Florida Senate - 2018 COMMITTEE AMENDMENT
Bill No. CS for SB 616
Ì200912sÎ200912
LEGISLATIVE ACTION
Senate . House
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The Committee on Commerce and Tourism (Passidomo) recommended
the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraphs (c) and (d) of subsection (1) and
6 subsections (2), (3), and (4) of section 320.27, Florida
7 Statutes, are amended to read:
8 320.27 Motor vehicle dealers.—
9 (1) DEFINITIONS.—The following words, terms, and phrases
10 when used in this section have the meanings respectively
11 ascribed to them in this subsection, except where the context
12 clearly indicates a different meaning:
13 (c) “Motor vehicle dealer” means any person engaged in the
14 business of buying, selling, or leasing dealing in motor
15 vehicles or offering or displaying motor vehicles for sale or
16 lease at wholesale, excluding sales from a manufacturer, factory
17 branch, distributor, or importer licensed pursuant to s. 320.61
18 to a franchised motor vehicle dealer licensed pursuant to this
19 section, or at retail, or who may service and repair motor
20 vehicles pursuant to an agreement as defined in s. 320.60(1).
21 Any person who buys, sells, or leases deals in three or more
22 motor vehicles in any 12-month period or who offers or displays
23 for sale or lease three or more motor vehicles in any 12-month
24 period is shall be prima facie presumed to be a motor vehicle
25 dealer. Any person who engages in any of the following
26 activities is deemed to be a motor vehicle dealer: possessing,
27 storing, or displaying motor vehicles that such person offers
28 for retail sale or lease; advertising motor vehicles held in
29 inventory which such person offers for retail sale or lease;
30 compensating customers for vehicles at wholesale or retail, also
31 known as trade-ins; negotiating with customers regarding the
32 terms of sale or lease for a motor vehicle; providing test
33 drives of motor vehicles that such person offers for retail sale
34 or lease; delivering or arranging for the delivery of a motor
35 vehicle in conjunction with the retail sale or lease of the
36 motor vehicle by such person engaged in such business. The terms
37 “selling” and “sale” include lease-purchase transactions. A
38 motor vehicle dealer may, at retail or wholesale, sell a
39 recreational vehicle as described in s. 320.01(1)(b)1.-6. and
40 8., acquired in exchange for the sale or lease of a motor
41 vehicle, provided such acquisition is incidental to the
42 principal business of being a motor vehicle dealer. However, a
43 motor vehicle dealer may not buy a recreational vehicle for the
44 purpose of resale unless licensed as a recreational vehicle
45 dealer pursuant to s. 320.771. A motor vehicle dealer may apply
46 for a certificate of title to a motor vehicle required to be
47 registered under s. 320.08(2)(b), (c), and (d), using a
48 manufacturer’s statement of origin as permitted by s. 319.23(1),
49 only if such dealer is authorized by a franchised agreement as
50 defined in s. 320.60(1), to buy, sell, or deal in such vehicle
51 and is authorized by such agreement to perform delivery and
52 preparation obligations and warranty defect adjustments on the
53 motor vehicle; provided this limitation shall not apply to
54 recreational vehicles, van conversions, or any other motor
55 vehicle manufactured on a truck chassis. The transfer of a motor
56 vehicle by a dealer not meeting these qualifications shall be
57 titled as a used vehicle. The classifications of motor vehicle
58 dealers are defined as follows:
59 1. “Franchised motor vehicle dealer” means any person who
60 engages in the business of repairing, servicing, buying,
61 selling, or leasing dealing in motor vehicles pursuant to an
62 agreement as defined in s. 320.60(1). A motor vehicle dealer may
63 apply for a certificate of title to a motor vehicle required to
64 be registered under s. 320.08(2)(b), (c), and (d) or s.
65 320.08(3)(a), (b), or (c), using a manufacturer’s statement of
66 origin as permitted by s. 319.23(1), only if such dealer is
67 authorized by a franchise agreement as defined in s. 320.60(1)
68 to buy, sell, or lease such vehicles and to perform delivery and
69 preparation obligations and warranty defect adjustments on the
70 motor vehicle. This limitation does not apply to recreational
71 vehicles, van conversions, or any other motor vehicle
72 manufactured on a truck chassis. A motor vehicle dealer may not
73 transfer a manufacturer’s statement of origin for a motor
74 vehicle to any person who intends to sell such motor vehicle in
75 this state unless such person is a licensed motor vehicle dealer
76 authorized by a franchise agreement to buy, sell, or lease such
77 vehicles.
