Florida Senate - 2017 SB 1678
By Senator Garcia
36-00976C-17 20171678__
1 A bill to be entitled
2 An act relating to motor vehicle dealers; amending s.
3 320.64, F.S.; providing an exception to the
4 requirement that a specified provision does not affect
5 certain contracts between a licensee and any of its
6 dealers; providing that a motor vehicle dealer who
7 completes certain approved construction or changes to
8 or installation on the dealer’s facility in reliance
9 upon a certain program, standard, or policy, or bonus,
10 incentive, rebate, or other benefit is deemed to be in
11 full compliance with all of an applicant’s or
12 licensee’s requirements related to the facility, sign,
13 and image for a specified period; providing that a
14 motor vehicle dealer that completed a facility in
15 reliance upon a prior program, standard, or policy,
16 bonus, incentive, rebate or other benefit, but elects
17 not to comply with the provisions related to facility,
18 sign, or image under a changed or new program,
19 standard, policy, or other offer is not eligible for
20 the new benefits but shall remain entitled to all
21 prior benefits plus any increase in the benefits
22 between the prior and the new or amended program,
23 standard, policy, or offers for the remainder of the
24 specified period; providing for construction;
25 prohibiting the applicant or licensee from failing to
26 act in good faith toward or deal fairly with one of
27 its franchised motor vehicle dealers in an agreement;
28 specifying when an applicant or licensee may have
29 failed to act in good faith or deal fairly with a
30 motor vehicle dealer; requiring the Department of
31 Highway Safety and Motor Vehicles or a court to
32 consider, in certain actions, specified factors in
33 determining whether an applicant or licensee has
34 failed to act in good faith toward, or deal fairly
35 with, a motor vehicle dealer under certain
36 circumstances; providing that an affirmative
37 determination to one or more of such factors is
38 sufficient to sustain a finding of failure to act in
39 good faith or deal fairly with a motor vehicle dealer;
40 prohibiting an applicant or licensee from
41 establishing, implementing, or enforcing criteria for
42 measuring the sales or service performance of any of
43 its franchised motor vehicle dealers in this state
44 under certain circumstances; providing that relevant
45 and material national or state criteria or data may be
46 considered; prohibiting comparison to such data to
47 outweigh applicable local and regional factors and
48 data; defining the term “relevant and material”;
49 requiring a survey to be based upon a statistically
50 significant and valid random sample if certain
51 measurement is based, in whole or in part, upon such
52 survey; requiring an applicant, licensee, common
53 entity, or affiliate thereof that seeks to establish,
54 implement, or enforce against any dealer a performance
55 measurement to describe in writing to the motor
56 vehicle dealer, upon the dealer’s request, how the
57 measurement criteria about the dealer’s sales and
58 service performance was designed, calculated,
59 established, and applied; providing that any dealer
60 against whom any such performance measurement criteria
61 is sought to be used for any purpose adverse to the
62 dealer has the right to file a complaint in court
63 alleging that such performance criteria does not
64 comply with specified provisions; providing for
65 damages, attorney fees, and injunctive relief under
66 certain circumstances; requiring the applicant or
67 licensee to bear the ultimate burden of proof that the
68 dealer performance measurement criteria complies with
69 specified provisions and has been implemented and
70 enforced uniformly by the applicant or licensee among
71 its dealers in this state; adding certain remedies,
72 procedures, and rights of recovery a motor vehicle
73 dealer is entitled to pursue under certain
74 circumstances; creating s. 320.648, F.S.; prohibiting
75 an applicant or licensee from taking specified actions
76 for the purpose of avoiding competitive disadvantages
77 of a motor vehicle dealer and eliminating
78 discrimination against a motor vehicle dealer under
79 certain circumstances; providing applicability;
80 providing for construction; amending s. 320.699, F.S.;
81 authorizing a motor vehicle dealer or certain persons
82 to seek a declaration and adjudication of rights under
83 certain circumstances with respect to certain actions
84 of an applicant or licensee by filing a complaint in
85 court for injunctive relief and damages; requiring,
86 after a certain prima facie showing, the burden of
87 proof of all issues to be upon the applicant or
88 licensee to prove that a certain violation did not or
89 will not occur; authorizing a court to issue
90 injunctive relief and award costs and reasonable
91 attorney fees to the complainant if relief is granted;
92 providing an effective date.
93
94 Be It Enacted by the Legislature of the State of Florida:
95
96 Section 1. Section 320.64, Florida Statutes, is amended to
97 read:
98 320.64 Denial, suspension, or revocation of license;
99 grounds.—A license of a licensee under s. 320.61 may be denied,
100 suspended, or revoked within the entire state or at any specific
101 location or locations within the state at which the applicant or
102 licensee engages or proposes to engage in business, upon proof
103 that the section was violated with sufficient frequency to
104 establish a pattern of wrongdoing, and a licensee or applicant
105 shall be liable for claims and remedies provided in ss. 320.695
106 and 320.697 for any violation of any of the following
107 provisions. A licensee is prohibited from committing the
108 following acts:
109 (1) The applicant or licensee is determined to be unable to
110 carry out contractual obligations with its motor vehicle
111 dealers.
112 (2) The applicant or licensee has knowingly made a material
113 misstatement in its application for a license.
114 (3) The applicant or licensee willfully has failed to
115 comply with significant provisions of ss. 320.60-320.70 or with
116 any lawful rule or regulation adopted or promulgated by the
117 department.
118 (4) The applicant or licensee has indulged in any illegal
119 act relating to his or her business.
120 (5) The applicant or licensee has coerced or attempted to
121 coerce any motor vehicle dealer into accepting delivery of any
122 motor vehicle or vehicles or parts or accessories therefor or
123 any other commodities which have not been ordered by the dealer.
