Florida Senate - 2018 SB 616
By Senator Passidomo
28-00731-18 2018616__
1 A bill to be entitled
2 An act relating to motor vehicle dealers; amending s.
3 320.27, F.S.; revising the definitions of the terms
4 “motor vehicle dealer,” “franchised motor vehicle
5 dealer,” “independent motor vehicle dealer,”
6 “wholesale motor vehicle dealer,” and “motor vehicle
7 broker”; prohibiting persons from engaging in business
8 as, serving in the capacity of, or acting as a motor
9 vehicle broker in this state without first obtaining a
10 certain license; adding an exception to the
11 prohibition on persons other than a licensed motor
12 vehicle dealer from advertising for sale any motor
13 vehicle belonging to another party; requiring any
14 person acting in violation of specified licensing
15 requirements to be deemed to have committed an unfair
16 and deceptive trade practice in violation of specified
17 provisions; requiring an initial license certificate
18 to be issued by the Department of Highway Safety and
19 Motor Vehicles in accordance with an application when
20 the application is regular in form and in compliance
21 with specified provisions; providing for expiration of
22 a license issued to a motor vehicle broker; deleting
23 provisions relating to renewal forms, license
24 certificates, and initial license applications;
25 requiring each initial application for licensure as an
26 independent motor vehicle dealer received by the
27 department to be accompanied by certain verification
28 of training; providing training requirements;
29 providing an exemption; authorizing the department to
30 adopt certain rules; providing that the curriculum for
31 certain subjects is approved by any and all other
32 regulatory agencies having jurisdiction over the
33 specific subject matters; requiring that the overall
34 administration of the licensing of dealer schools and
35 their instructors remains with the department;
36 authorizing the schools to charge a fee for training;
37 requiring the department to deliver or mail to each
38 licensee the necessary renewal forms within a
39 specified period; requiring independent motor vehicle
40 dealers to complete certain certification relating to
41 continuing education, subject to certain requirements;
42 defining the term “dealer”; providing requirements for
43 continuing education; requiring dealer schools to
44 provide certificates of completion to the department
45 and customer; requiring franchised motor vehicle
46 dealers to complete certain industry certification,
47 subject to certain requirements; authorizing such
48 certification to be accomplished by one designated
49 employee under certain circumstances; providing
50 certification requirements; requiring designated
51 individuals to receive certificates of completion;
52 requiring licensees who do not file their application
53 and any other requisite documents with, and pay the
54 fees to, the department within a specified period to
55 cease engaging in business; providing fees for a
56 renewal or new application filed with the department
57 within specified periods after the expiration date;
58 authorizing a license certificate to be modified to
59 show a change in the name of the licensee, subject to
60 certain requirements; requiring a specified fee for
61 such modification; conforming provisions to changes
62 made by the act; providing an effective date.
63
64 Be It Enacted by the Legislature of the State of Florida:
65
66 Section 1. Paragraphs (c) and (d) of subsection (1) and
67 subsections (2), (3), and (4) of section 320.27, Florida
68 Statutes, are amended to read:
69 320.27 Motor vehicle dealers.—
70 (1) DEFINITIONS.—The following words, terms, and phrases
71 when used in this section have the meanings respectively
72 ascribed to them in this subsection, except where the context
73 clearly indicates a different meaning:
74 (c) “Motor vehicle dealer” means any person engaged in the
75 business of buying, selling, or leasing dealing in motor
76 vehicles or offering or displaying motor vehicles for sale at
77 wholesale or retail, or who may service and repair motor
78 vehicles pursuant to an agreement as defined in s. 320.60(1).
79 Any person who buys, sells, leases or deals in three or more
80 motor vehicles in any 12-month period or who offers or displays
81 for sale three or more motor vehicles in any 12-month period
82 shall be prima facie presumed to be engaged in such business a
83 motor vehicle dealer. Any person who engages in any of the
84 following activities shall be deemed to be a motor vehicle
85 dealer: possessing, storing, or displaying motor vehicles for
86 retail sale; advertising motor vehicles in inventory for retail
87 sale; compensating customers for vehicles at wholesale or
88 retail, also known as trade-ins; negotiating with customers
89 regarding the terms of sale for a motor vehicle; providing test
90 drives of motor vehicles offered for sale; delivering or
91 arranging for the delivery of a motor vehicle in conjunction
92 with the sale of the motor vehicle; and offering vehicle service
93 protection products or retail installment sales contracts to
94 buyers. The terms “selling” and “sale” include lease-purchase
95 transactions. A motor vehicle dealer may, at retail or
96 wholesale, sell a recreational vehicle as described in s.
