Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. CS for SB 712
       
       
       
       
       
       
                                Ì224252{Î224252                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/04/2023           .                                
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       The Committee on Commerce and Tourism (Avila) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (8), (9), (10), (11), (12),
    6  (13), (14), (15), and (16) of section 320.60, Florida Statutes,
    7  are redesignated as subsections (9), (11), (12), (13), (14),
    8  (18), (10), (16), and (17), respectively, new subsections (8)
    9  and (14) are added to that section, and subsections (2) and
   10  present subsection (15) of that section are amended, to read:
   11         320.60 Definitions for ss. 320.61-320.70.—Whenever used in
   12  ss. 320.61-320.70, unless the context otherwise requires, the
   13  following words and terms have the following meanings:
   14         (2) “Common entity” means a person:
   15         (a) Who is directly or indirectly either controlled by or
   16  has more than 30 percent of its equity interest directly or
   17  indirectly owned, beneficially or of record, through any form of
   18  ownership structure, by a manufacturer, an importer, a
   19  distributor, or a licensee, or an affiliate thereof.
   20         (b)Who has more than 30 percent of its equity interest
   21  directly or indirectly controlled or owned, beneficially or of
   22  record, through any form of ownership structure, by one or more
   23  persons who also directly or indirectly control or own,
   24  beneficially or of record, more than 30 40 percent of the voting
   25  equity interests of a manufacturer, an importer, a distributor,
   26  or a licensee, or an affiliate thereof; or
   27         (b)Who shares directors or officers or partners with a
   28  manufacturer.
   29         (c)Notwithstanding the foregoing, an entity that would
   30  otherwise be considered a common entity of a distributor under
   31  paragraph (a) or paragraph (b) because of its relation to a
   32  distributor is not considered a common entity of that
   33  distributor if:
   34         1.The distributor that the entity is related to was a
   35  licensed distributor on March 1, 2023;
   36         2.The entity is not a common entity of a manufacturer or
   37  importer; and
   38         3.The distributor that the entity is related to is not,
   39  and has never been, a common entity of a manufacturer or
   40  importer.
   41         (8)“Independent person” means a person who is not an
   42  agent, parent, subsidiary, common entity, officer, director, or
   43  an employed representative of a licensee, manufacturer,
   44  importer, or distributor.
   45         (14)“Motor vehicle dealer association” means a not-for
   46  profit entity organized under the laws of this state and
   47  qualified as tax-exempt under s. 501(c)(6) of the Internal
   48  Revenue Code which acts as a trade association that primarily
   49  represents the interests of franchised motor vehicle dealers and
   50  has a membership of at least 500 franchised motor vehicle
   51  dealers as defined in s. 320.27(1)(c)1.
   52         (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail
   53  sales,” and “leases” includes:
   54         (a)Accepting a deposit or receiving a payment for the
   55  retail purchase, lease, or other use of a motor vehicle, but
   56  does not include facilitating a motor vehicle dealer’s
   57  acceptance of a deposit or receipt of a payment from a consumer
   58  and does not include receiving payment under a retail
   59  installment sale contract;
   60         (b)Accepting a reservation from a retail consumer for a
   61  specific motor vehicle identified by a vehicle identification
   62  number or other product identifier;
   63         (c)Setting the retail price for the purchase, lease, or
   64  other use of a motor vehicle, but does not include setting a
   65  manufacturer’s suggested retail price;
   66         (d)Offering or negotiating with a retail consumer terms
   67  for the purchase, lease, or other use of a motor vehicle;
   68         (e)Offering or negotiating with a retail consumer a value
   69  for a motor vehicle being traded in as part of the purchase,
   70  lease, or other use of a motor vehicle, but does not include a
   71  website or other means of electronic communication that
   72  identifies to a consumer a conditional trade-in value and that
   73  contains language informing the consumer that the trade-in value
   74  is not binding on any motor vehicle dealer;
   75         (f) Any transaction where the title of a motor vehicle or a
   76  used motor vehicle is transferred to a retail consumer; or, and
   77  also
   78         (g) Any retail lease transaction where a retail consumer
   79  customer leases a vehicle for a period of at least 12 months,
   80  but does not include administering lease agreements, taking
   81  assignments of leases, performing required actions pursuant to
   82  such leases, or receiving payments under a lease agreement that
   83  was originated by a motor vehicle dealer. Establishing a price
   84  for sale pursuant to s. 320.64(24) does not constitute a sale or
   85  lease.