124 (6) The applicant or licensee has coerced or attempted to
125 coerce any motor vehicle dealer to enter into any agreement with
126 the licensee.
127 (7) The applicant or licensee has threatened to
128 discontinue, cancel, or not to renew a franchise agreement of a
129 licensed motor vehicle dealer, where the threatened
130 discontinuation, cancellation, or nonrenewal, if implemented,
131 would be in violation of any of the provisions of s. 320.641.
132 (8) The applicant or licensee discontinued, canceled, or
133 failed to renew, a franchise agreement of a licensed motor
134 vehicle dealer in violation of any of the provisions of s.
135 320.641.
136 (9) The applicant or licensee has threatened to modify or
137 replace, or has modified or replaced, a franchise agreement with
138 a succeeding franchise agreement which would adversely alter the
139 rights or obligations of a motor vehicle dealer under an
140 existing franchise agreement or which substantially impairs the
141 sales, service obligations, or investment of the motor vehicle
142 dealer.
143 (10)(a) The applicant or licensee has attempted to enter,
144 or has entered, into a franchise agreement with a motor vehicle
145 dealer who does not, at the time of the franchise agreement,
146 have proper facilities to provide the services to his or her
147 purchasers of new motor vehicles which are covered by the new
148 motor vehicle warranty issued by the applicant or licensee.
149 (b) Notwithstanding any provision of a franchise, a
150 licensee may not require a motor vehicle dealer, by agreement,
151 program, policy, standard, or otherwise, to make substantial
152 changes, alterations, or remodeling to, or to replace a motor
153 vehicle dealer’s sales or service facilities unless the
154 licensee’s requirements are reasonable and justifiable in light
155 of the current and reasonably foreseeable projections of
156 economic conditions, financial expectations, and the motor
157 vehicle dealer’s market for the licensee’s motor vehicles.
158 (c) A licensee may, however, consistent with the licensee’s
159 allocation obligations at law and to its other same line-make
160 motor vehicle dealers, provide to a motor vehicle dealer a
161 commitment to supply additional vehicles or provide a loan or
162 grant of money as an inducement for the motor vehicle dealer to
163 expand, improve, remodel, alter, or renovate its facilities if
164 the provisions of the commitment are contained in a writing
165 voluntarily agreed to by the dealer and are made available, on
166 substantially similar terms, to any of the licensee’s other same
167 line-make dealers in this state who voluntarily agree to make a
168 substantially similar facility expansion, improvement,
169 remodeling, alteration, or renovation.
170 (d) Except as provided in paragraph (c), subsection (36),
171 or as otherwise provided by law, this subsection does not
172 require a licensee to provide financial support for, or
173 contribution to, the purchase or sale of the assets of or equity
174 in a motor vehicle dealer or a relocation of a motor vehicle
175 dealer because such support has been provided to other
176 purchases, sales, or relocations.
177 (e) A licensee or its common entity may not take or
178 threaten to take any action that is unfair or adverse to a
179 dealer who does not enter into an agreement with the licensee
180 pursuant to paragraph (c).
181 (f) Except as provided in s. 320.6992, this subsection does
182 not affect any contract between a licensee and any of its
183 dealers regarding relocation, expansion, improvement,
184 remodeling, renovation, or alteration which exists on the
185 effective date of this act.
186 (g) A licensee may set and uniformly apply reasonable
187 standards for a motor vehicle dealer’s sales and service
188 facilities which are related to upkeep, repair, and cleanliness.
189 (h) A violation of paragraphs (b) through (g) is not a
190 violation of s. 320.70 and does not subject any licensee to any
191 criminal penalty under s. 320.70.
192 (i) If an applicant or licensee establishes a program,
193 standard, or policy or in any manner offers a bonus, incentive,
194 rebate, or other benefit to a motor vehicle dealer in this state
195 which is premised, wholly or in part, on dealer facility
196 construction, improvements, renovations, expansions, remodeling,
197 or alterations or installation of signs or other image elements,
198 a motor vehicle dealer who completes any such approved
199 construction or change to or installation on the dealer’s
200 facility in reliance upon such program, standard, or policy, or
201 bonus, incentive, rebate, or other benefit is deemed to be in
202 full compliance with all of the applicant’s or licensee’s
203 requirements related to the facility, sign, and image for a
204 period of 10 years following such completion. If, during the 10
205 year period, the applicant or licensee changes or offers a new
206 program, standard, or policy, or bonus, incentive, rebate, or
207 other benefit related to relocation or remodeling, improvements,
208 alterations, renovations, or replacement of the existing
209 completed sales or service facilities, a motor vehicle dealer
210 that completed a facility in reliance upon a prior program,
211 standard, or policy, bonus, incentive, rebate, or other benefit,
212 but elects not to comply with the provisions related to
213 facility, sign, or image under the changed or new program,
214 standard, policy, or other offer is not eligible for the new
215 benefits but shall remain entitled to all prior benefits plus
216 any increase in the benefits between the prior and the new or
217 amended program, standard, policy, or offers for the remainder
218 of the 10-year period. This paragraph does not obviate, affect,
219 or alter any provision of subsection (38).
220 (11) The applicant or licensee has coerced a motor vehicle
221 dealer to provide installment financing for the motor vehicle
222 dealer’s purchasers with a specified financial institution.
223 (12) The applicant or licensee has advertised, printed,
224 displayed, published, distributed, broadcast, or televised, or
225 caused or permitted to be advertised, printed, displayed,
226 published, distributed, broadcast, or televised, in any manner
227 whatsoever, any statement or representation with regard to the
228 sale or financing of motor vehicles which is false, deceptive,
229 or misleading.
