicles under its franchise, by model, mix, or
207 colors as the licensee offers or allocates to its other same
208 line-make dealers in the state.
209 (19) The applicant or licensee, without good and fair
210 cause, has delayed, refused, or failed to provide a supply of
211 motor vehicles by series in reasonable quantities, including the
212 models publicly advertised by the applicant or licensee as being
213 available, or has delayed, refused, or failed to deliver motor
214 vehicle parts and accessories within a reasonable time after
215 receipt of an order by a franchised dealer. However, this
216 subsection is not violated if such failure is caused by acts or
217 causes beyond the control of the applicant or licensee.
218 (20) The applicant or licensee has required, or threatened
219 to require, a motor vehicle dealer to prospectively assent to a
220 release, assignment, novation, waiver, or estoppel, which
221 instrument or document operates, or is intended by the applicant
222 or licensee to operate, to relieve any person from any liability
223 or obligation under the provisions of ss. 320.60-320.70.
224 (21) The applicant or licensee has threatened or coerced a
225 motor vehicle dealer toward conduct or action whereby the dealer
226 would waive or forego its right to protest the establishment or
227 relocation of a motor vehicle dealer in the community or
228 territory serviced by the threatened or coerced dealer.
229 (22) The applicant or licensee has refused to deliver, in
230 reasonable quantities and within a reasonable time, to any duly
231 licensed motor vehicle dealer who has an agreement with such
232 applicant or licensee for the retail sale of new motor vehicles
233 and parts for motor vehicles sold or distributed by the
234 applicant or licensee, any such motor vehicles or parts as are
235 covered by such agreement. Such refusal includes the failure to
236 offer to its same line-make franchised motor vehicle dealers all
237 models manufactured for that line-make, or requiring a dealer to
238 pay any extra fee, require a dealer to execute a separate
239 franchise agreement, purchase unreasonable advertising displays
240 or other materials, or relocate, expand, improve, remodel,
241 renovate, recondition, or alter the dealer’s existing
242 facilities, or provide exclusive facilities as a prerequisite to
243 receiving a model or series of vehicles. However, the failure to
244 deliver any motor vehicle or part will not be considered a
245 violation of this section if the failure is due to an act of
246 God, work stoppage, or delay due to a strike or labor
247 difficulty, a freight embargo, product shortage, or other cause
248 over which the applicant or licensee has no control. An
249 applicant or licensee may impose reasonable requirements on the
250 motor vehicle dealer, other than the items listed above,
251 including, but not limited to, the purchase of special tools
252 required to properly service a motor vehicle and the undertaking
253 of sales person or service person training related to the motor
254 vehicle.
255 (23) The applicant or licensee has competed or is competing
256 with respect to any activity covered by the franchise agreement
257 with a motor vehicle dealer of the same line-make located in
258 this state with whom the applicant or licensee has entered into
259 a franchise agreement, except as permitted in s. 320.645.
260 (24) The applicant or licensee has sold a motor vehicle to
261 any retail consumer in the state except through a motor vehicle
262 dealer holding a franchise agreement for the line-make that
263 includes the motor vehicle. This section does not apply to sales
264 by the applicant or licensee of motor vehicles to its current
265 employees, employees of companies affiliated by common
266 ownership, charitable not-for-profit-organizations, and the
267 federal government.