   86         Section 2. Section 320.605, Florida Statutes, is amended to
   87  read:
   88         320.605 Legislative intent.—It is the intent of the
   89  Legislature to protect the public health, safety, and welfare of
   90  the citizens of the state by regulating the licensing of motor
   91  vehicle dealers and manufacturers, maintaining competition,
   92  providing consumer protection and fair trade and providing
   93  minorities with opportunities for full participation as motor
   94  vehicle dealers. Sections 320.61-320.70 are intended to apply
   95  solely to the licensing of manufacturers, factory branches,
   96  distributors, and importers and do not apply to non-motor
   97  vehicle-related businesses.
   98         Section 3. Subsections (18), (23), and (24) of section
   99  320.64, Florida Statutes, are amended to read:
  100         320.64 Denial, suspension, or revocation of license;
  101  grounds.—A license of a licensee under s. 320.61 may be denied,
  102  suspended, or revoked within the entire state or at any specific
  103  location or locations within the state at which the applicant or
  104  licensee engages or proposes to engage in business, upon proof
  105  that the section was violated with sufficient frequency to
  106  establish a pattern of wrongdoing, and a licensee or applicant
  107  shall be liable for claims and remedies provided in ss. 320.695
  108  and 320.697 for any violation of any of the following
  109  provisions. A licensee is prohibited from committing the
  110  following acts:
  111         (18) The applicant or licensee has established a system of
  112  motor vehicle allocation or distribution or has implemented a
  113  system of allocation or distribution of motor vehicles to one or
  114  more of its franchised motor vehicle dealers which:
  115         (a) Reduces or alters allocations or supplies of new motor
  116  vehicles to the dealer to achieve, directly or indirectly, a
  117  purpose that is prohibited by ss. 320.60-320.70;
  118         (b)Conditionally or unconditionally reserves a specific
  119  motor vehicle identified by vehicle identification number or
  120  other unique identifier for a specifically named person, except
  121  for purposes of replacing a consumer’s vehicle pursuant to
  122  chapter 681;
  123         (c)Requires or incentivizes motor vehicle dealers to sell
  124  or lease, or to negotiate the sale or lease of, a specific motor
  125  vehicle identified by vehicle identification number or other
  126  unique identifier to a specifically named person;
  127         (d)Requires or incentivizes motor vehicle dealers to sell
  128  or lease a motor vehicle at a specified price or profit margin
  129  or restricts the price at which a motor vehicle dealer may sell
  130  or lease a motor vehicle; or
  131         (e)Is, or which otherwise is unfair, inequitable,
  132  unreasonably discriminatory, or not supportable by reason and
  133  good cause after considering the equities of the affected motor
  134  vehicles dealer or dealers. As used in this paragraph, “unfair”
  135  includes, but is not limited to, refusing or failing to offer to
  136  any dealer an equitable supply of new vehicles under its
  137  franchise, by model, mix, or color, as the licensee offers or
  138  allocates to its other same line-make dealers in this state or
  139  using the number of motor vehicles preordered or reserved by
  140  consumers as a factor in determining the allocation of motor
  141  vehicles to motor vehicle dealers.
  142  
  143  An applicant or licensee shall maintain for 3 years records that
  144  describe its methods or formula of allocation and distribution
  145  of its motor vehicles and records of its actual allocation and
  146  distribution of motor vehicles to its motor vehicle dealers in
  147  this state. As used in this subsection, “unfair” includes,
  148  without limitation, the refusal or failure to offer to any
  149  dealer an equitable supply of new vehicles under its franchise,
  150  by model, mix, or colors as the licensee offers or allocates to
  151  its other same line-make dealers in the state.
