Florida Senate - 2015 COMMITTEE AMENDMENT
Bill No. CS for SB 1048
Ì4858145Î485814
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/06/2015 .
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Appropriations Subcommittee on Transportation, Tourism, and
Economic Development (Diaz de la Portilla) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Present paragraph (h) of subsection (10) of
6 section 320.64, Florida Statutes, is redesignated as paragraph
7 (i), a new paragraph (h) is added to that subsection, present
8 paragraph (h) of subsection (10) and subsections (25) and (26)
9 of that section are amended, and subsections (39), (40), and
10 (41) are added to that section, to read:
11 320.64 Denial, suspension, or revocation of license;
12 grounds.—A license of a licensee under s. 320.61 may be denied,
13 suspended, or revoked within the entire state or at any specific
14 location or locations within the state at which the applicant or
15 licensee engages or proposes to engage in business, upon proof
16 that the section was violated with sufficient frequency to
17 establish a pattern of wrongdoing, and a licensee or applicant
18 shall be liable for claims and remedies provided in ss. 320.695
19 and 320.697 for any violation of any of the following
20 provisions. A licensee is prohibited from committing the
21 following acts:
22 (10)
23 (h) If an applicant or licensee offers any bonus,
24 incentive, rebate, or other program, standard, or policy that is
25 available to a motor vehicle dealer in this state and that is
26 premised, wholly or in part, on dealer facility improvements,
27 renovations, expansion, remodeling, alterations, or installation
28 of signs or other image elements, a motor vehicle dealer who
29 completes an approved facility in reliance upon such offer shall
30 be deemed to be in full compliance with all of the applicant’s
31 or licensee’s requirements related to facility, sign, and image
32 for the duration of a 10-year period following such completion.
33 If, during the 10-year period, the applicant or licensee
34 establishes a program, standard, or policy that offers a new
35 bonus, incentive, rebate, or other benefit, a motor vehicle
36 dealer that completed an approved facility in reliance upon the
37 prior program, standard, or policy but does not comply with the
38 provisions related to facility, sign, or image under the new
39 program, standard, or policy, except as hereinafter provided,
40 may not be eligible for benefits under the provisions related to
41 facility, sign, or image of the new program, standard, or
42 policy, but shall remain entitled to all the benefits under the
43 older program, standard, or policy, plus any increase in the
44 benefits between the old and new programs, standards, or
45 policies during the remainder of the 10-year period. Nothing
46 contained in this subsection shall in any way obviate, affect,
47 or alter the provisions of subsection (38).
48 (i)(h) A violation of paragraphs (b)-(h) (b) through (g) is
49 not a violation of s. 320.70 and does not subject any licensee
50 to any criminal penalty under s. 320.70.
51 (25) The applicant or licensee has undertaken or engaged in
52 an audit of warranty, maintenance, and other service-related
53 payments or incentive payments, including payments to a motor
54 vehicle dealer under any licensee-issued program, policy, or
55 other benefit, which previously have been paid to a motor
56 vehicle dealer in violation of this section or has failed to
57 comply with any of its obligations under s. 320.696. An
58 applicant or licensee may reasonably and periodically audit a
59 motor vehicle dealer to determine the validity of paid claims as
60 provided in s. 320.696. Audits of warranty, maintenance, and
61 other service-related payments shall be performed by an
62 applicant or licensee only during the 12-month 1-year period
63 immediately following the date the claim was paid. Audits Audit
64 of incentive payments shall only be performed only during the
65 12-month for an 18-month period immediately following the date
66 the incentive was paid. As used in this section, the term
67 “incentive” includes any bonus, incentive, or other monetary or
68 nonmonetary thing of value. After such time periods have
69 elapsed, all warranty, maintenance, and other service-related
70 payments and incentive payments shall be deemed final and
71 incontrovertible for any reason notwithstanding any otherwise
72 applicable law, and the motor vehicle dealer shall not be
73 subject to any charge-back or repayment. An applicant or
74 licensee may deny a claim or, as a result of a timely conducted
75 audit, impose a charge-back against a motor vehicle dealer for
76 warranty, maintenance, or other service-related payments or
77 incentive payments only if the applicant or licensee can show
78 that the warranty, maintenance, or other service-related claim
79 or incentive claim was false or fraudulent or that the motor
80 vehicle dealer failed to substantially comply with the
81 reasonable written and uniformly applied procedures of the
82 applicant or licensee for such repairs or incentives, but only
83 for that portion of the claim so shown. Notwithstanding the
84 terms of any franchise agreement, guideline, program, policy, or
85 procedure, an applicant or licensee may deny or charge back only
86 that portion of a warranty, maintenance, or other service
87 related claim or incentive claim which the applicant or licensee
88 has proven to be false or fraudulent or for which the dealer
89 failed to substantially comply with the reasonable written and
90 uniformly applied procedures of the applicant or licensee for
91 such repairs or incentives, as set forth in this subsection. An
92 applicant or licensee may not charge back a motor vehicle dealer
93 back subsequent to the payment of a warranty, maintenance, or
94 service-related claim or incentive claim unless, within 30 days
95 after a timely conducted audit, a representative of the
96 applicant or licensee first meets in person, by telephone, or by
97 video teleconference with an officer or employee of the dealer
98 designated by the motor vehicle dealer. At such meeting the
99 applicant or licensee must provide a detailed explanation, with
100 supporting documentation, as to the basis for each of the claims
101 for which the applicant or licensee proposed a charge-back to
102 the dealer and a written statement containing the basis upon
103 which the motor vehicle dealer was selected for audit or review.