97 320.01(1)(b)1.-6. and 8., acquired in exchange for the sale of a
98 motor vehicle, provided such acquisition is incidental to the
99 principal business of being a motor vehicle dealer. However, a
100 motor vehicle dealer may not buy a recreational vehicle for the
101 purpose of resale unless licensed as a recreational vehicle
102 dealer pursuant to s. 320.771. A motor vehicle dealer may apply
103 for a certificate of title to a motor vehicle required to be
104 registered under s. 320.08(2)(b), (c), and (d), using a
105 manufacturer’s statement of origin as permitted by s. 319.23(1),
106 only if such dealer is authorized by a franchised agreement as
107 defined in s. 320.60(1), to buy, sell, or deal in such vehicle
108 and is authorized by such agreement to perform delivery and
109 preparation obligations and warranty defect adjustments on the
110 motor vehicle; provided this limitation shall not apply to
111 recreational vehicles, van conversions, or any other motor
112 vehicle manufactured on a truck chassis. The transfer of a motor
113 vehicle by a dealer not meeting these qualifications shall be
114 titled as a used vehicle. The classifications of motor vehicle
115 dealers are defined as follows:
116 1. “Franchised motor vehicle dealer” means any person who
117 engages in the business of repairing, servicing, buying,
118 selling, or leasing dealing in motor vehicles pursuant to an
119 agreement as defined in s. 320.60(1). A motor vehicle dealer may
120 apply for a certificate of title to a motor vehicle required to
121 be registered under s. 320.08(2)(b), (c), or (d), using a
122 manufacturer’s statement of origin as required by s. 319.23(1),
123 only if such dealer is authorized by a franchise agreement as
124 defined in s. 320.60(1) to buy, sell, or deal in such vehicles
125 and is authorized by such agreement to perform delivery and
126 preparation obligations and warranty defect adjustments on the
127 motor vehicle. This limitation does not apply to recreational
128 vehicles, van conversions, or any other motor vehicle
129 manufactured on a truck chassis. If the transfer of a motor
130 vehicle by a dealer does not meet these qualifications, the
131 motor vehicle shall be titled as a used vehicle.
132 2. “Independent motor vehicle dealer” means any person
133 other than a franchised or wholesale motor vehicle dealer who
134 engages in the business of buying, and selling, or dealing in
135 motor vehicles, and who may service and repair motor vehicles.
136 3. “Wholesale motor vehicle dealer” means any person who
137 engages exclusively in the business of buying, and selling, or
138 dealing in motor vehicles at wholesale or with motor vehicle
139 auctions. Such person shall be licensed to do business in this
140 state, shall not sell or auction a vehicle to any person who is
141 not a licensed dealer, and shall not have the privilege of the
142 use of dealer license plates. Any person who buys, sells, or
143 deals in motor vehicles at wholesale or with motor vehicle
144 auctions on behalf of a licensed motor vehicle dealer and as a
145 bona fide employee of such licensed motor vehicle dealer is not
146 required to be licensed as a wholesale motor vehicle dealer. In
147 such cases it shall be prima facie presumed that a bona fide
148 employer-employee relationship exists. A wholesale motor vehicle
149 dealer shall be exempt from the display provisions of this
150 section but shall maintain an office wherein records are kept in
151 order that those records may be inspected.
152 4. “Motor vehicle auction” means any person offering motor
153 vehicles or recreational vehicles for sale to the highest bidder
154 where buyers are licensed motor vehicle dealers. Such person
155 shall not sell a vehicle to anyone other than a licensed motor
156 vehicle dealer.
157 5. “Salvage motor vehicle dealer” means any person who
158 engages in the business of acquiring salvaged or wrecked motor
159 vehicles for the purpose of reselling them and their parts.
