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.
27
28 Be It Enacted by the Legislature of the State of Florida:
29
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.
92
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.