268 (25) The applicant or licensee has undertaken or engaged in
269 an audit of warranty, maintenance, and other service-related
270 payments or incentive payments, including payments to a motor
271 vehicle dealer under any licensee-issued program, policy, or
272 other benefit, which were previously paid to a motor vehicle
273 dealer in violation of this section or has failed to comply with
274 any of its obligations under s. 320.696. An applicant or
275 licensee may reasonably and periodically audit a motor vehicle
276 dealer to determine the validity of paid claims as provided in
277 s. 320.696. Audits of warranty, maintenance, and other service
278 related payments shall be performed by an applicant or licensee
279 only during the 12-month period immediately following the date
280 the claim was paid. Audits of incentive payments shall be
281 performed only during the 12-month period immediately following
282 the date the incentive was paid. As used in this section, the
283 term “incentive” includes any bonus, incentive, or other
284 monetary or nonmonetary consideration. After such time periods
285 have elapsed, all warranty, maintenance, and other service
286 related payments and incentive payments shall be deemed final
287 and incontrovertible for any reason notwithstanding any
288 otherwise applicable law, and the motor vehicle dealer shall not
289 be subject to any chargeback or repayment. An applicant or
290 licensee may deny a claim or, as a result of a timely conducted
291 audit, impose a chargeback against a motor vehicle dealer for
292 warranty, maintenance, or other service-related payments or
293 incentive payments only if the applicant or licensee can show
294 that the warranty, maintenance, or other service-related claim
295 or incentive claim was false or fraudulent or that the motor
296 vehicle dealer failed to substantially comply with the
297 reasonable written and uniformly applied procedures of the
298 applicant or licensee for such repairs or incentives, but only
299 for that portion of the claim so shown. Notwithstanding the
300 terms of any franchise agreement, guideline, program, policy, or
301 procedure, an applicant or licensee may deny or charge back only
302 that portion of a warranty, maintenance, or other service
303 related claim or incentive claim which the applicant or licensee
304 has proven to be false or fraudulent or for which the dealer
305 failed to substantially comply with the reasonable written and
306 uniformly applied procedures of the applicant or licensee for
307 such repairs or incentives, as set forth in this subsection. An
308 applicant or licensee may not charge back a motor vehicle dealer
309 subsequent to the payment of a warranty, maintenance, or
310 service-related claim or incentive claim unless, within 30 days
311 after a timely conducted audit, a representative of the
312 applicant or licensee first meets in person, by telephone, or by
313 video teleconference with an officer or employee of the dealer
314 designated by the motor vehicle dealer. At such meeting the
315 applicant or licensee must provide a detailed explanation, with
316 supporting documentation, as to the basis for each of the claims
317 for which the applicant or licensee proposed a chargeback to the
318 dealer and a written statement containing the basis upon which
319 the motor vehicle dealer was selected for audit or review.
320 Thereafter, the applicant or licensee must provide the motor
321 vehicle dealer’s representative a reasonable period after the
322 meeting within which to respond to the proposed chargebacks,
323 with such period to be commensurate with the volume of claims
324 under consideration, but in no case less than 45 days after the
325 meeting. The applicant or licensee is prohibited from changing
326 or altering the basis for each of the proposed chargebacks as
327 presented to the motor vehicle dealer’s representative following
328 the conclusion of the audit unless the applicant or licensee
329 receives new information affecting the basis for one or more
330 chargebacks and that new information is received within 30 days
331 after the conclusion of the timely conducted audit. If the
332 applicant or licensee claims the existence of new information,
333 the dealer must be given the same right to a meeting and right
334 to respond as when the chargeback was originally presented.
335 After all internal dispute resolution processes provided through
336 the applicant or licensee have been completed, the applicant or
337 licensee shall give written notice to the motor vehicle dealer
338 of the final amount of its proposed chargeback. If the dealer
339 disputes that amount, the dealer may file a protest with the
340 department within 30 days after receipt of the notice. If a
341 protest is timely filed, the department shall notify the
342 applicant or licensee of the filing of the protest, and the
343 applicant or licensee may not take any action to recover the
344 amount of the proposed chargeback until the department renders a
345 final determination, which is not subject to further appeal,
346 that the chargeback is in compliance with the provisions of this
347 section. In any hearing pursuant to this subsection, the
348 applicant or licensee has the burden of proof that its audit and
349 resulting chargeback are in compliance with this subsection.