78 2. “Independent motor vehicle dealer” means any person
79 other than a franchised or wholesale motor vehicle dealer who
80 engages in the business of buying, selling, or leasing dealing
81 in motor vehicles, and who may service and repair motor
82 vehicles.
83 3. “Wholesale motor vehicle dealer” means any person who
84 engages exclusively in the business of buying or, selling, or
85 dealing in motor vehicles at wholesale or with motor vehicle
86 auctions. Such person shall be licensed to do business in this
87 state, shall not sell or auction a vehicle to any person who is
88 not a licensed dealer, and shall not have the privilege of the
89 use of dealer license plates. Any person who buys, sells, or
90 deals in motor vehicles at wholesale or with motor vehicle
91 auctions on behalf of a licensed motor vehicle dealer and as a
92 bona fide employee of such licensed motor vehicle dealer is not
93 required to be licensed as a wholesale motor vehicle dealer. In
94 such cases it shall be prima facie presumed that a bona fide
95 employer-employee relationship exists. A wholesale motor vehicle
96 dealer shall be exempt from the display provisions of this
97 section but shall maintain an office wherein records are kept in
98 order that those records may be inspected.
99 4. “Motor vehicle auction” means any person offering motor
100 vehicles or recreational vehicles for sale to the highest bidder
101 where buyers are licensed motor vehicle dealers. Such person
102 shall not sell a vehicle to anyone other than a licensed motor
103 vehicle dealer.
104 5. “Salvage motor vehicle dealer” means any person who
105 engages in the business of acquiring salvaged or wrecked motor
106 vehicles for the purpose of reselling them and their parts.
107
108 Notwithstanding anything in this subsection to the contrary, the
109 term “motor vehicle dealer” does not include persons not engaged
110 in the purchase, or sale, or lease of motor vehicles as a
111 business who are disposing of vehicles acquired for their own
112 use or for use in their business or acquired by foreclosure or
113 by operation of law, provided such vehicles are acquired and
114 sold in good faith and not for the purpose of avoiding the
115 provisions of this law; persons engaged in the business of
116 manufacturing, selling, or offering or displaying for sale or
117 lease at wholesale or retail no more than 25 trailers in a 12
118 month period; public officers while performing their official
119 duties; receivers; trustees, administrators, executors,
120 guardians, or other persons appointed by, or acting under the
121 judgment or order of, any court; banks, finance companies, or
122 other loan agencies that acquire motor vehicles as an incident
123 to their regular business; motor vehicle brokers; persons whose
124 sole dealing in motor vehicles is owning a publication in which,
125 or hosting a website on which, licensed motor vehicle dealers
126 display vehicles for sale; persons primarily engaged in the
127 business of the short-term rental of motor vehicles, which
128 rental term may not exceed 12 months, who are not involved in
129 the retail sale or lease of motor vehicles; and motor vehicle
130 rental and leasing companies that sell motor vehicles only to
131 motor vehicle dealers licensed under this section. Vehicles
132 owned under circumstances described in this paragraph may be
133 disposed of at retail, wholesale, or auction, unless otherwise
134 restricted. A manufacturer of fire trucks, ambulances, or school
135 buses may sell such vehicles directly to governmental agencies
136 or to persons who contract to perform or provide firefighting,
137 ambulance, or school transportation services exclusively to
138 governmental agencies without processing such sales through
139 dealers if such fire trucks, ambulances, school buses, or
140 similar vehicles are not presently available through motor
141 vehicle dealers licensed by the department.
142 (d) “Motor vehicle broker” means any person engaged in the
143 business of, or who holds himself or herself out through
144 solicitation, advertisement, or other means as being in the
145 business of, assisting offering to procure or procuring motor
146 vehicles for the general public in purchasing or leasing a motor
147 vehicle from a licensed motor vehicle dealer. A motor vehicle
148 broker may, or who holds himself or herself out through
149 solicitation, advertisement, or otherwise as one who offers to
150 procure or procures motor vehicles for the general public, and
151 who does not store, display, or take ownership of any vehicles
152 for the purpose of selling such vehicles. Any advertisement or
153 solicitation by a motor vehicle broker must include conspicuous
154 notice that the broker is receiving a fee and must clearly state
155 that the broker is not a licensed motor vehicle dealer. A
156 licensed manufacturer, distributor, or importer is not
157 considered a motor vehicle broker.
