Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. CS for SB 712
       
       
       
       
       
       
                                Ì335364/Î335364                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: FAV            .                                
                  04/04/2023           .                                
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       The Committee on Commerce and Tourism (Avila) recommended the
       following:
       
    1         Senate Amendment to Amendment (224252) (with title
    2  amendment)
    3  
    4         Delete lines 19 - 194
    5  and insert:
    6  distributor, or a licensee, or an affiliate thereof; or
    7         (b)Who has more than 30 percent of its equity interest
    8  directly or indirectly controlled or owned, beneficially or of
    9  record, through any form of ownership structure, by one or more
   10  persons who also directly or indirectly control or own,
   11  beneficially or of record, more than 30 40 percent of the voting
   12  equity interests of a manufacturer, an importer, a distributor,
   13  or a licensee, or an affiliate thereof; or
   14         (b)Who shares directors or officers or partners with a
   15  manufacturer.
   16         (c)Notwithstanding the foregoing, an entity that would
   17  otherwise be considered a common entity of a distributor under
   18  paragraph (a) or paragraph (b) because of its relation to a
   19  distributor is not considered a common entity of that
   20  distributor if:
   21         1.The distributor that the entity is related to was a
   22  licensed distributor on March 1, 2023;
   23         2.The entity is not a common entity of a manufacturer or
   24  importer; and
   25         3.The distributor that the entity is related to is not,
   26  and has never been, a common entity of a manufacturer or
   27  importer.
   28         (8)“Independent person” means a person who is not an
   29  agent, parent, subsidiary, common entity, officer, director, or
   30  an employed representative of a licensee, manufacturer,
   31  importer, or distributor.
   32         (14)“Motor vehicle dealer association” means a not-for
   33  profit entity organized under the laws of this state and
   34  qualified as tax-exempt under s. 501(c)(6) of the Internal
   35  Revenue Code which acts as a trade association that primarily
   36  represents the interests of franchised motor vehicle dealers and
   37  has a membership of at least 500 franchised motor vehicle
   38  dealers as defined in s. 320.27(1)(c)1.
   39         (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail
   40  sales,” and “leases” includes:
   41         (a)Accepting a deposit or receiving a payment for the
   42  retail purchase, lease, or other use of a motor vehicle, but
   43  does not include facilitating a motor vehicle dealer’s
   44  acceptance of a deposit or receipt of a payment from a consumer,
   45  and does not include receiving payment under a retail
   46  installment sale contract;
   47         (b)Accepting a reservation from a retail consumer for a
   48  specific motor vehicle identified by a vehicle identification
   49  number or other product identifier;
   50         (c)Setting the retail price for the purchase, lease, or
   51  other use of a motor vehicle, but does not include setting a
   52  Manufacturer’s Suggested Retail Price;
   53         (d)Offering or negotiating with a retail consumer terms
   54  for the purchase, lease, or other use of a motor vehicle;
   55         (e)Offering or negotiating with a retail consumer a value
   56  for a motor vehicle being traded in as part of the purchase,
   57  lease, or other use of a motor vehicle, but does not include a
   58  website or other means of electronic communication that
   59  identifies to a consumer a conditional trade-in value and that
   60  contains language informing the consumer that the trade-in value
   61  is not binding on any motor vehicle dealer;
   62         (f) Any transaction where the title of a motor vehicle or a
   63  used motor vehicle is transferred to a retail consumer; or, and
   64  also
   65         (g) Any retail lease transaction where a retail consumer
   66  customer leases a vehicle for a period of at least 12 months,
   67  but does not include administering lease agreements, taking
   68  assignments of leases, performing required actions pursuant to
   69  such leases, or receiving payments under a lease agreement that
   70  was originated by a motor vehicle dealer. Establishing a price
   71  for sale pursuant to s. 320.64(24) does not constitute a sale or
   72  lease.
   73         Section 2. Section 320.605, Florida Statutes, is amended to
   74  read:
   75         320.605 Legislative intent.—It is the intent of the
   76  Legislature to protect the public health, safety, and welfare of
   77  the citizens of the state by regulating the licensing of motor
   78  vehicle dealers and manufacturers, maintaining competition,
   79  providing consumer protection and fair trade and providing
   80  minorities with opportunities for full participation as motor
   81  vehicle dealers. Sections 320.61-320.70 are intended to apply
   82  solely to the licensing of manufacturers, factory branches,
   83  distributors, and importers and do not apply to non-motor
   84  vehicle-related businesses.
   85         Section 3. Subsections (18), (23), and (24) of section
   86  320.64, Florida Statutes, are amended to read:
   87         320.64 Denial, suspension, or revocation of license;
   88  grounds.—A license of a licensee under s. 320.61 may be denied,
   89  suspended, or revoked within the entire state or at any specific
   90  location or locations within the state at which the applicant or
   91  licensee engages or proposes to engage in business, upon proof
   92  that the section was violated with sufficient frequency to
   93  establish a pattern of wrongdoing, and a licensee or applicant
   94  shall be liable for claims and remedies provided in ss. 320.695
   95  and 320.697 for any violation of any of the following
   96  provisions. A licensee is prohibited from committing the
   97  following acts:
   98         (18) The applicant or licensee has established a system of
   99  motor vehicle allocation or distribution or has implemented a