350 (26) Notwithstanding the terms of any franchise agreement,
351 including any licensee’s program, policy, or procedure, the
352 applicant or licensee has refused to allocate, sell, or deliver
353 motor vehicles; charged back or withheld payments or other
354 things of value for which the dealer is otherwise eligible under
355 a sales promotion, program, or contest; prevented a motor
356 vehicle dealer from participating in any promotion, program, or
357 contest; or has taken or threatened to take any adverse action
358 against a dealer, including chargebacks, reducing vehicle
359 allocations, or terminating or threatening to terminate a
360 franchise because the dealer sold or leased a motor vehicle to a
361 customer who exported the vehicle to a foreign country or who
362 resold the vehicle, unless the licensee proves that the dealer
363 knew or reasonably should have known that the customer intended
364 to export or resell the motor vehicle. There is a rebuttable
365 presumption that the dealer neither knew nor reasonably should
366 have known of its customer’s intent to export or resell the
367 vehicle if the vehicle is titled or registered in any state in
368 this country. A licensee may not take any action against a motor
369 vehicle dealer, including reducing its allocations or supply of
370 motor vehicles to the dealer or charging back to a dealer any
371 incentive payment previously paid, unless the licensee first
372 meets in person, by telephone, or video conference with an
373 officer or other designated employee of the dealer. At such
374 meeting, the licensee must provide a detailed explanation, with
375 supporting documentation, as to the basis for its claim that the
376 dealer knew or reasonably should have known of the customer’s
377 intent to export or resell the motor vehicle. Thereafter, the
378 motor vehicle dealer shall have a reasonable period,
379 commensurate with the number of motor vehicles at issue, but not
380 less than 15 days, to respond to the licensee’s claims. If,
381 following the dealer’s response and completion of all internal
382 dispute resolution processes provided through the applicant or
383 licensee, the dispute remains unresolved, the dealer may file a
384 protest with the department within 30 days after receipt of a
385 written notice from the licensee that it still intends to take
386 adverse action against the dealer with respect to the motor
387 vehicles still at issue. If a protest is timely filed, the
388 department shall notify the applicant or licensee of the filing
389 of the protest, and the applicant or licensee may not take any
390 action adverse to the dealer until the department renders a
391 final determination, which is not subject to further appeal,
392 that the licensee’s proposed action is in compliance with the
393 provisions of this subsection. In any hearing pursuant to this
394 subsection, the applicant or licensee has the burden of proof on
395 all issues raised by this subsection. An applicant or licensee
396 may not take any adverse action against a motor vehicle dealer
397 because the dealer sold or leased a motor vehicle to a customer
398 who exported the vehicle to a foreign country or who resold the
399 vehicle unless the applicant or licensee provides written
400 notification to the motor vehicle dealer of such resale or
401 export within 12 months after the date the dealer sold or leased
402 the vehicle to the customer.
403 (27) Notwithstanding the terms of any franchise agreement,
404 the applicant or licensee has failed or refused to indemnify and
405 hold harmless any motor vehicle dealer against any judgment for
406 damages, or settlements agreed to by the applicant or licensee,
407 including, without limitation, court costs and reasonable
408 attorney attorneys fees, arising out of complaints, claims, or
409 lawsuits, including, without limitation, strict liability,
410 negligence, misrepresentation, express or implied warranty, or
411 revocation or rescission of acceptance of the sale of a motor
412 vehicle, to the extent the judgment or settlement relates to the
413 alleged negligent manufacture, design, or assembly of motor
414 vehicles, parts, or accessories. Nothing herein shall obviate
415 the licensee’s obligations pursuant to chapter 681.
416 (28) The applicant or licensee has published, disclosed, or
417 otherwise made available in any form information provided by a
418 motor vehicle dealer with respect to sales prices of motor
419 vehicles or profit per motor vehicle sold. Other confidential
420 financial information provided by motor vehicle dealers shall
421 not be published, disclosed, or otherwise made publicly
422 available except in composite form. However, this information
423 may be disclosed with the written consent of the dealer or in
424 response to a subpoena or order of the department, a court or a
425 lawful tribunal, or introduced into evidence in such a
426 proceeding, after timely notice to an affected dealer.
427 (29) The applicant or licensee has failed to reimburse a
428 motor vehicle dealer in full for the reasonable cost of
429 providing a loaner vehicle to any customer who is having a
430 vehicle serviced at the motor vehicle dealer, if a loaner is
431 required by the applicant or licensee, or a loaner is expressly
432 part of an applicant or licensee’s customer satisfaction index
433 or computation.