104 Thereafter, the applicant or licensee must provide the motor
105 vehicle dealer’s representative a reasonable period after the
106 meeting within which to respond to the proposed charge-backs,
107 with such period to be commensurate with the volume of claims
108 under consideration, but in no case less than 45 days after the
109 meeting. The applicant or licensee is prohibited from changing
110 or altering the basis for each of the proposed charge-backs as
111 presented to the motor vehicle dealer’s representative following
112 the conclusion of the audit unless the applicant or licensee
113 receives new information affecting the basis for one or more
114 charge-backs and that new information is received within 30 days
115 after the conclusion of the timely conducted audit. If the
116 applicant or licensee claims the existence of new information,
117 the dealer must be given the same right to a meeting and right
118 to respond as when the charge-back was originally presented.
119 After all internal dispute resolution processes provided through
120 the applicant or licensee have been completed, the applicant or
121 licensee shall give written notice to the motor vehicle dealer
122 of the final amount of its proposed charge-back. If the dealer
123 disputes that amount, the dealer may file a protest with the
124 department within 30 days after receipt of the notice. If a
125 protest is timely filed, the department shall notify the
126 applicant or licensee of the filing of the protest, and the
127 applicant or licensee may not take any action to recover the
128 amount of the proposed charge-back until the department renders
129 a final determination, which is not subject to further appeal,
130 that the charge-back is in compliance with the provisions of
131 this section. In any hearing pursuant to this subsection, the
132 applicant or licensee has the burden of proof that its audit and
133 resulting charge-back are in compliance with this subsection.
134 (26) Notwithstanding the terms of any franchise agreement,
135 including any licensee’s program, policy, or procedure, the
136 applicant or licensee has refused to allocate, sell, or deliver
137 motor vehicles; charged back or withheld payments or other
138 things of value for which the dealer is otherwise eligible under
139 a sales promotion, program, or contest; prevented a motor
140 vehicle dealer from participating in any promotion, program, or
141 contest; or has taken or threatened to take any adverse action
142 against a dealer, including charge-backs, reducing vehicle
143 allocations, or terminating or threatening to terminate a
144 franchise because the dealer sold or leased a motor vehicle to a
145 customer who exported the vehicle to a foreign country or who
146 resold the vehicle, unless the licensee proves that the dealer
147 knew or reasonably should have known that the customer intended
148 to export or resell the motor vehicle. There is a rebuttable
149 presumption that the dealer neither knew nor reasonably should
150 have known of its customer’s intent to export or resell the
151 vehicle if the vehicle is titled or registered in any state in
152 this country. A licensee may not take any action against a motor
153 vehicle dealer, including reducing its allocations or supply of
154 motor vehicles to the dealer, or charging back a dealer for an
155 incentive payment previously paid, unless the licensee first
156 meets in person, by telephone, or video conference with an
157 officer or other designated employee of the dealer. At such
158 meeting, the licensee must provide a detailed explanation, with
159 supporting documentation, as to the basis for its claim that the
160 dealer knew or reasonably should have known of the customer’s
161 intent to export or resell the motor vehicle. Thereafter, the
162 motor vehicle dealer shall have a reasonable period,
163 commensurate with the number of motor vehicles at issue, but not
164 less than 15 days, to respond to the licensee’s claims. If,
165 following the dealer’s response and completion of all internal
166 dispute resolution processes provided through the applicant or
167 licensee, the dispute remains unresolved, the dealer may file a
168 protest with the department within 30 days after receipt of a
169 written notice from the licensee that it still intends to take
170 adverse action against the dealer with respect to the motor
171 vehicles still at issue. If a protest is timely filed, the
172 department shall notify the applicant or licensee of the filing
173 of the protest, and the applicant or licensee may not take any
174 action adverse to the dealer until the department renders a
175 final determination, which is not subject to further appeal,
176 that the licensee’s proposed action is in compliance with the
177 provisions of this subsection. In any hearing pursuant to this
178 subsection, the applicant or licensee has the burden of proof on
179 all issues raised by this subsection. An applicant or licensee
180 may not take any adverse action against a motor vehicle dealer
181 because the dealer sold or leased a motor vehicle to a customer
182 who exported the vehicle to a foreign country or who resold the
183 vehicle unless the applicant or licensee provides written
184 notification to the motor vehicle dealer of such resale or
185 export within 12 months after the date the dealer sold or leased
186 the vehicle to the customer.