230 (13) The applicant or licensee has sold, exchanged, or
231 rented a motorcycle that which produces in excess of 5 brake
232 horsepower, knowing the use thereof to be by, or intended for,
233 the holder of a restricted Florida driver license.
234 (14) The applicant or licensee has engaged in previous
235 conduct that which would have been a ground for revocation or
236 suspension of a license if the applicant or licensee had been
237 licensed.
238 (15) The applicant or licensee, directly or indirectly,
239 through the actions of any parent of the licensee, subsidiary of
240 the licensee, or common entity causes a termination,
241 cancellation, or nonrenewal of a franchise agreement by a
242 present or previous distributor or importer unless, by the
243 effective date of such action, the applicant or licensee offers
244 the motor vehicle dealer whose franchise agreement is
245 terminated, canceled, or not renewed a franchise agreement
246 containing substantially the same provisions contained in the
247 previous franchise agreement or files an affidavit with the
248 department acknowledging its undertaking to assume and fulfill
249 the rights, duties, and obligations of its predecessor
250 distributor or importer under the terminated, canceled, or
251 nonrenewed franchise agreement and the same is reinstated.
252 (16) Notwithstanding the terms of any franchise agreement,
253 the applicant or licensee prevents or refuses to accept the
254 succession to any interest in a franchise agreement by any legal
255 heir or devisee under the will of a motor vehicle dealer or
256 under the laws of descent and distribution of this state;
257 provided, the applicant or licensee is not required to accept a
258 succession where such heir or devisee does not meet licensee’s
259 written, reasonable, and uniformly applied minimal standard
260 qualifications for dealer applicants or which, after notice and
261 administrative hearing pursuant to chapter 120, is demonstrated
262 to be detrimental to the public interest or to the
263 representation of the applicant or licensee. Nothing contained
264 herein, however, shall prevent a motor vehicle dealer, during
265 his or her lifetime, from designating any person as his or her
266 successor in interest by written instrument filed with and
267 accepted by the applicant or licensee. A licensee who rejects
268 the successor transferee under this subsection shall have the
269 burden of establishing in any proceeding where such rejection is
270 in issue that the rejection of the successor transferee complies
271 with this subsection.
272 (17) The applicant or licensee has included in any
273 franchise agreement with a motor vehicle dealer terms or
274 provisions that are contrary to, prohibited by, or otherwise
275 inconsistent with the provisions contained in ss. 320.60-320.70,
276 or has failed to include in such franchise agreement a provision
277 conforming to the requirements of s. 320.63(3).
278 (18) The applicant or licensee has established a system of
279 motor vehicle allocation or distribution or has implemented a
280 system of allocation or distribution of motor vehicles to one or
281 more of its franchised motor vehicle dealers which reduces or
282 alters allocations or supplies of new motor vehicles to the
283 dealer to achieve, directly or indirectly, a purpose that is
284 prohibited by ss. 320.60-320.70, or which otherwise is unfair,
285 inequitable, unreasonably discriminatory, or not supportable by
286 reason and good cause after considering the equities of the
287 affected motor vehicles dealer or dealers. An applicant or
288 licensee shall maintain for 3 years records that describe its
289 methods or formula of allocation and distribution of its motor
290 vehicles and records of its actual allocation and distribution
291 of motor vehicles to its motor vehicle dealers in this state. As
292 used in this subsection, “unfair” includes, without limitation,
293 the refusal or failure to offer to any dealer an equitable
294 supply of new vehicles under its franchise, by model, mix, or
295 colors as the licensee offers or allocates to its other same
296 line-make dealers in the state.
297 (19) The applicant or licensee, without good and fair
298 cause, has delayed, refused, or failed to provide a supply of
299 motor vehicles by series in reasonable quantities, including the
300 models publicly advertised by the applicant or licensee as being
301 available, or has delayed, refused, or failed to deliver motor
302 vehicle parts and accessories within a reasonable time after
303 receipt of an order by a franchised dealer. However, this
304 subsection is not violated if such failure is caused by acts or
305 causes beyond the control of the applicant or licensee.
306 (20) The applicant or licensee has required, or threatened
307 to require, a motor vehicle dealer to prospectively assent to a
308 release, assignment, novation, waiver, or estoppel, which
309 instrument or document operates, or is intended by the applicant
310 or licensee to operate, to relieve any person from any liability
311 or obligation under the provisions of ss. 320.60-320.70.
312 (21) The applicant or licensee has threatened or coerced a
313 motor vehicle dealer toward conduct or action whereby the dealer
314 would waive or forego its right to protest the establishment or
315 relocation of a motor vehicle dealer in the community or
316 territory serviced by the threatened or coerced dealer.
317 (22) The applicant or licensee has refused to deliver, in
318 reasonable quantities and within a reasonable time, to any duly
319 licensed motor vehicle dealer who has an agreement with such
320 applicant or licensee for the retail sale of new motor vehicles
321 and parts for motor vehicles sold or distributed by the
322 applicant or licensee, any such motor vehicles or parts as are
323 covered by such agreement. Such refusal includes the failure to
324 offer to its same line-make franchised motor vehicle dealers all
325 models manufactured for that line-make, or requiring a dealer to
326 pay any extra fee, require a dealer to execute a separate
327 franchise agreement, purchase unreasonable advertising displays
328 or other materials, or relocate, expand, improve, remodel,
329 renovate, recondition, or alter the dealer’s existing
330 facilities, or provide exclusive facilities as a prerequisite to
331 receiving a model or series of vehicles. However, the failure to
332 deliver any motor vehicle or part will not be considered a
333 violation of this section if the failure is due to an act of
334 God, work stoppage, or delay due to a strike or labor
335 difficulty, a freight embargo, product shortage, or other cause
336 over which the applicant or licensee has no control. An
337 applicant or licensee may impose reasonable requirements on the
338 motor vehicle dealer, other than the items listed above,
339 including, but not limited to, the purchase of special tools
340 required to properly service a motor vehicle and the undertaking
341 of sales person or service person training related to the motor
342 vehicle.