434 (30) The applicant or licensee has conducted or threatened
435 to conduct any audit of a motor vehicle dealer in order to
436 coerce or attempt to coerce the dealer to forego any rights
437 granted to the dealer under ss. 320.60-320.70 or under the
438 agreement between the licensee and the motor vehicle dealer.
439 Nothing in this section shall prohibit an applicant or licensee
440 from reasonably and periodically auditing a dealer to determine
441 the validity of paid claims, as permitted under this chapter, if
442 the licensee complies with the provisions of ss. 320.60-320.70
443 applicable to such audits.
444 (31) From and after the effective date of enactment of this
445 provision, the applicant or licensee has offered to any motor
446 vehicle dealer a franchise agreement that:
447 (a) Requires that a motor vehicle dealer bring an
448 administrative or legal action in a venue outside of this state;
449 (b) Requires that any arbitration, mediation, or other
450 legal proceeding be conducted outside of this state; or
451 (c) Requires that a law of a state other than Florida be
452 applied to any legal proceeding between a motor vehicle dealer
453 and a licensee.
454 (32) Notwithstanding the terms of any franchise agreement,
455 the applicant or licensee has rejected or withheld approval of
456 any proposed transfer in violation of s. 320.643 or a proposed
457 change of executive management in violation of s. 320.644.
458 (33) The applicant or licensee has attempted to sell or
459 lease, or has sold or leased, used motor vehicles at retail of a
460 line-make that is the subject of any franchise agreement with a
461 motor vehicle dealer in this state, other than trucks with a net
462 weight of more than 8,000 pounds.
463 (34) The applicant or licensee, after the effective date of
464 this subsection, has included in any franchise agreement with a
465 motor vehicle dealer a mandatory obligation or requirement of
466 the motor vehicle dealer to purchase, sell, or lease, or offer
467 for purchase, sale, or lease, any quantity of used motor
468 vehicles.
469 (35) The applicant or licensee has refused to assign
470 allocation earned by a motor vehicle dealer, or has refused to
471 sell motor vehicles to a motor vehicle dealer, because the motor
472 vehicle dealer has failed or refused to purchase, sell, lease,
473 or certify a certain quantity of used motor vehicles prescribed
474 by the licensee.
475 (36)(a) Notwithstanding the terms of any franchise
476 agreement, in addition to any other statutory or contractual
477 rights of recovery after the voluntary or involuntary
478 termination, cancellation, or nonrenewal of a franchise, failing
479 to pay the motor vehicle dealer, as provided in paragraph (d),
480 the following amounts:
481 1. The net cost paid by the dealer for each new car or
482 truck in the dealer’s inventory with mileage of 2,000 miles or
483 less, or a motorcycle with mileage of 100 miles or less,
484 exclusive of mileage placed on the vehicle before it was
485 delivered to the dealer.
486 2. The current price charged for each new, unused,
487 undamaged, or unsold part or accessory that:
488 a. Is in the current parts catalogue and is still in the
489 original, resalable merchandising package and in an unbroken
490 lot, except that sheet metal may be in a comparable substitute
491 for the original package; and
492 b. Was purchased by the dealer directly from the
493 manufacturer or distributor or from an outgoing authorized
494 dealer as a part of the dealer’s initial inventory.
495 3. The fair market value of each undamaged sign owned by
496 the dealer which bears a trademark or trade name used or claimed
497 by the applicant or licensee or its representative which was
498 purchased from or at the request of the applicant or licensee or
499 its representative.
500 4. The fair market value of all special tools, data
501 processing equipment, and automotive service equipment owned by
502 the dealer which:
503 a. Were recommended in writing by the applicant or licensee
504 or its representative and designated as special tools and
505 equipment;
506 b. Were purchased from or at the request of the applicant
507 or licensee or its representative; and
508 c. Are in usable and good condition except for reasonable
509 wear and tear.