  152         (23) The applicant or licensee has engaged in any of the
  153  activities of a motor vehicle dealer as defined in s.
  154  320.60(13)(a) and (16) or has competed or is competing with
  155  respect to any activity covered by the franchise agreement with
  156  a motor vehicle dealer of the same line-make located in this
  157  state with whom the applicant or licensee has entered into a
  158  franchise agreement, except as permitted in s. 320.645 or in
  159  subsection (24) with respect to the remote electronic
  160  transmission of a permanent or temporary feature or improvement
  161  of a motor vehicle.
  162         (24)(a)Except as provided in paragraph (b), the applicant
  163  or licensee, or common entity thereof, has sold or leased a
  164  motor vehicle to any retail consumer in the state, or has sold
  165  or activated for a fee to any retail consumer in this state any
  166  permanent or temporary motor vehicle feature or improvement that
  167  functions through hardware or components installed on the motor
  168  vehicle, except through a motor vehicle dealer properly licensed
  169  pursuant to s. 320.27 and holding a franchise agreement for the
  170  line-make that includes the motor vehicle. Notwithstanding this
  171  subsection, an applicant or a licensee, or common entity
  172  thereof, may sell or activate for a fee a permanent or temporary
  173  motor vehicle feature or improvement to a retail consumer in
  174  this state only if the feature or improvement is provided
  175  directly to the motor vehicle through remote electronic
  176  transmission, provided that if such motor vehicle was sold or
  177  leased as new by a motor vehicle dealer in this state within the
  178  3-year period preceding such remote electronic transmission,
  179  then the applicant or licensee must pay the such motor vehicle
  180  dealer a minimum of 8 percent of the payment received by the
  181  applicant, licensee, or common entity from the sale of the
  182  feature or improvement. As used in this subsection, the term
  183  “feature or improvement” includes the activation or use of motor
  184  vehicle components or hardware, but does not include services
  185  that require the transmission of data or information to or from
  186  the motor vehicle while the service is being used. Payments
  187  required under this subsection shall be made within 30 days of
  188  the date of sale of the feature or improvement.
  189         (b)For motorcycle dealers, manufacturers, factory
  190  branches, distributors, or importers, such applicant or licensee
  191  has sold a motorcycle to any retail consumer in the state except
  192  through a dealer holding a franchise agreement for the line-make
  193  that includes the motorcycle.
  194         (c) This subsection section does not apply to sales by the
  195  applicant or licensee of motor vehicles to its current
  196  employees, employees of companies affiliated by common
  197  ownership, charitable not-for-profit organizations, and the
  198  Federal Government.
  199  
  200  A motor vehicle dealer who can demonstrate that a violation of,
  201  or failure to comply with, any of the preceding provisions by an
  202  applicant or licensee will or may adversely and pecuniarily
  203  affect the complaining dealer, shall be entitled to pursue all
  204  of the remedies, procedures, and rights of recovery available
  205  under ss. 320.695 and 320.697.
  206         Section 4. Subsection (6) of section 320.642, Florida
  207  Statutes, is amended to read:
  208         320.642 Dealer licenses in areas previously served;
  209  procedure.—
  210         (6) When a proposed addition or relocation concerns a
  211  dealership that performs or is to perform only service, as
  212  defined in s. 320.60 s. 320.60(16), and will not or does not
  213  sell or lease new motor vehicles, as defined in s. 320.60 s.
  214  320.60(15), the proposal shall be subject to notice and protest
  215  pursuant to the provisions of this section.
  216         (a) Standing to protest the addition or relocation of a
  217  service-only dealership shall be limited to those instances in
  218  which the applicable mileage requirement established in
  219  subparagraphs (3)(a)2. and (3)(b)1. is met.
  220         (b) The addition or relocation of a service-only dealership
  221  shall not be subject to protest if:
  222         1. The applicant for the service-only dealership location
  223  is an existing motor vehicle dealer of the same line-make as the
  224  proposed additional or relocated service-only dealership;
  225         2. There is no existing dealer of the same line-make closer
  226  than the applicant to the proposed location of the additional or
  227  relocated service-only dealership; and
  228         3. The proposed location of the additional or relocated
  229  service-only dealership is at least 7 miles from all existing
  230  motor vehicle dealerships of the same line-make, other than
  231  motor vehicle dealerships owned by the applicant.