158 (2) LICENSE REQUIRED.—No person shall engage in business
159 as, serve in the capacity of, or act as a motor vehicle dealer
160 or motor vehicle broker in this state without first obtaining a
161 license therefor in the appropriate classification as provided
162 in this section. With the exception of transactions with motor
163 vehicle auctions, no person other than a licensed motor vehicle
164 dealer may advertise for sale or lease any motor vehicle
165 belonging to another party unless as a direct result of a bona
166 fide legal proceeding, court order, settlement of an estate, or
167 by contract with a motor vehicle dealer, or by operation of law.
168 However, owners of motor vehicles titled in their names may
169 advertise and offer motor vehicles for sale on their own
170 behalves, provided such vehicles are acquired and sold in good
171 faith and not for the purpose of avoiding the requirements of
172 this section behalf. It shall be unlawful for a licensed motor
173 vehicle dealer to allow any person other than its a bona fide
174 employee to use the motor vehicle dealer license for the purpose
175 of acting in the capacity of or conducting motor vehicle sales
176 or lease transactions as a motor vehicle dealer. Any person
177 acting selling or offering a motor vehicle for sale in violation
178 of the licensing requirements of this subsection, or who
179 misrepresents to any person his or her its relationship with any
180 manufacturer, importer, or distributor, or motor vehicle dealer,
181 in addition to the penalties provided herein, shall be deemed to
182 have committed guilty of an unfair and deceptive trade practice
183 as defined in violation of part II of chapter 501 and shall be
184 subject to the provisions of subsections (8) and (9).
185 (3) APPLICATION AND FEE.—The application for the license
186 shall be in such form as may be prescribed by the department and
187 shall be subject to such rules with respect thereto as may be so
188 prescribed by it. Such application shall be verified by oath or
189 affirmation and shall contain a full statement of the name and
190 birth date of the person or persons applying therefor; the name
191 of the firm or copartnership, with the names and places of
192 residence of all members thereof, if such applicant is a firm or
193 copartnership; the names and places of residence of the
194 principal officers, if the applicant is a body corporate or
195 other artificial body; the name of the state under whose laws
196 the corporation is organized; the present and former place or
197 places of residence of the applicant; and prior business in
198 which the applicant has been engaged and the location thereof.
199 Such application shall describe the exact location of the place
200 of business and shall state whether the place of business is
201 owned by the applicant and when acquired, or, if leased, a true
202 copy of the lease shall be attached to the application. The
203 applicant shall certify that the location provides an adequately
204 equipped office and is not a residence; that the location
205 affords sufficient unoccupied space upon and within which
206 adequately to store all motor vehicles offered and displayed for
207 sale; and that the location is a suitable place where the
208 applicant can in good faith carry on such business and keep and
209 maintain books, records, and files necessary to conduct such
210 business, which shall be available at all reasonable hours to
211 inspection by the department or any of its inspectors or other
212 employees. The applicant shall certify that the business of a
213 motor vehicle dealer is the principal business which shall be
214 conducted at that location. The application shall contain a
215 statement that the applicant is either franchised by a
216 manufacturer of motor vehicles, in which case the name of each
217 motor vehicle that the applicant is franchised to sell shall be
218 included; is, or an independent (nonfranchised) motor vehicle
219 dealer; or is a motor vehicle broker. The application shall
220 contain other relevant information as may be required by the
221 department, including evidence that the applicant is insured
222 under a garage liability insurance policy or a general liability
223 insurance policy coupled with a business automobile policy,
224 which shall include, at a minimum, $25,000 combined single-limit
225 liability coverage including bodily injury and property damage
226 protection and $10,000 personal injury protection. However, a
227 salvage motor vehicle dealer as defined in subparagraph (1)(c)5.