510 5. The cost of transporting, handling, packing, storing,
511 and loading any property subject to repurchase under this
512 section.
513 (b) If the termination, cancellation, or nonrenewal of the
514 dealer’s franchise is the result of the bankruptcy or
515 reorganization of a licensee or its common entity, or the result
516 of a licensee’s plan, scheme, or policy, whether or not publicly
517 declared, which is intended to or has the effect of decreasing
518 the number of, or eliminating, the licensee’s franchised motor
519 vehicle dealers of a line-make in this state, or the result of a
520 termination, elimination, or cessation of manufacture or
521 reorganization of a licensee or its common entity, or the result
522 of a termination, elimination, or cessation of manufacture or
523 distribution of a line-make, in addition to the above payments
524 to the dealer, the licensee or its common entity, shall be
525 liable to and shall pay the motor vehicle dealer for an amount
526 at least equal to the fair market value of the franchise for the
527 line-make, which shall be the greater of the value determined as
528 of the day the licensee announces the action that results in the
529 termination, cancellation, or nonrenewal, or the value
530 determined on the day that is 12 months before that date. Fair
531 market value of the franchise for the line-make includes only
532 the goodwill value of the dealer’s franchise for that line-make
533 in the dealer’s community or territory.
534 (c) This subsection does not apply to a termination,
535 cancellation, or nonrenewal that is implemented as a result of
536 the sale of the assets or corporate stock or other ownership
537 interests of the dealer.
538 (d) The dealer shall return the property listed in this
539 subsection to the licensee within 90 days after the effective
540 date of the termination, cancellation, or nonrenewal. The
541 licensee shall supply the dealer with reasonable instructions
542 regarding the method by which the dealer must return the
543 property. Absent shipping instructions and prepayment of
544 shipping costs from the licensee or its common entity, the
545 dealer shall tender the inventory and other items to be returned
546 at the dealer’s facility. The compensation for the property
547 shall be paid by the licensee or its common entity
548 simultaneously with the tender of inventory and other items,
549 provided that, if the dealer does not have clear title to the
550 inventory and other items and is not in a position to convey
551 that title to the licensee, payment for the property being
552 returned may be made jointly to the dealer and the holder of any
553 security interest.
554 (37) Notwithstanding the terms of any franchise agreement,
555 the applicant or licensee has refused to allow or has limited or
556 restricted a motor vehicle dealer from acquiring or adding a
557 sales or service operation for another line-make of motor
558 vehicles at the same or expanded facility at which the motor
559 vehicle dealer currently operates a dealership unless the
560 applicant or licensee can demonstrate that such refusal,
561 limitation, or restriction is justified by consideration of
562 reasonable facility and financial requirements and the dealer’s
563 performance for the existing line-make.
564 (38) The applicant or licensee has failed or refused to
565 offer a bonus, incentive, or other benefit program, in whole or
566 in part, to a dealer or dealers in this state which it offers to
567 all of its other same line-make dealers nationally or to all of
568 its other same line-make dealers in the licensee’s designated
569 zone, region, or other licensee-designated area of which this
570 state is a part, unless the failure or refusal to offer the
571 program in this state is reasonably supported by substantially
572 different economic or marketing considerations than are
573 applicable to the licensee’s same line-make dealers in this
574 state. For purposes of this chapter, a licensee may not
575 establish this state alone as a designated zone, region, or area
576 or any other designation for a specified territory. A licensee
577 may offer a bonus, rebate, incentive, or other benefit program
578 to its dealers in this state which is calculated or paid on a
579 per vehicle basis and is related in part to a dealer’s facility
580 or the expansion, improvement, remodeling, alteration, or
581 renovation of a dealer’s facility. Any dealer who does not
582 comply with the facility criteria or eligibility requirements of
583 such program is entitled to receive a reasonable percentage of
584 the bonus, incentive, rebate, or other benefit offered by the
585 licensee under that program by complying with the criteria or
586 eligibility requirements unrelated to the dealer’s facility
587 under that program. For purposes of the previous sentence, the
588 percentage unrelated to the facility criteria or requirements is
589 presumed to be “reasonable” if it is not less than 80 percent of
590 the total of the per vehicle bonus, incentive, rebate, or other
591 benefits offered under the program.