343 (23) The applicant or licensee has competed or is competing
344 with respect to any activity covered by the franchise agreement
345 with a motor vehicle dealer of the same line-make located in
346 this state with whom the applicant or licensee has entered into
347 a franchise agreement, except as permitted in s. 320.645.
348 (24) The applicant or licensee has sold a motor vehicle to
349 any retail consumer in the state except through a motor vehicle
350 dealer holding a franchise agreement for the line-make that
351 includes the motor vehicle. This section does not apply to sales
352 by the applicant or licensee of motor vehicles to its current
353 employees, employees of companies affiliated by common
354 ownership, charitable not-for-profit-organizations, and the
355 federal government.
356 (25) The applicant or licensee has undertaken or engaged in
357 an audit of warranty, maintenance, and other service-related
358 payments or incentive payments, including payments to a motor
359 vehicle dealer under any licensee-issued program, policy, or
360 other benefit, which were previously paid to a motor vehicle
361 dealer in violation of this section or has failed to comply with
362 any of its obligations under s. 320.696. An applicant or
363 licensee may reasonably and periodically audit a motor vehicle
364 dealer to determine the validity of paid claims as provided in
365 s. 320.696. Audits of warranty, maintenance, and other service
366 related payments shall be performed by an applicant or licensee
367 only during the 12-month period immediately following the date
368 the claim was paid. Audits of incentive payments shall be
369 performed only during the 12-month period immediately following
370 the date the incentive was paid. As used in this section, the
371 term “incentive” includes any bonus, incentive, or other
372 monetary or nonmonetary consideration. After such time periods
373 have elapsed, all warranty, maintenance, and other service
374 related payments and incentive payments shall be deemed final
375 and incontrovertible for any reason notwithstanding any
376 otherwise applicable law, and the motor vehicle dealer shall not
377 be subject to any chargeback or repayment. An applicant or
378 licensee may deny a claim or, as a result of a timely conducted
379 audit, impose a chargeback against a motor vehicle dealer for
380 warranty, maintenance, or other service-related payments or
381 incentive payments only if the applicant or licensee can show
382 that the warranty, maintenance, or other service-related claim
383 or incentive claim was false or fraudulent or that the motor
384 vehicle dealer failed to substantially comply with the
385 reasonable written and uniformly applied procedures of the
386 applicant or licensee for such repairs or incentives, but only
387 for that portion of the claim so shown. Notwithstanding the
388 terms of any franchise agreement, guideline, program, policy, or
389 procedure, an applicant or licensee may deny or charge back only
390 that portion of a warranty, maintenance, or other service
391 related claim or incentive claim which the applicant or licensee
392 has proven to be false or fraudulent or for which the dealer
393 failed to substantially comply with the reasonable written and
394 uniformly applied procedures of the applicant or licensee for
395 such repairs or incentives, as set forth in this subsection. An
396 applicant or licensee may not charge back a motor vehicle dealer
397 subsequent to the payment of a warranty, maintenance, or
398 service-related claim or incentive claim unless, within 30 days
399 after a timely conducted audit, a representative of the
400 applicant or licensee first meets in person, by telephone, or by
401 video teleconference with an officer or employee of the dealer
402 designated by the motor vehicle dealer. At such meeting the
403 applicant or licensee must provide a detailed explanation, with
404 supporting documentation, as to the basis for each of the claims
405 for which the applicant or licensee proposed a chargeback to the
406 dealer and a written statement containing the basis upon which
407 the motor vehicle dealer was selected for audit or review.
408 Thereafter, the applicant or licensee must provide the motor
409 vehicle dealer’s representative a reasonable period after the
410 meeting within which to respond to the proposed chargebacks,
411 with such period to be commensurate with the volume of claims
412 under consideration, but in no case less than 45 days after the
413 meeting. The applicant or licensee is prohibited from changing
414 or altering the basis for each of the proposed chargebacks as
415 presented to the motor vehicle dealer’s representative following
416 the conclusion of the audit unless the applicant or licensee
417 receives new information affecting the basis for one or more
418 chargebacks and that new information is received within 30 days
419 after the conclusion of the timely conducted audit. If the
420 applicant or licensee claims the existence of new information,
421 the dealer must be given the same right to a meeting and right
422 to respond as when the chargeback was originally presented.
423 After all internal dispute resolution processes provided through
424 the applicant or licensee have been completed, the applicant or
425 licensee shall give written notice to the motor vehicle dealer
426 of the final amount of its proposed chargeback. If the dealer
427 disputes that amount, the dealer may file a protest with the
428 department within 30 days after receipt of the notice. If a
429 protest is timely filed, the department shall notify the
430 applicant or licensee of the filing of the protest, and the
431 applicant or licensee may not take any action to recover the
432 amount of the proposed chargeback until the department renders a
433 final determination, which is not subject to further appeal,
434 that the chargeback is in compliance with the provisions of this
435 section. In any hearing pursuant to this subsection, the
436 applicant or licensee has the burden of proof that its audit and
437 resulting chargeback are in compliance with this subsection.