160
161 Notwithstanding anything in this subsection to the contrary, the
162 term “motor vehicle dealer” does not include persons not engaged
163 in the purchase or sale of motor vehicles as a business who are
164 disposing of vehicles acquired for their own use or for use in
165 their business or acquired by foreclosure or by operation of
166 law, provided such vehicles are acquired and sold in good faith
167 and not for the purpose of avoiding the provisions of this law;
168 persons engaged in the business of manufacturing, selling, or
169 offering or displaying for sale at wholesale or retail no more
170 than 25 trailers in a 12-month period; public officers while
171 performing their official duties; receivers; trustees,
172 administrators, executors, guardians, or other persons appointed
173 by, or acting under the judgment or order of, any court; banks,
174 finance companies, or other loan agencies that acquire motor
175 vehicles as an incident to their regular business; motor vehicle
176 brokers; persons whose sole dealing in motor vehicles is owning
177 a publication in, or hosting a website on, which licensed motor
178 vehicle dealers display vehicles for sale; and motor vehicle
179 rental and leasing companies that sell motor vehicles only to
180 motor vehicle dealers licensed under this section. Vehicles
181 owned under circumstances described in this paragraph may be
182 disposed of at retail, wholesale, or auction, unless otherwise
183 restricted. A manufacturer of fire trucks, ambulances, or school
184 buses may sell such vehicles directly to governmental agencies
185 or to persons who contract to perform or provide firefighting,
186 ambulance, or school transportation services exclusively to
187 governmental agencies without processing such sales through
188 dealers if such fire trucks, ambulances, school buses, or
189 similar vehicles are not presently available through motor
190 vehicle dealers licensed by the department.
191 (d) “Motor vehicle broker” means any person engaged in the
192 business of, or who holds himself or herself out through
193 solicitation, advertisement, or other means as being in the
194 business of, assisting offering to procure or procuring motor
195 vehicles for the general public in purchasing or leasing a motor
196 vehicle from a licensed motor vehicle dealer, or who holds
197 himself or herself out through solicitation, advertisement, or
198 otherwise as one who offers to procure or procures motor
199 vehicles for the general public, and who does not store,
200 display, or take ownership of any vehicles for the purpose of
201 selling such vehicles. Any advertisement or solicitation by a
202 motor vehicle broker must include notice that the broker is
203 receiving a fee and must clearly state that the person is not a
204 licensed motor vehicle dealer.
205 (2) LICENSE REQUIRED.—No person shall engage in business
206 as, serve in the capacity of, or act as a motor vehicle dealer
207 or motor vehicle broker in this state without first obtaining a
208 license therefor in the appropriate classification as provided
209 in this section. With the exception of transactions with motor
210 vehicle auctions, no person other than a licensed motor vehicle
211 dealer may advertise for sale any motor vehicle belonging to
212 another party unless as a direct result of a bona fide legal
213 proceeding, court order, settlement of an estate, or by contract
214 with a motor vehicle dealer or operation of law. However, owners
215 of motor vehicles titled in their names may advertise and offer
216 vehicles for sale on their own behalf. It shall be unlawful for
217 a licensed motor vehicle dealer to allow any person other than a
218 bona fide employee to use the motor vehicle dealer license for
219 the purpose of acting in the capacity of or conducting motor
220 vehicle sales transactions as a motor vehicle dealer. Any person
221 acting selling or offering a motor vehicle for sale in violation
222 of the licensing requirements of this subsection, or who
223 misrepresents to any person its relationship with any
224 manufacturer, importer, or distributor, in addition to the
225 penalties provided herein, shall be deemed to have committed
226 guilty of an unfair and deceptive trade practice as defined in
227 violation of part II of chapter 501 and shall be subject to the
228 provisions of subsections (8) and (9).
229 (3) APPLICATION AND FEE.—The application for the license
230 shall be in such form as may be prescribed by the department and
231 shall be subject to such rules with respect thereto as may be so
232 prescribed by it. Such application shall be verified by oath or
233 affirmation and shall contain a full statement of the name and
234 birth date of the person or persons applying therefor; the name
235 of the firm or copartnership, with the names and places of
236 residence of all members thereof, if such applicant is a firm or
237 copartnership; the names and places of residence of the
238 principal officers, if the applicant is a body corporate or
239 other artificial body; the name of the state under whose laws
240 the corporation is organized; the present and former place or
241 places of residence of the applicant; and prior business in
242 which the applicant has been engaged and the location thereof.