592 (39) Notwithstanding any agreement, program, incentive,
593 bonus, policy, or rule, an applicant or licensee may not fail to
594 make any payment pursuant to any agreement, program, incentive,
595 bonus, policy, or rule for any temporary replacement motor
596 vehicle loaned, rented, or provided by a motor vehicle dealer to
597 or for its service or repair customers, even if the temporary
598 replacement motor vehicle has been leased, rented, titled, or
599 registered to the motor vehicle dealer’s rental or leasing
600 division or an entity that is owned or controlled by the motor
601 vehicle dealer, provided that the motor vehicle dealer or its
602 rental or leasing division or entity complies with the written
603 and uniformly enforced vehicle eligibility, use, and reporting
604 requirements specified by the applicant or licensee in its
605 agreement, program, policy, bonus, incentive, or rule relating
606 to loaner vehicles.
607 (40) Notwithstanding the terms of any franchise agreement,
608 the applicant or licensee may not require or coerce, or attempt
609 to require or coerce, a motor vehicle dealer to purchase goods
610 or services from a vendor selected, identified, or designated by
611 the applicant or licensee, or one of its parents, subsidiaries,
612 divisions, or affiliates, by agreement, standard, policy,
613 program, incentive provision, or otherwise, without making
614 available to the motor vehicle dealer the option to obtain the
615 goods or services of substantially similar design and quality
616 from a vendor chosen by the motor vehicle dealer. If the motor
617 vehicle dealer exercises such option, the dealer must provide
618 written notice of its desire to use the alternative goods or
619 services to the applicant or licensee, along with samples or
620 clear descriptions of the alternative goods or services that the
621 dealer desires to use. The licensee or applicant shall have the
622 opportunity to evaluate the alternative goods or services for up
623 to 30 days to determine whether it will provide a written
624 approval to the motor vehicle dealer to use said alternative
625 goods or services. Approval may not be unreasonably withheld by
626 the applicant or licensee. If the motor vehicle dealer does not
627 receive a response from the applicant or licensee within 30
628 days, approval to use the alternative goods or services is
629 deemed granted. If a dealer using alternative goods or services
630 complies with this subsection and has received approval from the
631 licensee or applicant, the dealer is not ineligible for all
632 benefits described in the agreement, standard, policy, program,
633 incentive provision, or otherwise solely for having used such
634 alternative goods or services. As used in this subsection, the
635 term “goods or services” is limited to such goods and services
636 used to construct or renovate dealership facilities or furniture
637 and fixtures at the dealership facilities. The term does not
638 include:
639 (a) Any materials subject to the applicant’s or licensee’s
640 intellectual property rights, including copyright, trademark, or
641 trade dress rights;
642 (b) Any special tool and training as required by the
643 applicant or licensee;
644 (c) Any part to be used in repairs under warranty
645 obligations of an applicant or licensee;
646 (d) Any good or service paid for entirely by the applicant
647 or licensee; or
648 (e) Any applicant’s or licensee’s design or architectural
649 review service.
650 (41)(a) The applicant or licensee has established,
651 implemented, or enforced criteria for measuring the sales or
652 service performance of any of its franchised motor vehicle
653 dealers in this state which have a material or adverse effect on
654 any motor vehicle dealer and which:
655 1. Are unfair, unreasonable, arbitrary, or inequitable; or
656 2. Do not include all relevant and material local and
657 regional criteria, data, and facts. Relevant and material
658 criteria, data, or facts include, but are not limited to, those
659 of motor vehicle dealerships of comparable size in comparable
660 markets. If such performance measurement criteria are based, in
661 whole or in part, on a survey, such survey must be based on a
662 statistically significant and valid random sample.