438 (26) Notwithstanding the terms of any franchise agreement,
439 including any licensee’s program, policy, or procedure, the
440 applicant or licensee has refused to allocate, sell, or deliver
441 motor vehicles; charged back or withheld payments or other
442 things of value for which the dealer is otherwise eligible under
443 a sales promotion, program, or contest; prevented a motor
444 vehicle dealer from participating in any promotion, program, or
445 contest; or has taken or threatened to take any adverse action
446 against a dealer, including chargebacks, reducing vehicle
447 allocations, or terminating or threatening to terminate a
448 franchise because the dealer sold or leased a motor vehicle to a
449 customer who exported the vehicle to a foreign country or who
450 resold the vehicle, unless the licensee proves that the dealer
451 knew or reasonably should have known that the customer intended
452 to export or resell the motor vehicle. There is a rebuttable
453 presumption that the dealer neither knew nor reasonably should
454 have known of its customer’s intent to export or resell the
455 vehicle if the vehicle is titled or registered in any state in
456 this country. A licensee may not take any action against a motor
457 vehicle dealer, including reducing its allocations or supply of
458 motor vehicles to the dealer or charging back to a dealer any
459 incentive payment previously paid, unless the licensee first
460 meets in person, by telephone, or video conference with an
461 officer or other designated employee of the dealer. At such
462 meeting, the licensee must provide a detailed explanation, with
463 supporting documentation, as to the basis for its claim that the
464 dealer knew or reasonably should have known of the customer’s
465 intent to export or resell the motor vehicle. Thereafter, the
466 motor vehicle dealer shall have a reasonable period,
467 commensurate with the number of motor vehicles at issue, but not
468 less than 15 days, to respond to the licensee’s claims. If,
469 following the dealer’s response and completion of all internal
470 dispute resolution processes provided through the applicant or
471 licensee, the dispute remains unresolved, the dealer may file a
472 protest with the department within 30 days after receipt of a
473 written notice from the licensee that it still intends to take
474 adverse action against the dealer with respect to the motor
475 vehicles still at issue. If a protest is timely filed, the
476 department shall notify the applicant or licensee of the filing
477 of the protest, and the applicant or licensee may not take any
478 action adverse to the dealer until the department renders a
479 final determination, which is not subject to further appeal,
480 that the licensee’s proposed action is in compliance with the
481 provisions of this subsection. In any hearing pursuant to this
482 subsection, the applicant or licensee has the burden of proof on
483 all issues raised by this subsection. An applicant or licensee
484 may not take any adverse action against a motor vehicle dealer
485 because the dealer sold or leased a motor vehicle to a customer
486 who exported the vehicle to a foreign country or who resold the
487 vehicle unless the applicant or licensee provides written
488 notification to the motor vehicle dealer of such resale or
489 export within 12 months after the date the dealer sold or leased
490 the vehicle to the customer.
491 (27) Notwithstanding the terms of any franchise agreement,
492 the applicant or licensee has failed or refused to indemnify and
493 hold harmless any motor vehicle dealer against any judgment for
494 damages, or settlements agreed to by the applicant or licensee,
495 including, without limitation, court costs and reasonable
496 attorney attorneys fees, arising out of complaints, claims, or
497 lawsuits, including, without limitation, strict liability,
498 negligence, misrepresentation, express or implied warranty, or
499 revocation or rescission of acceptance of the sale of a motor
500 vehicle, to the extent the judgment or settlement relates to the
501 alleged negligent manufacture, design, or assembly of motor
502 vehicles, parts, or accessories. Nothing herein shall obviate
503 the licensee’s obligations pursuant to chapter 681.
504 (28) The applicant or licensee has published, disclosed, or
505 otherwise made available in any form information provided by a
506 motor vehicle dealer with respect to sales prices of motor
507 vehicles or profit per motor vehicle sold. Other confidential
508 financial information provided by motor vehicle dealers shall
509 not be published, disclosed, or otherwise made publicly
510 available except in composite form. However, this information
511 may be disclosed with the written consent of the dealer or in
512 response to a subpoena or order of the department, a court or a
513 lawful tribunal, or introduced into evidence in such a
514 proceeding, after timely notice to an affected dealer.
515 (29) The applicant or licensee has failed to reimburse a
516 motor vehicle dealer in full for the reasonable cost of
517 providing a loaner vehicle to any customer who is having a
518 vehicle serviced at the motor vehicle dealer, if a loaner is
519 required by the applicant or licensee, or a loaner is expressly
520 part of an applicant or licensee’s customer satisfaction index
521 or computation.
522 (30) The applicant or licensee has conducted or threatened
523 to conduct any audit of a motor vehicle dealer in order to
524 coerce or attempt to coerce the dealer to forego any rights
525 granted to the dealer under ss. 320.60-320.70 or under the
526 agreement between the licensee and the motor vehicle dealer.
527 Nothing in this section shall prohibit an applicant or licensee
528 from reasonably and periodically auditing a dealer to determine
529 the validity of paid claims, as permitted under this chapter, if
530 the licensee complies with the provisions of ss. 320.60-320.70
531 applicable to such audits.
532 (31) From and after the effective date of enactment of this
533 provision, the applicant or licensee has offered to any motor
534 vehicle dealer a franchise agreement that:
535 (a) Requires that a motor vehicle dealer bring an
536 administrative or legal action in a venue outside of this state;
537 (b) Requires that any arbitration, mediation, or other
538 legal proceeding be conducted outside of this state; or
539 (c) Requires that a law of a state other than Florida be
540 applied to any legal proceeding between a motor vehicle dealer
541 and a licensee.
542 (32) Notwithstanding the terms of any franchise agreement,
543 the applicant or licensee has rejected or withheld approval of
544 any proposed transfer in violation of s. 320.643 or a proposed
545 change of executive management in violation of s. 320.644.
546 (33) The applicant or licensee has attempted to sell or
547 lease, or has sold or leased, used motor vehicles at retail of a
548 line-make that is the subject of any franchise agreement with a
549 motor vehicle dealer in this state, other than trucks with a net
550 weight of more than 8,000 pounds.