243 Such application shall describe the exact location of the place
244 of business and shall state whether the place of business is
245 owned by the applicant and when acquired, or, if leased, a true
246 copy of the lease shall be attached to the application. The
247 applicant shall certify that the location provides an adequately
248 equipped office and is not a residence; that the location
249 affords sufficient unoccupied space upon and within which
250 adequately to store all motor vehicles offered and displayed for
251 sale; and that the location is a suitable place where the
252 applicant can in good faith carry on such business and keep and
253 maintain books, records, and files necessary to conduct such
254 business, which shall be available at all reasonable hours to
255 inspection by the department or any of its inspectors or other
256 employees. The applicant shall certify that the business of a
257 motor vehicle dealer is the principal business which shall be
258 conducted at that location. The application shall contain a
259 statement that the applicant is: either franchised by a
260 manufacturer of motor vehicles, in which case the name of each
261 motor vehicle that the applicant is franchised to sell shall be
262 included;, or an independent (nonfranchised) motor vehicle
263 dealer; or a motor vehicle broker. The application shall contain
264 other relevant information as may be required by the department,
265 including evidence that the applicant is insured under a garage
266 liability insurance policy or a general liability insurance
267 policy coupled with a business automobile policy, which shall
268 include, at a minimum, $25,000 combined single-limit liability
269 coverage including bodily injury and property damage protection
270 and $10,000 personal injury protection. However, a salvage motor
271 vehicle dealer as defined in subparagraph (1)(c)5. is exempt
272 from the requirements for garage liability insurance and
273 personal injury protection insurance on those vehicles that
274 cannot be legally operated on roads, highways, or streets in
275 this state. Franchise dealers must submit a garage liability
276 insurance policy, and all other dealers must submit a garage
277 liability insurance policy or a general liability insurance
278 policy coupled with a business automobile policy. Such policy
279 shall be for the license period, and evidence of a new or
280 continued policy shall be delivered to the department at the
281 beginning of each license period. Upon making initial
282 application, the applicant shall pay to the department a fee of
283 $300 in addition to any other fees required by law. Applicants
284 may choose to extend the licensure period for 1 additional year
285 for a total of 2 years. An initial applicant shall pay to the
286 department a fee of $300 for the first year and $75 for the
287 second year, in addition to any other fees required by law. An
288 applicant for renewal shall pay to the department $75 for a 1
289 year renewal or $150 for a 2-year renewal, in addition to any
290 other fees required by law. Upon making an application for a
291 change of location, the person shall pay a fee of $50 in
292 addition to any other fees now required by law. The department
293 shall, in the case of every application for initial licensure,
294 verify whether certain facts set forth in the application are
295 true. Each applicant, general partner in the case of a
296 partnership, or corporate officer and director in the case of a
297 corporate applicant, must file a set of fingerprints with the
298 department for the purpose of determining any prior criminal
299 record or any outstanding warrants. The department shall submit
300 the fingerprints to the Department of Law Enforcement for state
301 processing and forwarding to the Federal Bureau of Investigation
302 for federal processing. The actual cost of state and federal
303 processing shall be borne by the applicant and is in addition to
304 the fee for licensure. The department may issue a license to an
305 applicant pending the results of the fingerprint investigation,
306 which license is fully revocable if the department subsequently
307 determines that any facts set forth in the application are not
308 true or correctly represented.