228 is exempt from the requirements for garage liability insurance
229 and personal injury protection insurance on those vehicles that
230 cannot be legally operated on roads, highways, or streets in
231 this state. Franchise dealers must submit a garage liability
232 insurance policy, and all other dealers must submit a garage
233 liability insurance policy or a general liability insurance
234 policy coupled with a business automobile policy. Such policy
235 shall be for the license period, and evidence of a new or
236 continued policy shall be delivered to the department at the
237 beginning of each license period. Upon making initial
238 application, the applicant shall pay to the department a fee of
239 $300 in addition to any other fees required by law. Applicants
240 may choose to extend the licensure period for 1 additional year
241 for a total of 2 years. An initial applicant shall pay to the
242 department a fee of $300 for the first year and $75 for the
243 second year, in addition to any other fees required by law. An
244 applicant for renewal shall pay to the department $75 for a 1
245 year renewal or $150 for a 2-year renewal, in addition to any
246 other fees required by law. Upon making an application for a
247 change of location, the person shall pay a fee of $50 in
248 addition to any other fees now required by law. The department
249 shall, in the case of every application for initial licensure,
250 verify whether certain facts set forth in the application are
251 true. Each applicant, general partner in the case of a
252 partnership, or corporate officer and director in the case of a
253 corporate applicant, must file a set of fingerprints with the
254 department for the purpose of determining any prior criminal
255 record or any outstanding warrants. The department shall submit
256 the fingerprints to the Department of Law Enforcement for state
257 processing and forwarding to the Federal Bureau of Investigation
258 for federal processing. The actual cost of state and federal
259 processing shall be borne by the applicant and is in addition to
260 the fee for licensure. The department may issue a license to an
261 applicant pending the results of the fingerprint investigation,
262 which license is fully revocable if the department subsequently
263 determines that any facts set forth in the application are not
264 true or correctly represented.
265 (4) LICENSE CERTIFICATE.—
266 (a) A license certificate shall be issued by the department
267 in accordance with such application when the application is
268 regular in form and in compliance with the provisions of this
269 section. The license certificate may be in the form of a
270 document or a computerized card as determined by the department.
271 The actual cost of each original, additional, or replacement
272 computerized card shall be borne by the licensee and is in
273 addition to the fee for licensure. Such license, when so issued,
274 entitles the licensee to carry on and conduct the business of a
275 motor vehicle dealer or motor vehicle broker. Each license
276 issued to a franchise motor vehicle dealer or motor vehicle
277 broker expires on December 31 of the year of its expiration
278 unless revoked or suspended before prior to that date. Each
279 license issued to an independent or wholesale dealer or auction
280 expires on April 30 of the year of its expiration unless revoked
281 or suspended prior to that date. At least 60 days before the
282 license expiration date, the department shall deliver or mail to
283 each licensee the necessary renewal forms along with a statement
284 that the licensee is required to complete any applicable
285 continuing education or industry certification requirements.
286 Each independent dealer shall certify that the dealer (owner,
287 partner, officer, or director of the licensee, or a full-time
288 employee of the licensee that holds a responsible management
289 level position) has completed 8 hours of continuing education
290 prior to filing the renewal forms with the department. Such
291 certification shall be filed once every 2 years. The continuing
292 education shall include at least 2 hours of legal or legislative
293 issues, 1 hour of department issues, and 5 hours of relevant
294 motor vehicle industry topics. Continuing education shall be
295 provided by dealer schools licensed under paragraph (b) either
296 in a classroom setting or by correspondence. Such schools shall
297 provide certificates of completion to the department and the
298 customer which shall be filed with the license renewal form, and
299 such schools may charge a fee for providing continuing
300 education. Any licensee who does not file his or her application
301 and fees and any other requisite documents, as required by law,
302 with the department at least 30 days prior to the license
303 expiration date shall cease to engage in business as a motor
304 vehicle dealer on the license expiration date. A renewal filed
305 with the department within 45 days after the expiration date
306 shall be accompanied by a delinquent fee of $100. Thereafter, a
307 new application is required, accompanied by the initial license
308 fee. A license certificate duly issued by the department may be
309 modified by endorsement to show a change in the name of the
310 licensee, provided, as shown by affidavit of the licensee, the
311 majority ownership interest of the licensee has not changed or
312 the name of the person appearing as franchisee on the sales and
313 service agreement has not changed. Modification of a license
314 certificate to show any name change as herein provided shall not
315 require initial licensure or reissuance of dealer tags; however,
316 any dealer obtaining a name change shall transact all business
317 in and be properly identified by that name. All documents
318 relative to licensure shall reflect the new name. In the case of
319 a franchise dealer, the name change shall be approved by the
320 manufacturer, distributor, or importer. A licensee applying for
321 a name change endorsement shall pay a fee of $25 which fee shall
322 apply to the change in the name of a main location and all
323 additional locations licensed under the provisions of subsection
324 (5). Each initial license application received by the department
325 shall be accompanied by verification that, within the preceding
326 6 months, the applicant, or one or more of his or her designated
327 employees, has attended a training and information seminar
328 conducted by a licensed motor vehicle dealer training school.