551 (34) The applicant or licensee, after the effective date of
552 this subsection, has included in any franchise agreement with a
553 motor vehicle dealer a mandatory obligation or requirement of
554 the motor vehicle dealer to purchase, sell, or lease, or offer
555 for purchase, sale, or lease, any quantity of used motor
556 vehicles.
557 (35) The applicant or licensee has refused to assign
558 allocation earned by a motor vehicle dealer, or has refused to
559 sell motor vehicles to a motor vehicle dealer, because the motor
560 vehicle dealer has failed or refused to purchase, sell, lease,
561 or certify a certain quantity of used motor vehicles prescribed
562 by the licensee.
563 (36)(a) Notwithstanding the terms of any franchise
564 agreement, in addition to any other statutory or contractual
565 rights of recovery after the voluntary or involuntary
566 termination, cancellation, or nonrenewal of a franchise, failing
567 to pay the motor vehicle dealer, as provided in paragraph (d),
568 the following amounts:
569 1. The net cost paid by the dealer for each new car or
570 truck in the dealer’s inventory with mileage of 2,000 miles or
571 less, or a motorcycle with mileage of 100 miles or less,
572 exclusive of mileage placed on the vehicle before it was
573 delivered to the dealer.
574 2. The current price charged for each new, unused,
575 undamaged, or unsold part or accessory that:
576 a. Is in the current parts catalogue and is still in the
577 original, resalable merchandising package and in an unbroken
578 lot, except that sheet metal may be in a comparable substitute
579 for the original package; and
580 b. Was purchased by the dealer directly from the
581 manufacturer or distributor or from an outgoing authorized
582 dealer as a part of the dealer’s initial inventory.
583 3. The fair market value of each undamaged sign owned by
584 the dealer which bears a trademark or trade name used or claimed
585 by the applicant or licensee or its representative which was
586 purchased from or at the request of the applicant or licensee or
587 its representative.
588 4. The fair market value of all special tools, data
589 processing equipment, and automotive service equipment owned by
590 the dealer which:
591 a. Were recommended in writing by the applicant or licensee
592 or its representative and designated as special tools and
593 equipment;
594 b. Were purchased from or at the request of the applicant
595 or licensee or its representative; and
596 c. Are in usable and good condition except for reasonable
597 wear and tear.
598 5. The cost of transporting, handling, packing, storing,
599 and loading any property subject to repurchase under this
600 section.
601 (b) If the termination, cancellation, or nonrenewal of the
602 dealer’s franchise is the result of the bankruptcy or
603 reorganization of a licensee or its common entity, or the result
604 of a licensee’s plan, scheme, or policy, whether or not publicly
605 declared, which is intended to or has the effect of decreasing
606 the number of, or eliminating, the licensee’s franchised motor
607 vehicle dealers of a line-make in this state, or the result of a
608 termination, elimination, or cessation of manufacture or
609 reorganization of a licensee or its common entity, or the result
610 of a termination, elimination, or cessation of manufacture or
611 distribution of a line-make, in addition to the above payments
612 to the dealer, the licensee or its common entity, shall be
613 liable to and shall pay the motor vehicle dealer for an amount
614 at least equal to the fair market value of the franchise for the
615 line-make, which shall be the greater of the value determined as
616 of the day the licensee announces the action that results in the
617 termination, cancellation, or nonrenewal, or the value
618 determined on the day that is 12 months before that date. Fair
619 market value of the franchise for the line-make includes only
620 the goodwill value of the dealer’s franchise for that line-make
621 in the dealer’s community or territory.
622 (c) This subsection does not apply to a termination,
623 cancellation, or nonrenewal that is implemented as a result of
624 the sale of the assets or corporate stock or other ownership
625 interests of the dealer.
626 (d) The dealer shall return the property listed in this
627 subsection to the licensee within 90 days after the effective
628 date of the termination, cancellation, or nonrenewal. The
629 licensee shall supply the dealer with reasonable instructions
630 regarding the method by which the dealer must return the
631 property. Absent shipping instructions and prepayment of
632 shipping costs from the licensee or its common entity, the
633 dealer shall tender the inventory and other items to be returned
634 at the dealer’s facility. The compensation for the property
635 shall be paid by the licensee or its common entity
636 simultaneously with the tender of inventory and other items,
637 provided that, if the dealer does not have clear title to the
638 inventory and other items and is not in a position to convey
639 that title to the licensee, payment for the property being
640 returned may be made jointly to the dealer and the holder of any
641 security interest.
642 (37) Notwithstanding the terms of any franchise agreement,
643 the applicant or licensee has refused to allow or has limited or
644 restricted a motor vehicle dealer from acquiring or adding a
645 sales or service operation for another line-make of motor
646 vehicles at the same or expanded facility at which the motor
647 vehicle dealer currently operates a dealership unless the
648 applicant or licensee can demonstrate that such refusal,
649 limitation, or restriction is justified by consideration of
650 reasonable facility and financial requirements and the dealer’s
651 performance for the existing line-make.
652 (38) The applicant or licensee has failed or refused to
653 offer a bonus, incentive, or other benefit program, in whole or
654 in part, to a dealer or dealers in this state which it offers to
655 all of its other same line-make dealers nationally or to all of
656 its other same line-make dealers in the licensee’s designated
657 zone, region, or other licensee-designated area of which this
658 state is a part, unless the failure or refusal to offer the
659 program in this state is reasonably supported by substantially
660 different economic or marketing considerations than are
661 applicable to the licensee’s same line-make dealers in this
662 state. For purposes of this chapter, a licensee may not
663 establish this state alone as a designated zone, region, or area
664 or any other designation for a specified territory. A licensee
665 may offer a bonus, rebate, incentive, or other benefit program
666 to its dealers in this state which is calculated or paid on a
667 per vehicle basis and is related in part to a dealer’s facility
668 or the expansion, improvement, remodeling, alteration, or
669 renovation of a dealer’s facility. Any dealer who does not
670 comply with the facility criteria or eligibility requirements of
671 such program is entitled to receive a reasonable percentage of
672 the bonus, incentive, rebate, or other benefit offered by the
673 licensee under that program by complying with the criteria or
674 eligibility requirements unrelated to the dealer’s facility
675 under that program. For purposes of the previous sentence, the
676 percentage unrelated to the facility criteria or requirements is
677 presumed to be “reasonable” if it is not less than 80 percent of
678 the total of the per vehicle bonus, incentive, rebate, or other
679 benefits offered under the program.