  232         (c) In determining whether existing franchised motor
  233  vehicle dealers are providing adequate representations in the
  234  community or territory for the line-make in question in a
  235  protest of the proposed addition or relocation of a service-only
  236  dealership, the department may consider the elements set forth
  237  in paragraph (2)(b), provided:
  238         1. With respect to subparagraph (2)(b)1., only the impact
  239  as it relates to service may be considered;
  240         2. Subparagraph (2)(b)3. shall not be considered;
  241         3. With respect to subparagraph (2)(b)9., only service
  242  facilities shall be considered; and
  243         4. With respect to subparagraph (2)(b)11., only the volume
  244  of service business transacted shall be considered.
  245         (d) If an application for a service-only dealership is
  246  granted, the department shall issue a license which permits only
  247  service, as defined in s. 320.60 s. 320.60(16), and does not
  248  permit the selling or leasing of new motor vehicles, as defined
  249  in s. 320.60 s. 320.60(15). If a service-only dealership
  250  subsequently seeks to sell new motor vehicles at its location,
  251  the notice and protest provisions of this section shall apply.
  252         Section 5. Subsection (1), paragraph (a) of subsection (2),
  253  and subsection (4) of section 320.645, Florida Statutes, are
  254  amended to read:
  255         320.645 Restriction upon ownership of dealership by
  256  licensee.—
  257         (1) A No licensee, manufacturer, importer, or distributor,
  258  manufacturer, or agent of the licensee, a manufacturer,
  259  importer, or distributor, or any parent, subsidiary, common
  260  entity, or officer, or employed representative of the licensee,
  261  manufacturer, importer, or distributor may not directly or
  262  indirectly shall own, or operate, or control, by contract,
  263  agreement, or otherwise either directly or indirectly, a motor
  264  vehicle dealership for any line-make in this state if the
  265  licensee, manufacturer, importer, or distributor has
  266  manufactured, imported, or distributed for the sale or service
  267  of motor vehicles of any line-make which have been or are
  268  offered for sale under a franchise agreement with a motor
  269  vehicle dealer in this state with an independent person. Any
  270  person who is not prohibited by this section from owning,
  271  operating, or controlling a motor vehicle dealership may be
  272  issued a license pursuant to s. 320.27. Any person prohibited by
  273  this section from owning, operating, or controlling a motor
  274  vehicle dealership. A licensee may not be issued a motor vehicle
  275  dealer license pursuant to s. 320.27. However, a no such
  276  licensee subject to the prohibition in this section is not will
  277  be deemed to be in violation of this section:
  278         (a) When operating a motor vehicle dealership for a
  279  temporary period, not to exceed 1 year, during the transition
  280  from one owner of the motor vehicle dealership to another;
  281         (b) When operating a motor vehicle dealership temporarily
  282  for a reasonable period for the exclusive purpose of broadening
  283  the diversity of its dealer body and enhancing opportunities for
  284  qualified persons who are part of a group that has historically
  285  been underrepresented in its dealer body, or for other qualified
  286  persons who the licensee deems lack the resources to purchase or
  287  capitalize the dealership outright, in a bona fide relationship
  288  with an independent person, other than a licensee or its agent
  289  or affiliate, who has made a significant investment that is
  290  subject to loss in the dealership within the dealership’s first
  291  year of operation and who can reasonably expect to acquire full
  292  ownership of the dealership on reasonable terms and conditions;
  293  or
  294         (c) If the department determines, after a hearing on the
  295  matter, pursuant to chapter 120, at the request of any person,
  296  that there is no independent person available in the community
  297  or territory to own and operate the motor vehicle dealership in
  298  a manner consistent with the public interest. This paragraph
  299  shall apply only if the motor vehicle dealership at issue sells
  300  motor vehicles of a line-make that, at the time of the hearing,
  301  is offered for sale by at least one other existing motor vehicle
  302  dealership not owned, operated, or controlled by the licensee,
  303  an officer or employed representative of the licensee, a parent,
  304  subsidiary, or common entity of the licensee, or a manufacturer,
  305  importer, or distributor.