329 Any applicant for a new franchised motor vehicle dealer license
330 who has held a valid franchised motor vehicle dealer license
331 continuously for the past 2 years and who remains in good
332 standing with the department is exempt from the prelicensing
333 training requirement. Such seminar shall include, but is not
334 limited to, statutory dealer requirements, which requirements
335 include required bookkeeping and recordkeeping procedures,
336 requirements for the collection of sales and use taxes, and such
337 other information that in the opinion of the department will
338 promote good business practices. No seminar may exceed 8 hours
339 in length.
340 (b) Each initial license application received by the
341 department for licensure under subparagraph (1)(c)2. shall be
342 accompanied by verification that, within the preceding 6 months,
343 the applicant (owner, partner, officer, or director of the
344 applicant, or a full-time employee of the applicant that holds a
345 responsible management-level position) has successfully
346 completed training conducted by a licensed motor vehicle dealer
347 training school. Such training must include training in titling
348 and registration of motor vehicles, laws relating to unfair and
349 deceptive trade practices, laws relating to financing with
350 regard to buy-here, pay-here operations, and such other
351 information that in the opinion of the department will promote
352 good business practices. Successful completion of this training
353 shall be determined by examination administered at the end of
354 the course and attendance of no less than 90 percent of the
355 total hours required by such school. Any applicant who had held
356 a valid motor vehicle dealer’s license continuously within the
357 past 2 years and who remains in good standing with the
358 department is exempt from the prelicensing requirements of this
359 section. The department shall have the authority to adopt any
360 rule necessary for establishing the training curriculum; length
361 of training, which shall not exceed 8 hours for required
362 department topics and shall not exceed an additional 24 hours
363 for topics related to other regulatory agencies’ instructor
364 qualifications; and any other requirements under this section.
365 The curriculum for other subjects shall be approved by any and
366 all other regulatory agencies having jurisdiction over specific
367 subject matters; however, the overall administration of the
368 licensing of these dealer schools and their instructors shall
369 remain with the department. Such schools are authorized to
370 charge a fee.
371 (c) Each application received by the department for renewal
372 of a license under subparagraph (1)(c)2. must certify that the
373 dealer (owner, partner, officer, or director of the licensee, or
374 a full-time employee of the licensee that holds a responsible
375 management-level position) has completed 8 hours of continuing
376 education prior to filing the renewal forms with the department.
377 Such certification must be filed once every 2 years. The
378 continuing education must include at least 2 hours of legal or
379 legislative issues, 1 hour of department issues, and 5 hours of
380 relevant motor vehicle industry topics. Continuing education
381 shall be provided by dealer schools licensed under paragraph (b)
382 either in a classroom setting or by correspondence. Such schools
383 shall provide certificates of completion to the department and
384 the customer which shall be filed with the license renewal form,
385 and such schools may charge a fee for providing continuing
386 education.