680 (39) Notwithstanding any agreement, program, incentive,
681 bonus, policy, or rule, an applicant or licensee may not fail to
682 make any payment pursuant to any agreement, program, incentive,
683 bonus, policy, or rule for any temporary replacement motor
684 vehicle loaned, rented, or provided by a motor vehicle dealer to
685 or for its service or repair customers, even if the temporary
686 replacement motor vehicle has been leased, rented, titled, or
687 registered to the motor vehicle dealer’s rental or leasing
688 division or an entity that is owned or controlled by the motor
689 vehicle dealer, provided that the motor vehicle dealer or its
690 rental or leasing division or entity complies with the written
691 and uniformly enforced vehicle eligibility, use, and reporting
692 requirements specified by the applicant or licensee in its
693 agreement, program, policy, bonus, incentive, or rule relating
694 to loaner vehicles.
695 (40) Notwithstanding the terms of any franchise agreement,
696 the applicant or licensee may not require or coerce, or attempt
697 to require or coerce, a motor vehicle dealer to purchase goods
698 or services from a vendor selected, identified, or designated by
699 the applicant or licensee, or one of its parents, subsidiaries,
700 divisions, or affiliates, by agreement, standard, policy,
701 program, incentive provision, or otherwise, without making
702 available to the motor vehicle dealer the option to obtain the
703 goods or services of substantially similar design and quality
704 from a vendor chosen by the motor vehicle dealer. If the motor
705 vehicle dealer exercises such option, the dealer must provide
706 written notice of its desire to use the alternative goods or
707 services to the applicant or licensee, along with samples or
708 clear descriptions of the alternative goods or services that the
709 dealer desires to use. The licensee or applicant shall have the
710 opportunity to evaluate the alternative goods or services for up
711 to 30 days to determine whether it will provide a written
712 approval to the motor vehicle dealer to use said alternative
713 goods or services. Approval may not be unreasonably withheld by
714 the applicant or licensee. If the motor vehicle dealer does not
715 receive a response from the applicant or licensee within 30
716 days, approval to use the alternative goods or services is
717 deemed granted. If a dealer using alternative goods or services
718 complies with this subsection and has received approval from the
719 licensee or applicant, the dealer is not ineligible for all
720 benefits described in the agreement, standard, policy, program,
721 incentive provision, or otherwise solely for having used such
722 alternative goods or services. As used in this subsection, the
723 term “goods or services” is limited to such goods and services
724 used to construct or renovate dealership facilities or furniture
725 and fixtures at the dealership facilities. The term does not
726 include:
727 (a) Any materials subject to the applicant’s or licensee’s
728 intellectual property rights, including copyright, trademark, or
729 trade dress rights;
730 (b) Any special tool and training as required by the
731 applicant or licensee;
732 (c) Any part to be used in repairs under warranty
733 obligations of an applicant or licensee;
734 (d) Any good or service paid for entirely by the applicant
735 or licensee; or
736 (e) Any applicant’s or licensee’s design or architectural
737 review service.
738 (41)(a) The applicant or licensee has failed to act in good
739 faith toward or to deal fairly with one of its franchised motor
740 vehicle dealers regarding the terms or provisions of an
741 agreement. For purposes of this subsection, an applicant or
742 licensee may have failed to act in good faith toward or deal
743 fairly with a motor vehicle dealer even in the absence of any
744 act or threat of coercion or intimidation made by the applicant
745 or licensee toward the motor vehicle dealer or even in the
746 absence of an allegation by the motor vehicle dealer that an
747 express term or provision of a franchise agreement has been
748 breached or violated by the applicant or licensee. In any action
749 brought under this subsection, the department or a court of
750 competent jurisdiction shall consider all of the following
751 factors, among others, in determining whether an applicant or
752 licensee has failed to act in good faith toward or deal fairly
753 with a motor vehicle dealer regarding the terms or provisions of
754 any agreement or in any of its dealings with a motor vehicle
755 dealer or in compliance with this subsection:
756 1. Whether the applicant or licensee has fairly taken into
757 account the motor vehicle dealer’s investment in its facilities,
758 its sales or service or parts promotions, its staffing, and its
759 general operations.
760 2. Whether the applicant or licensee has altered the rights
761 of the motor vehicle dealer or the dealer’s independence in
762 operating the dealership.
763 3. Whether the applicant or licensee has altered the sales
764 or service obligations of the motor vehicle dealer or adversely
765 impaired the investment or the financial return of the motor
766 vehicle dealer in any part of the motor vehicle dealer’s sales,
767 service, or parts operations.
768 4. Whether the applicant or licensee has fairly taken into
769 account the equities and interests of the motor vehicle dealer.
770 (b) An affirmative determination regarding one or more of
771 the factors under paragraph (a) is sufficient to sustain a
772 finding of failure to act in good faith toward or deal fairly
773 with a motor vehicle dealer.
774 (42)(a) An applicant or licensee may not establish,
775 implement, or enforce criteria for measuring the sales or
776 service performance of any of its franchised motor vehicle
777 dealers in this state which may have a negative material or
778 adverse effect on any dealer; which is unfair, unreasonable,
779 arbitrary, or inequitable; or which does not include all
780 applicable local and regional criteria, data, and facts.