187 (39) Notwithstanding the terms of any agreement, program,
188 incentive, bonus, policy, or rule, an applicant or licensee
189 fails to make any payment pursuant to any of the foregoing for
190 any temporary replacement motor vehicle loaned, rented, or
191 provided by a motor vehicle dealer to or for its service or
192 repair customers, even if the temporary replacement motor
193 vehicle has been leased, rented, titled, or registered to the
194 motor vehicle dealer’s rental or leasing division or an entity
195 that is owned or controlled by the motor vehicle dealer,
196 provided that the motor vehicle dealer or its rental or leasing
197 division or entity complies with the written and uniformly
198 enforced vehicle eligibility, use, and reporting requirements
199 specified by the applicant or licensee in its agreement,
200 program, policy, bonus, incentive or rule relating to loaner
201 vehicles.
202 (40) Notwithstanding the terms of any franchise agreement,
203 the applicant or licensee has required or coerced, or attempted
204 to require or coerce, a motor vehicle dealer to purchase goods
205 or services from a vendor selected, identified, or designated by
206 the applicant or licensee, or one of its parents, subsidiaries,
207 divisions, or affiliates, by agreement, standard, policy,
208 program, incentive provision, or otherwise, without making
209 available to the motor vehicle dealer the option to obtain the
210 goods or services of substantially similar design and quality
211 from a vendor chosen by the motor vehicle dealer. If the motor
212 vehicle dealer exercises such option, the dealer must provide
213 written notice of its desire to use the alternative goods or
214 services to the applicant or licensee, along with samples or
215 clear descriptions of the alternative goods or services that the
216 dealer desires to use. The licensee or applicant shall have the
217 opportunity to evaluate the alternative goods or services for up
218 to 30 days to determine whether it will provide a written
219 approval to the motor vehicle dealer to use said alternative
220 goods or services. Approval may not be unreasonably withheld by
221 the applicant or licensee. If the motor vehicle dealer does not
222 receive a response from the applicant or licensee within 30
223 days, approval to use the alternative goods or services shall be
224 deemed granted. If a dealer using alternative goods or services
225 complies with the terms of this subsection and has received
226 approval from the licensee or applicant, the dealer shall not be
227 ineligible for all benefits described in the agreement,
228 standard, policy, program, incentive provision, or otherwise
229 solely for having used such alternative goods or services. As
230 used in this subsection, the term “goods or services” is limited
231 to such goods and services used to construct or renovate
232 dealership facilities, or furniture and fixtures at the
233 dealership facilities. The term does not include:
234 (a) Any intellectual property of the applicant or licensee,
235 including signage incorporating the applicant’s or licensee’s
236 trademark or copyright, or facility or building materials, to
237 the extent that the applicant’s or licensee’s trademark is
238 displayed thereon;
239 (b) Any special tool and training as required by the
240 licensee or applicant;
241 (c) Any part to be used in repairs under warranty
242 obligations of an applicant or licensee;
243 (d) Any good or service paid for entirely by the applicant
244 or licensee; or
245 (e) Any applicant’s or licensee’s design or architectural
246 review service.
