Florida Senate - 2019                                    SB 1178
       By Senator Gruters
       23-00576A-19                                          20191178__
    1                        A bill to be entitled                      
    2         An act relating to franchised motor vehicle dealers;
    3         amending s. 320.64, F.S.; prohibiting an applicant or
    4         licensee from establishing or implementing additional
    5         criteria for measuring the sales or service
    6         performance of franchised motor vehicle dealers;
    7         requiring an applicant, licensee, or common entity, or
    8         an affiliate thereof, which attempts to enforce any
    9         performance measurement criteria against a motor
   10         vehicle dealer to describe in writing to the dealer
   11         how the criteria were designed, calculated,
   12         established, and uniformly applied; requiring an
   13         applicant or licensee to provide in writing to each
   14         dealer of the same line-make certain performance
   15         requirements, sales goals, or sales objectives for any
   16         sales incentive or reimbursement program, subject to
   17         certain requirements; authorizing a dealer that
   18         contends that an assigned performance requirement,
   19         sales goal, or sales objective violates certain
   20         prohibited activities of licensees to maintain certain
   21         injunctive and administrative actions; requiring the
   22         applicant or licensee to have the burden of proving by
   23         a preponderance of the evidence that the criteria for
   24         measuring the performance, goal, or objective comply
   25         with a provision that prohibits certain activities of
   26         licensees; providing an effective date.
   28  Be It Enacted by the Legislature of the State of Florida:
   30         Section 1. Subsection (42) of section 320.64, Florida
   31  Statutes, is amended to read:
   32         320.64 Denial, suspension, or revocation of license;
   33  grounds.—A license of a licensee under s. 320.61 may be denied,
   34  suspended, or revoked within the entire state or at any specific
   35  location or locations within the state at which the applicant or
   36  licensee engages or proposes to engage in business, upon proof
   37  that this the section was violated with sufficient frequency to
   38  establish a pattern of wrongdoing, and a licensee or applicant
   39  shall be liable for claims and remedies provided in ss. 320.695
   40  and 320.697 for any violation of any of the following
   41  provisions. A licensee is prohibited from committing the
   42  following acts:
   43         (42)(a) The applicant or licensee has established,
   44  implemented, or enforced criteria for measuring the sales or
   45  service performance of any of its franchised motor vehicle
   46  dealers in this state, including a performance requirement,
   47  goal, or objective for any such dealer, which have or may have a
   48  material or adverse effect on any motor vehicle dealer,
   49  including the dealer’s right to payment under any incentive or
   50  reimbursement program, and which:
   51         1. Are unfair, unreasonable, arbitrary, or inequitable, or
   52  not applied uniformly to other same line-make dealers of
   53  comparable size in comparable markets; or
   54         2. Do not include all relevant and material local and
   55  regional criteria, data, and facts. Relevant and material
   56  criteria, data, or facts include, but are not limited to, those
   57  of motor vehicle dealerships of comparable size in comparable
   58  markets. If such performance measurement criteria are based, in
   59  whole or in part, on a survey, such survey must be based on a
   60  statistically significant and valid random sample.
   61         (b) An applicant, licensee, or common entity, or an
   62  affiliate thereof, which enforces or attempts to enforce against
   63  any motor vehicle dealer any such performance measurement
   64  criteria, including a performance requirement, goal, or
   65  objective, shall, upon the request of the motor vehicle dealer,
   66  describe in writing to the motor vehicle dealer, in detail, how
   67  the performance measurement criteria were designed, calculated,
   68  established, and uniformly applied.
   69         (c) Before implementing any sales incentive or
   70  reimbursement program, the applicant or licensee shall provide
   71  in writing to each dealer of the same line-make the dealer’s
   72  performance requirement, sales goal, or sales objective for the
   73  program, which shall include a detailed explanation of the
   74  methodology, criteria, and calculations used to establish the
   75  requirement, sales goal, or sales objective. The applicant or
   76  licensee shall also provide each dealer with the performance
   77  requirement, sales goal, or sales objective for the program of
   78  all other same line-make dealers within this state. Any dealer
   79  that contends that an assigned performance requirement, sales
   80  goal, or sales objective violates this subsection may maintain
   81  an action pursuant to s. 320.695 to enjoin application of the
   82  incentive or reimbursement program in this state or may maintain
   83  an action pursuant to s. 320.699 to seek a declaration that the
   84  incentive or reimbursement program violates this subsection,
   85  notwithstanding the fact that the applicant or licensee has not
   86  yet implemented the program.
   87         (d) In any proceeding asserting that an applicant or
   88  licensee has violated this subsection, the applicant or licensee
   89  has the burden of proving by a preponderance of the evidence
   90  that the criteria for measuring the performance, goal, or
   91  objective comply with this subsection.
   93  A motor vehicle dealer who can demonstrate that a violation of,
   94  or failure to comply with, any of the preceding provisions by an
   95  applicant or licensee will or may adversely and pecuniarily
   96  affect the complaining dealer, shall be entitled to pursue all
   97  of the remedies, procedures, and rights of recovery available
   98  under ss. 320.695 and 320.697.
   99         Section 2. This act shall take effect July 1, 2019.