387 (d) Each application received by the department for renewal
388 of a license under subparagraph (1)(c)1. must certify that the
389 dealer (dealer operator, owner, partner, officer, director, or
390 general manager of the licensee) has completed 4 hours of
391 industry certification on legal and legislative issues each year
392 prior to filing the renewal forms with the department. Industry
393 certification shall be provided by a Florida-based, nonprofit,
394 dealer-owned, statewide industry association of franchised motor
395 vehicle dealers with state and federal compliance credentials
396 approved by the department, and shall be in a classroom setting
397 in convenient locations within the state. Such association shall
398 provide certificates of completion to the department and the
399 customer which shall be filed with the license renewal form. An
400 application for renewal of a license previously issued for 1
401 year must be accompanied by a certificate establishing
402 completion of 4 hours of industry certification during the prior
403 year. An application for renewal of a license previously issued
404 for 2 years must be accompanied by certificates establishing
405 completion of 8 hours of industry certification, except that
406 renewal of a 2 year license that expires on December 31, 2019,
407 must be accompanied by a certificate establishing completion of
408 4 hours of industry certification. An association may charge a
409 fee for providing the industry certification. In the case of
410 licensees belonging to a dealership group, the required industry
411 certification may be satisfied for all licensees in the
412 dealership group through completion of the industry
413 certification by a single designated owner, officer, director,
414 or manager of the dealership group. For purposes of this
415 section, a dealership group is two or more licensed franchised
416 motor vehicle dealers with common owners having legal or
417 equitable title of at least 80 percent of each dealer in the
418 group. A licensee who seeks to satisfy the required industry
419 certification through a dealership group must provide the
420 department with evidence of the required common ownership at the
421 time of filing the certificate of completion.
422 Section 2. This act shall take effect January 1, 2019.
423
424 ================= T I T L E A M E N D M E N T ================
425 And the title is amended as follows:
426 Delete everything before the enacting clause
427 and insert:
428 A bill to be entitled
429 An act relating to motor vehicle dealers; amending s.
430 320.27, F.S.; revising the definitions of the terms
431 “motor vehicle dealer,” “franchised motor vehicle
432 dealer,” “independent motor vehicle dealer,”
433 “wholesale motor vehicle dealer,” and “motor vehicle
434 broker”; prohibiting persons from engaging in business
435 as, serving in the capacity of, or acting as a motor
436 vehicle broker in this state without first obtaining a
437 certain license; adding an exception to the
438 prohibition on persons other than a licensed motor
439 vehicle dealer from advertising for sale or lease any
440 motor vehicle belonging to another party; authorizing
441 owners of motor vehicles titled in their names to
442 advertise and offer motor vehicles for sale on their
443 own behalves provided such vehicles are acquired and
444 sold in good faith and not for the purpose of avoiding
445 specified requirements; prohibiting a licensed motor
446 vehicle dealer from allowing any person other than its
447 bona fide employee to use its motor vehicle dealer
448 license for the purpose of acting in the capacity of
449 or conducting motor vehicle lease transactions as a
450 motor vehicle dealer; providing that any person acting
451 in violation of specified licensing requirements or
452 misrepresenting to any person his or her relationship
453 with any motor vehicle dealer is deemed to have
454 committed an unfair and deceptive trade practice in
455 violation of specified provisions; requiring an
456 application for a license to contain a statement that
457 the applicant is a motor vehicle broker under certain
458 circumstances; providing that a certain license
459 entitles a licensee to carry on and conduct the
460 business of a motor vehicle broker; providing that
461 each license issued to a motor vehicle broker expires
462 on a specified date of the year of its expiration
463 unless revoked or suspended before that date;
464 requiring, within a specified timeframe, the
465 Department of Highway Safety and Motor Vehicles to
466 deliver or mail to each licensee the necessary renewal
467 forms along with a statement that the licensee is
468 required to complete any applicable continuing
469 education or industry certification requirements;
470 deleting certain continuing education and
471 certification requirements; requiring applications
472 received by the department for renewal of independent
473 motor vehicle dealer licenses to certify that the
474 dealer has completed continuing education prior to
475 filing the renewal forms with the department, subject
476 to certain requirements; providing requirements for
477 continuing education and dealer schools; authorizing
478 such schools to charge a fee for providing continuing
479 education; requiring applications received by the
480 department for renewal of franchised motor vehicle
481 dealer licenses to certify that the dealer has
482 completed certain industry certification prior to
483 filing the renewal forms with the department, subject
484 to certain requirements; providing requirements for
485 industry certification and certain statewide industry
486 associations of franchised motor vehicle dealers;
487 authorizing an association to charge a fee for
488 providing the industry certification; authorizing
489 industry certification for licensees belonging to a
490 certain dealership group to be accomplished by a
491 certain designated person; requiring a licensee who
492 seeks to satisfy the certification through a
493 dealership group to provide the department with
494 certain evidence at the time of filing the certificate
495 of completion; providing an effective date.