  306  
  307  In the any such case of a, the licensee must continue to make
  308  the motor vehicle dealership owned or operated pursuant to
  309  paragraph (a), paragraph (b), or paragraph (c), the dealership
  310  must be continually made available for sale to an independent
  311  person at a fair and reasonable price. Approval of the sale of
  312  such a motor vehicle dealership to a proposed motor vehicle
  313  dealer shall not be unreasonably withheld.
  314         (2) As used in this section, the term:
  315         (a) “Independent person” is a person who is not an officer,
  316  director, or employee of the licensee.
  317         (4) Nothing in this chapter shall prohibit a distributor as
  318  defined in s. 320.60 s. 320.60(5) or common entity an affiliate
  319  thereof that is not a manufacturer or importer, a division of a
  320  manufacturer or importer, an entity that is controlled by a
  321  manufacturer or importer, or a common entity of a manufacturer
  322  or importer, and that is not owned, in whole or in part,
  323  directly or indirectly, by a manufacturer or importer, as
  324  defined in s. 320.60 s. 320.60(9), from receiving a license or
  325  licenses as defined in s. 320.27 and owning and operating a
  326  motor vehicle dealership or dealerships that sell or service
  327  motor vehicles other than any line-make of motor vehicles
  328  distributed by the distributor. Neither a distributor nor an
  329  affiliate thereof may receive a license pursuant to s. 320.27
  330  for a motor vehicle dealership, or own or operate a motor
  331  vehicle dealership, that sells or services motor vehicles of the
  332  line-make of motor vehicles distributed by the distributor.
  333         Section 6. Section 320.67, Florida Statutes, is amended to
  334  read:
  335         320.67 Inquiry and inspection of books or other documents
  336  of licensee.—
  337         (1) The department shall conduct an inquiry of a licensee
  338  may inspect the pertinent books, records, letters, and contracts
  339  of a licensee relating to any written complaint alleging a
  340  violation of any provision of ss. 320.60-320.70 made to it
  341  against such licensee made by a motor vehicle dealer with a
  342  current franchise agreement issued by the licensee, or a motor
  343  vehicle dealer association with at least one member with a
  344  current franchise agreement issued by the licensee.
  345         (2) In the exercise of its duties under this section, the
  346  department is granted and authorized to exercise the power of
  347  subpoena for the purposes of compelling production of and
  348  inspecting pertinent books, records, letters, and contracts of a
  349  licensee and compelling the attendance of witnesses at
  350  deposition and the production of any documentary evidence
  351  necessary to the disposition by it of any written complaint
  352  under this section. The inquiry required by this section must be
  353  commenced within 30 days after receipt of the written complaint.
  354  The department may allow the licensee that is the subject of the
  355  complaint no more than 60 days from commencement of the inquiry
  356  to provide a written response. Within 30 days after the deadline
  357  for a written response by the licensee, the department must
  358  provide a written response to the complainant stating whether
  359  the department intends to take action against the licensee under
  360  subsection (3) and, if so, what action the department intends to
  361  take. Any information obtained may not be used against the
  362  licensee as the basis for a criminal prosecution under the laws
  363  of this state.
  364         (3)If, as the result of an inquiry conducted under this
  365  section, the department determines that a licensee has violated
  366  ss. 320.60-320.70, the department must take appropriate action
  367  against the licensee, which may include license suspension or
  368  revocation; denial of a license renewal application; assessment,
  369  imposition, levy, and collection of an appropriate civil fine;
  370  or instituting a civil action for issuance of an injunction
  371  pursuant to s. 320.695.
  372         (4)This section does not alter or affect the rights of a
  373  motor vehicle dealer to bring a claim or action against a
  374  licensee pursuant to any other provision of ss. 320.60-320.70.