247 (41)(a) The applicant or licensee, by agreement, policy,
248 program, standard, or otherwise, requires a motor vehicle
249 dealer, directly or indirectly, to advance or pay for, or to
250 reimburse the applicant or licensee for, any costs related to
251 the creation, development, showing, placement, or publication in
252 any media of any advertisement for a motor vehicle; requires a
253 motor vehicle dealer to participate in, contribute to, affiliate
254 with, or join a dealer advertising or marketing group, fund,
255 pool, association, or other entity; or takes or threatens to
256 take any adverse action against a motor vehicle dealer that
257 refuses to join or participate in such group, fund, pool,
258 association, or other entity. As used in this subsection, the
259 term “adverse action” includes, but is not limited to, reducing
260 allocations, charging fees for a licensee’s or dealer’s
261 advertising or a marketing group’s advertising or marketing,
262 terminating or threatening to terminate the motor vehicle
263 dealer’s franchise agreement, reducing any incentive for which
264 the motor vehicle dealer is eligible, or engaging in any action
265 that fails to take into account the equities of the motor
266 vehicle dealer.
267 (b) An applicant or licensee requires a dealer to
268 participate in, or precludes a number of its motor vehicle
269 dealers in a designated market area from establishing, a
270 voluntary motor vehicle dealer advertising or marketing group,
271 fund, pool, association, or other entity. Except as provided in
272 an agreement, if a motor vehicle dealer chooses to form an
273 independent advertising or marketing group, the applicant or
274 licensee is not required to fund such group.
275 (c) This subsection may not prohibit an applicant or
276 licensee from offering advertising or promotional materials to a
277 motor vehicle dealer for a fee or charge, as long as the use of
278 such advertising or promotional materials is voluntary for the
279 motor vehicle dealer.
280
281 A motor vehicle dealer who can demonstrate that a violation of,
282 or failure to comply with, any of the preceding provisions by an
283 applicant or licensee will or can adversely and pecuniarily
284 affect the complaining dealer, shall be entitled to pursue all
285 of the remedies, procedures, and rights of recovery available
286 under ss. 320.695 and 320.697.
287 Section 2. This act applies to all franchise agreements
288 entered into, renewed, or amended after October 1, 1988, except
289 and to the extent that such application impairs valid
290 contractual agreements in violation of the State Constitution or
291 the United States Constitution.
292 Section 3. This act shall take effect upon becoming a law.
293
294 ================= T I T L E A M E N D M E N T ================
295 And the title is amended as follows:
296 Delete everything before the enacting clause
297 and insert:
298 A bill to be entitled
299 An act relating to motor vehicle manufacturer
300 licenses; amending s. 320.64, F.S.; providing that a
301 motor vehicle dealer who received approval of a
302 facility from an applicant or licensee within a
303 specified timeframe is deemed to be in full compliance
304 with facility-related requirements; providing that
305 such motor vehicle dealer are entitled to certain
306 benefits under certain circumstances; providing
307 applicability; conforming a cross-reference; revising
308 provisions related to an applicant or licensee who has
309 undertaken or engaged in an audit of service-related
310 payments or incentive payments; limiting the timeframe
311 for the performance of such audits; defining the term
312 “incentive”; authorizing an applicant or licensee to
313 deny or charge back only the portion of a service
314 related claim or incentive claim which the applicant
315 or licensee has proven to be false or fraudulent or
316 for which the dealer failed to substantially comply
317 with certain procedures; prohibiting an applicant or
318 licensee from taking adverse action against a motor
319 vehicle dealer under certain circumstances;
320 prohibiting an applicant or licensee from failing to
321 make any payment due a motor vehicle dealer that
322 substantially complies with the terms of a certain
323 contract between the two parties regarding
324 reimbursement for temporary replacement vehicles under
325 certain circumstances; authorizing a motor vehicle
326 dealer to purchase goods or services from a vendor
327 chosen by the motor vehicle dealer, subject to certain
328 requirements; defining the term “goods or services”;
329 prohibiting an applicant or licensee from requiring a
330 motor vehicle dealer to pay for certain advertising or
331 marketing, or to participate in or affiliate with a
332 dealer advertising or marketing entity; prohibiting an
333 applicant or licensee from taking or threatening to
334 take any adverse action against a motor vehicle dealer
335 who refuses to join or participate in such entity;
336 defining the term “adverse action”; providing that an
337 applicant or licensee may not require a dealer to
338 participate in, or may not preclude only a number of
339 its motor vehicle dealers in a designated market area
340 from establishing, a voluntary motor vehicle dealer
341 advertising or marketing entity; providing that an
342 applicant or licensee is not required to fund such an
343 entity under certain circumstances; providing for
344 retroactive applicability under certain circumstances;
345 providing an effective date.