309 (4) LICENSE CERTIFICATE.—
310 (a) An initial A license certificate shall be issued by the
311 department in accordance with such application when the
312 application is regular in form and in compliance with the
313 provisions of this section. The license certificate may be in
314 the form of a document or a computerized card as determined by
315 the department. The actual cost of each original, additional, or
316 replacement computerized card shall be borne by the licensee and
317 is in addition to the fee for licensure. Such license, when so
318 issued, entitles the licensee to carry on and conduct the
319 business of a motor vehicle dealer or broker. Each license
320 issued to a franchise motor vehicle dealer or motor vehicle
321 broker expires on December 31 of the year of its expiration
322 unless revoked or suspended prior to that date. Each license
323 issued to an independent or wholesale dealer or auction expires
324 on April 30 of the year of its expiration unless revoked or
325 suspended prior to that date. At least 60 days before the
326 license expiration date, the department shall deliver or mail to
327 each licensee the necessary renewal forms. Each independent
328 dealer shall certify that the dealer (owner, partner, officer,
329 or director of the licensee, or a full-time employee of the
330 licensee that holds a responsible management-level position) has
331 completed 8 hours of continuing education prior to filing the
332 renewal forms with the department. Such certification shall be
333 filed once every 2 years. The continuing education shall include
334 at least 2 hours of legal or legislative issues, 1 hour of
335 department issues, and 5 hours of relevant motor vehicle
336 industry topics. Continuing education shall be provided by
337 dealer schools licensed under paragraph (b) either in a
338 classroom setting or by correspondence. Such schools shall
339 provide certificates of completion to the department and the
340 customer which shall be filed with the license renewal form, and
341 such schools may charge a fee for providing continuing
342 education. Any licensee who does not file his or her application
343 and fees and any other requisite documents, as required by law,
344 with the department at least 30 days prior to the license
345 expiration date shall cease to engage in business as a motor
346 vehicle dealer on the license expiration date. A renewal filed
347 with the department within 45 days after the expiration date
348 shall be accompanied by a delinquent fee of $100. Thereafter, a
349 new application is required, accompanied by the initial license
350 fee. A license certificate duly issued by the department may be
351 modified by endorsement to show a change in the name of the
352 licensee, provided, as shown by affidavit of the licensee, the
353 majority ownership interest of the licensee has not changed or
354 the name of the person appearing as franchisee on the sales and
355 service agreement has not changed. Modification of a license
356 certificate to show any name change as herein provided shall not
357 require initial licensure or reissuance of dealer tags; however,
358 any dealer obtaining a name change shall transact all business
359 in and be properly identified by that name. All documents
360 relative to licensure shall reflect the new name. In the case of
361 a franchise dealer, the name change shall be approved by the
362 manufacturer, distributor, or importer. A licensee applying for
363 a name change endorsement shall pay a fee of $25 which fee shall
364 apply to the change in the name of a main location and all
365 additional locations licensed under the provisions of subsection
366 (5). Each initial license application received by the department
367 shall be accompanied by verification that, within the preceding
368 6 months, the applicant, or one or more of his or her designated
369 employees, has attended a training and information seminar
370 conducted by a licensed motor vehicle dealer training school.
371 Any applicant for a new franchised motor vehicle dealer license
372 who has held a valid franchised motor vehicle dealer license
373 continuously for the past 2 years and who remains in good
374 standing with the department is exempt from the prelicensing
375 training requirement. Such seminar shall include, but is not
376 limited to, statutory dealer requirements, which requirements
377 include required bookkeeping and recordkeeping procedures,
378 requirements for the collection of sales and use taxes, and such
379 other information that in the opinion of the department will
380 promote good business practices. No seminar may exceed 8 hours
381 in length.
382 (b) Each initial license application received by the
383 department for licensure under subparagraph (1)(c)2. shall be
384 accompanied by verification that, within the preceding 6 months,
385 the applicant (owner, partner, officer, or director of the
386 applicant, or a full-time employee of the applicant that holds a
387 responsible management-level position) has successfully
388 completed training conducted by a licensed motor vehicle dealer
389 training school. Such training must include training in titling
390 and registration of motor vehicles, laws relating to unfair and
391 deceptive trade practices, laws relating to financing with
392 regard to buy-here, pay-here operations, and such other
393 information that in the opinion of the department will promote
394 good business practices. Successful completion of this training
395 shall be determined by examination administered at the end of
396 the course and attendance of no less than 90 percent of the
397 total hours required by such school. Any applicant who had held
398 a valid motor vehicle dealer’s license continuously within the
399 past 2 years and who remains in good standing with the
400 department is exempt from the prelicensing requirements of this
401 section. The department shall have the authority to adopt any
402 rule necessary for establishing the training curriculum; length
403 of training, which shall not exceed 8 hours for required
404 department topics and shall not exceed an additional 24 hours
405 for topics related to other regulatory agencies’ instructor
406 qualifications; and any other requirements under this section.
407 The curriculum for other subjects shall be approved by any and
408 all other regulatory agencies having jurisdiction over specific
409 subject matters; however, the overall administration of the
410 licensing of these dealer schools and their instructors shall
411 remain with the department. Such schools are authorized to
412 charge a fee.