  100  system of allocation or distribution of motor vehicles to one or
  101  more of its franchised motor vehicle dealers which:
  102         (a) Reduces or alters allocations or supplies of new motor
  103  vehicles to the dealer to achieve, directly or indirectly, a
  104  purpose that is prohibited by ss. 320.60-320.70;
  105         (b)Conditionally or unconditionally reserves a specific
  106  motor vehicle identified by vehicle identification number or
  107  other unique identifier for a specifically named person, except
  108  for purposes of replacing a consumer’s vehicle pursuant to
  109  chapter 681;
  110         (c)Requires or incentivizes motor vehicle dealers to sell
  111  or lease, or to negotiate the sale or lease of, a specific motor
  112  vehicle identified by vehicle identification number or other
  113  unique identifier to a specifically named person;
  114         (d)Requires or incentivizes motor vehicle dealers to sell
  115  or lease a motor vehicle at a specified price or profit margin
  116  or restricts the price at which a motor vehicle dealer may sell
  117  or lease a motor vehicle; or
  118         (e)Is, or which otherwise is unfair, inequitable,
  119  unreasonably discriminatory, or not supportable by reason and
  120  good cause after considering the equities of the affected motor
  121  vehicles dealer or dealers. As used in this paragraph, the term
  122  “unfair” includes, but is not limited to, refusing or failing to
  123  offer to any dealer an equitable supply of new vehicles under
  124  its franchise, by model, mix, or color, as the licensee offers
  125  or allocates to its other same line-make dealers in this state
  126  or using the number of motor vehicles preordered or reserved by
  127  consumers as a factor in determining the allocation of motor
  128  vehicles to motor vehicle dealers.
  129  
  130  An applicant or licensee shall maintain for 3 years records that
  131  describe its methods or formula of allocation and distribution
  132  of its motor vehicles and records of its actual allocation and
  133  distribution of motor vehicles to its motor vehicle dealers in
  134  this state. As used in this subsection, “unfair” includes,
  135  without limitation, the refusal or failure to offer to any
  136  dealer an equitable supply of new vehicles under its franchise,
  137  by model, mix, or colors as the licensee offers or allocates to
  138  its other same line-make dealers in the state.
  139         (23) The applicant or licensee has engaged in any of the
  140  activities of a motor vehicle dealer as defined in s.
  141  320.60(13)(a) or any activities described in s. 320.60(16) or
  142  has competed or is competing with respect to any activity
  143  covered by the franchise agreement with a motor vehicle dealer
  144  of the same line-make located in this state with whom the
  145  applicant or licensee has entered into a franchise agreement,
  146  except as permitted in s. 320.645 or in subsection (24) with
  147  respect to the remote electronic transmission of a permanent or
  148  temporary feature or improvement of a motor vehicle.
  149         (24) The applicant or licensee, or common entity thereof,
  150  has sold or leased a motor vehicle to any retail consumer in
  151  this state, or has sold or activated for a fee to any retail
  152  consumer in the state any permanent or temporary motor vehicle
  153  feature or improvement that functions through hardware or
  154  components installed on the motor vehicle, except through a
  155  motor vehicle dealer properly licensed pursuant to s. 320.27 and
  156  holding a franchise agreement for the line-make that includes
  157  the motor vehicle. Notwithstanding this subsection, an applicant
  158  or a licensee, or common entity thereof, may sell or activate
  159  for a fee a permanent or temporary motor vehicle feature or
  160  improvement to a retail consumer in this state only if the
  161  feature or improvement is provided directly to the motor vehicle
  162  through remote electronic transmission, provided that if such
  163  motor vehicle was sold or leased as new by a motor vehicle
  164  dealer in this state within the 3-year period preceding such
  165  remote electronic transmission, the applicant or licensee must
  166  pay such motor vehicle dealer a minimum of 8 percent of the
  167  payment received by the applicant, licensee, or common entity
  168  from the sale of the feature or improvement. As used in this
  169  subsection, the term “feature or improvement” includes the
  170  activation or use of motor vehicle components or hardware, but
  171  does not include services that require the transmission of data
  172  or information to or from the motor vehicle while the service is
  173  being used. Payments required under this subsection shall be
  174  made within 30 days after the date of sale of the feature or
  175  improvement. This subsection section does not apply to sales by
  176  the
  177  
  178  ================= T I T L E  A M E N D M E N T ================
  179  And the title is amended as follows:
  180         Delete lines 428 - 444
  181  and insert:
  182         applicability; requiring certain payments to be made
  183         within a certain timeframe; amending s. 320.642, F.S.;
  184         conforming cross-references; amending s. 320.645,
  185         F.S.; revising provisions prohibiting a manufacturer,
  186         a distributor, or an importer from owning, operating,
  187         or controlling a motor vehicle dealership in this
  188         state; specifying when certain licenses may be and are
  189         prohibited from being issued; revising exceptions to
  190         certain prohibitions on licensees; providing
  191         applicability; making technical changes; deleting the
  192         definition of the term “independent person”;
  193         conforming cross-references; amending s. 320.67, F.S.;
  194         requiring the Department of Highway Safety and Motor
  195         Vehicles to conduct an inquiry relating to certain
  196         written complaints; providing purposes of the
  197         department’s use of a subpoena; authorizing the
  198         department to allow a written response to the
  199         complaint; requiring the department to commence the
  200         inquiry within a certain