663 (b) An applicant, licensee, or common entity, or an
664 affiliate thereof, which enforces against any motor vehicle
665 dealer any such performance measurement criteria shall, upon the
666 request of the motor vehicle dealer, describe in writing to the
667 motor vehicle dealer, in detail, how the performance measurement
668 criteria were designed, calculated, established, and uniformly
669 applied.
670
671 A motor vehicle dealer who can demonstrate that a violation of,
672 or failure to comply with, any of the preceding provisions by an
673 applicant or licensee will or may can adversely and pecuniarily
674 affect the complaining dealer, shall be entitled to pursue all
675 of the remedies, procedures, and rights of recovery available
676 under ss. 320.695 and 320.697.
677 Section 2. For the purpose of incorporating the amendment
678 made by this act to section 320.64, Florida Statutes, in
679 references thereto, section 320.6992, Florida Statutes, is
680 reenacted to read:
681 320.6992 Application.—Sections 320.60-320.70, including
682 amendments to ss. 320.60-320.70, apply to all presently existing
683 or hereafter established systems of distribution of motor
684 vehicles in this state, except to the extent that such
685 application would impair valid contractual agreements in
686 violation of the State Constitution or Federal Constitution.
687 Sections 320.60-320.70 do not apply to any judicial or
688 administrative proceeding pending as of October 1, 1988. All
689 agreements renewed, amended, or entered into subsequent to
690 October 1, 1988, shall be governed by ss. 320.60-320.70,
691 including any amendments to ss. 320.60-320.70 which have been or
692 may be from time to time adopted, unless the amendment
693 specifically provides otherwise, and except to the extent that
694 such application would impair valid contractual agreements in
695 violation of the State Constitution or Federal Constitution.
696 Section 3. Sections 320.60, 320.605, 320.61, 320.615,
697 320.62, 320.63, 320.6403, 320.6405, 320.641, 320.6412, 320.6415,
698 320.642, 320.643, 320.644, 320.645, 320.646, 320.664, 320.67,
699 320.68, 320.69, 320.695, 320.696, 320.697, 320.6975, 320.698,
700 320.699, 320.69915, and 320.70, Florida Statutes, are reenacted
701 for the purpose of incorporating the amendment made by this act
702 to s. 320.64, Florida Statutes.
703 Section 4. This act shall take effect upon becoming a law.
704
705 ================= T I T L E A M E N D M E N T ================
706 And the title is amended as follows:
707 Delete everything before the enacting clause
708 and insert:
709 A bill to be entitled
710 An act relating to motor vehicle applicants,
711 licensees, and dealers; amending s. 320.64, F.S.;
712 providing that a motor vehicle dealer who constructs
713 or alters sales or service facilities in reliance upon
714 a program or incentive offered by an applicant or
715 licensee is deemed to be in compliance with certain
716 requirements for a specified period; specifying
717 eligibility for benefits under a revised or new
718 program, standard, policy, bonus, incentive, rebate,
719 or other benefit; providing construction; authorizing
720 denial, suspension, or revocation of the license of an
721 applicant or licensee who establishes certain
722 performance measurement criteria that have a material
723 or adverse effect on motor vehicle dealers; requiring
724 an applicant, licensee, or common entity, or an
725 affiliate thereof, under certain circumstances and
726 upon the request of the motor vehicle dealer, to
727 describe in writing to the motor vehicle dealer how
728 certain performance measurement criteria were
729 designed, calculated, established, and uniformly
730 applied; reenacting s. 320.6992, F.S., relating to
731 provisions that apply to all systems of distribution
732 of motor vehicles in this state, to incorporate the
733 amendment made to s. 320.64, F.S., in references
734 thereto; reenacting ss. 320.60, 320.605, 320.61,
735 320.615, 320.62, 320.63, 320.6403, 320.6405, 320.641,
736 320.6412, 320.6415, 320.642, 320.643, 320.644,
737 320.645, 320.646, 320.664, 320.67, 320.68, 320.69,
738 320.695, 320.696, 320.697, 320.6975, 320.698, 320.699,
739 320.69915, and 320.70, F.S., to incorporate the
740 amendment made to s. 320.64, F.S.; providing an
741 effective date.