413 (b) Each initial application for licensure as an
414 independent motor vehicle dealer received by the department
415 shall be accompanied by verification that, within the preceding
416 6 months, the applicant or one or more of his or her designated
417 employees has attended a training and information seminar
418 conducted by a licensed motor vehicle dealer training school.
419 Such training must include instruction in titling and
420 registration of motor vehicles, laws relating to unfair and
421 deceptive trade practices, laws relating to financing with
422 regard to buy-here, pay-here operations, and such other
423 information that in the opinion of the department promotes good
424 business practices. Successful completion of this training shall
425 be determined by examination administered at the end of the
426 seminar and attendance of no less than 90 percent of the total
427 hours required by such school. Any applicant who had held a
428 valid motor vehicle dealer’s license continuously within the
429 past 2 years and who remains in good standing with the
430 department is exempt from the prelicensing requirements of this
431 section. The department may adopt any rule necessary for
432 establishing the training curriculum; length of training, which
433 shall not exceed 8 hours for required department topics and
434 shall not exceed an additional 24 hours for topics related to
435 other regulatory agencies’ instructor qualifications; and any
436 other requirements under this section. The curriculum for other
437 subjects shall be approved by any and all other regulatory
438 agencies having jurisdiction over the specific subject matters;
439 however, the overall administration of the licensing of these
440 dealer schools and their instructors shall remain with the
441 department. Such schools are authorized to charge a fee for
442 training.
443 (c) At least 60 days before the license expiration date,
444 the department shall deliver or mail to each licensee the
445 necessary renewal forms.
446 1. Each independent motor vehicle dealer must certify that
447 the dealer has completed 8 hours of continuing education before
448 filing the renewal forms with the department. For purposes of
449 this subparagraph, the term “dealer” means an owner, partner,
450 officer, or director of the licensee, or a full-time employee of
451 the licensee that holds a responsible management-level position.
452 Such certification must be filed once every 2 years. The
453 continuing education shall include at least 2 hours of
454 instruction in legal or legislative issues, 1 hour of
455 instruction in department issues, and 5 hours of instruction in
456 relevant motor vehicle industry topics. Continuing education
457 shall be provided by dealer schools licensed under paragraph (b)
458 either in a classroom setting or by correspondence. Such schools
459 shall provide certificates of completion to the department and
460 the customer which must be filed with the license renewal form,
461 and such schools may charge a fee for providing continuing
462 education.
463 2. Each franchised motor vehicle dealer shall certify that
464 the dealer, operator, owner, partner, director, or general
465 manager of the licensee has completed 8 hours of industry
466 certification on legal and legislative issues every 2 years
467 provided by a Florida-based, non-profit, dealer-owned industry
468 organization with state and federal compliance credentials
469 approved by the department. In the case of licensees with more
470 than 5 licensed or supplemental locations, the certification may
471 be accomplished by one designated employee as prescribed above.
472 Certification shall be required in a classroom setting in a
473 convenient location within the state and designated individuals
474 shall receive certificates of completion from the organization
475 which must be filed with their license renewal form.
476 3. Any licensee who does not file his or her application
477 and any other requisite documents with, and pay the fees to, as
478 required by law, the department at least 30 days before the
479 license expiration date must cease to engage in business as a
480 motor vehicle dealer no later than the license expiration date.
481 A renewal filed with the department within 45 days after the
482 expiration date must be accompanied by a delinquent fee of $100.
483 Thereafter, a new application is required, accompanied by the
484 initial license fee.
485 (d) A license certificate duly issued by the department may
486 be modified by endorsement to show a change in the name of the
487 licensee, provided, as shown by affidavit of the licensee, the
488 majority ownership interest of the licensee has not changed or
489 the name of the person appearing as franchisee on the sales and
490 service agreement has not changed. Modification of a license
491 certificate to show any name change as provided in this
492 paragraph does not require initial licensure or reissuance of
493 dealer tags; however, any dealer obtaining a name change shall
494 transact all business in and be properly identified by that
495 name. All documents relative to licensure shall reflect the new
496 name. In the case of a franchised motor vehicle dealer, the name
497 change shall be approved by the manufacturer, distributor, or
498 importer. A licensee applying for a name change endorsement
499 shall pay a fee of $25 which shall apply to the change in the
500 name of a main location and all additional locations licensed
501 under subsection (5).
502 Section 2. This act shall take effect July 1, 2018.