  375         Section 7. Subsection (13) of section 681.102, Florida
  376  Statutes, is amended to read:
  377         681.102 Definitions.—As used in this chapter, the term:
  378         (13) “Manufacturer” means any person, whether a resident or
  379  nonresident of this state, who manufactures or assembles motor
  380  vehicles, or who manufactures or assembles chassis for
  381  recreational vehicles, or who manufactures or installs on
  382  previously assembled truck or recreational vehicle chassis
  383  special bodies or equipment which, when installed, forms an
  384  integral part of the motor vehicle, or a distributor or an
  385  importer as those terms are defined in s. 320.60 s. 320.60(5),
  386  or an importer as defined in s. 320.60(7). A dealer as defined
  387  in s. 320.60 s. 320.60(11)(a) shall not be deemed to be a
  388  manufacturer, distributor, or importer as provided in this
  389  section.
  390         Section 8. Section 681.113, Florida Statutes, is amended to
  391  read:
  392         681.113 Dealer liability.—Except as provided in ss.
  393  681.103(3) and 681.114(2), nothing in this chapter imposes any
  394  liability on a dealer as defined in s. 320.60 s. 320.60(11)(a)
  395  or creates a cause of action by a consumer against a dealer,
  396  except for written express warranties made by the dealer apart
  397  from the manufacturer’s warranties. A dealer may not be made a
  398  party defendant in any action involving or relating to this
  399  chapter, except as provided in this section. The manufacturer
  400  shall not charge back or require reimbursement by the dealer for
  401  any costs, including, but not limited to, any refunds or vehicle
  402  replacements, incurred by the manufacturer arising out of this
  403  chapter, in the absence of evidence that the related repairs had
  404  been carried out by the dealer in a manner substantially
  405  inconsistent with the manufacturer’s published instructions.
  406         Section 9. This act shall take effect July 1, 2023.
  407  
  408  ================= T I T L E  A M E N D M E N T ================
  409  And the title is amended as follows:
  410         Delete everything before the enacting clause
  411  and insert:
  412                        A bill to be entitled                      
  413         An act relating to motor vehicle sales; amending s.
  414         320.60, F.S.; revising and providing definitions;
  415         amending s. 320.605, F.S.; providing legislative
  416         intent; amending s. 320.64, F.S.; prohibiting an
  417         applicant or a licensee from certain actions in the
  418         allocation or distribution of motor vehicles to
  419         franchised motor vehicle dealers; revising the
  420         definition of the term “unfair”; prohibiting
  421         applicants and licensees from engaging in certain
  422         activities of motor vehicle dealers; authorizing an
  423         applicant or licensee, or common entity thereof, to
  424         sell or activate certain motor vehicle features or
  425         improvements through remote electronic transmission;
  426         providing for a payment of the percentage of such sale
  427         or activation to a motor vehicle dealer; providing
  428         applicability; amending s. 320.642, F.S.; conforming
  429         cross-references; amending s. 320.645, F.S.; revising
  430         provisions prohibiting a manufacturer, a distributor,
  431         or an importer from owning, operating, or controlling
  432         a motor vehicle dealership in this state; specifying
  433         when certain licenses may be and are prohibited from
  434         being issued; revising exceptions to certain
  435         prohibitions on licensees; providing applicability;
  436         making technical changes; deleting the definition of
  437         the term “independent person”; conforming cross
  438         references; amending s. 320.67, F.S.; requiring the
  439         Department of Highway Safety and Motor Vehicles to
  440         conduct an inquiry relating to certain written
  441         complaints; providing purposes of the department’s use
  442         of a subpoena; authorizing the department to allow a
  443         written response to the complaint; requiring the
  444         department to commence the inquiry by a certain
  445         timeframe; requiring the department to provide a
  446         certain written response to the complainant by a
  447         certain date; requiring the department to take certain
  448         action if the department determines that a licensee
  449         violated certain statutes; providing construction;
  450         amending ss. 681.102 and 681.113, F.S.; conforming
  451         cross-references; providing an effective date.