781 Relevant and material national or state criteria or data may be
782 considered, but comparison to such data may not outweigh the
783 local and regional factors and data. The term “relevant and
784 material” includes, but is not limited to, comparable size
785 dealerships in comparable markets with comparable buyer
786 profiles. If such measurement is based, in whole or in part,
787 upon a survey, the survey must be based upon a statistically
788 significant and valid random sample. Upon the request of any
789 dealer, applicant, licensee, common entity, or affiliate thereof
790 that seeks to establish, implement, or enforce against any
791 dealer any such performance measurement must promptly describe
792 in writing to the motor vehicle dealer, in detail, how the
793 measurement criteria for the dealer’s sales and service
794 performance was designed, calculated, established, and applied.
795 (b) Any dealer, against whom any such performance
796 measurement criteria are sought to be used for any purpose
797 adverse to the dealer, has the right to file a complaint in any
798 court of competent jurisdiction alleging that such performance
799 criteria does not comply with this subsection and, if
800 successful, shall be entitled to damages pursuant to s. 320.697,
801 plus attorney fees and injunctive relief. The court is
802 authorized to issue temporary, preliminary, and permanent
803 injunctive relief without regard to the existence of an adequate
804 remedy at law or irreparable harm and without requiring a bond
805 of any complainant.
806 (c) In any proceeding under this subsection, the applicant
807 or licensee shall bear the ultimate burden of proof that the
808 dealer performance measurement criteria complies with this
809 subsection and has been implemented and enforced uniformly by
810 the applicant or licensee among its dealers in this state.
811
812 A motor vehicle dealer who can demonstrate that a violation of,
813 or failure to comply with, this section any of the preceding
814 provisions by an applicant or licensee will or can adversely and
815 pecuniarily affect the complaining dealer, shall be entitled to
816 pursue all of the remedies, procedures, and rights of recovery
817 available under ss. 320.695, and 320.697, and 320.699.
818 Section 2. Section 320.648, Florida Statutes, is created to
819 read:
820 320.648 Discriminatory practices; prohibitions.—
821 (1) For the purpose of avoiding competitive disadvantages
822 of a motor vehicle dealer in this state by reason of differences
823 in dealer cost of any motor vehicle and for the purpose of
824 eliminating discrimination by an applicant or licensee against
825 any motor vehicle dealer in this state, an applicant or licensee
826 is prohibited from:
827 (a) Selling or offering to sell a new motor vehicle to a
828 motor vehicle dealer at a lower actual, effective cost,
829 including the cost of the vehicle transportation, than the
830 actual, effective cost that the same model similarly equipped is
831 offered to or is available to another same line-make motor
832 dealer in this state during a similar period.
833 (b) Discriminating between its same-line make dealers in
834 this state by the use of a promotional, incentive, or bonus
835 plan, program, device, benefit, or otherwise, whether received
836 by the motor vehicle dealer at the time of sale of the new motor
837 vehicle to the dealer or later, which results in a lower cost,
838 including the cost of the vehicle transportation, than the
839 actual, effective cost that the same model similarly equipped is
840 offered or is available to another same line-make model motor
841 vehicle dealer in this state during a similar period.
842 (2) Subsection (1) does not prohibit a licensee’s or
843 applicant’s offer of a promotion, bonus, or incentive which in
844 effect does not discriminate against, and is functionally
845 available to, all competing dealers of the same line-make in
846 this state on substantially comparable terms, provided that it
847 contains fair and reasonably achievable sales or service
848 objectives.
849 (3) Subsection (1) does not obviate, affect, alter, or
850 diminish s. 320.64(38).
851 Section 3. Section 320.699, Florida Statutes, is amended to
852 read:
853 320.699 Administrative Hearings and adjudications;
854 procedure.—
855 (1) A motor vehicle dealer, or person with entitlements to
856 or in a motor vehicle dealer, who is directly and adversely
857 affected by the action or conduct of an applicant or licensee
858 which is alleged to be in violation of any provision of ss.
859 320.60-320.70, may seek a declaration and adjudication of its
860 rights with respect to the alleged action or conduct of the
861 applicant or licensee by:
862 (a) Filing with the department a request for a proceeding
863 and an administrative hearing which conforms substantially with
864 the requirements of ss. 120.569 and 120.57; or
865 (b) Filing with the department a written objection or
866 notice of protest pursuant to s. 320.642; or
867 (c) As an alternative, filing a complaint in any court of
868 competent jurisdiction to seek temporary, preliminary, or
869 permanent injunctive relief and civil damages pursuant to s.
870 320.697. Upon a prima facie showing by a complainant that such
871 violation has occurred, or may occur, the burden of proof of all
872 issues must then be upon the applicant or licensee to prove that
873 such violation did not or will not occur. In any such
874 proceeding, a court may issue injunctive relief without regard
875 to the existence of an adequate remedy at law or irreparable
876 harm and without requiring any bond and may award costs and
877 reasonable attorney fees to the complainant if relief is
878 granted.
879 (2) If a written objection or notice of protest is filed
880 with the department under paragraph (1)(b), a hearing shall be
881 held not sooner than 180 days nor later than 240 days from the
882 date of filing of the first objection or notice of protest,
883 unless the time is extended by the administrative law judge for
884 good cause shown. This subsection shall govern the schedule of
885 hearings in lieu of any other provision of law with respect to
886 administrative hearings conducted by the Department of Highway
887 Safety and Motor Vehicles or the Division of Administrative
888 Hearings, including performance standards of state agencies,
889 which may be included in current and future appropriations acts.
890 Section 4. This act shall take effect upon becoming a law.