Senate Bill sb1090

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    Florida Senate - 2001                                  SB 1090

    By Senator Villalobos





    37-458-01

  1                      A bill to be entitled

  2         An act relating to motor vehicle dealer

  3         franchise agreements; amending s. 320.60, F.S.;

  4         revising definitions used in ss. 320.61-320.70,

  5         F.S.; amending s. 320.61, F.S.; amending

  6         procedures to be followed when a complaint of

  7         unfair cancellation of a dealer agreement has

  8         been made by a motor vehicle dealer against a

  9         licensee; defining the term "final decision";

10         amending s. 320.63, F.S.; providing that the

11         terms and conditions of a franchise agreement

12         must comply with ss. 320.60-320.70, F.S., or

13         they are unenforceable; prohibiting licensees

14         from performing certain acts; amending s.

15         320.64, F.S.; providing penalties and remedies

16         for violations; amending s. 320.641, F.S.;

17         providing procedures relating to

18         discontinuations, cancellations, nonrenewals,

19         modifications, and replacements of franchise

20         agreements; amending s. 320.642, F.S.; amending

21         procedures for establishing an additional motor

22         vehicle dealer who deals in a specific

23         line-make in an area that is already served by

24         another such dealer; amending s. 320.643, F.S.;

25         amending provisions relating to the transfer,

26         assignment, or sale of franchise agreements;

27         amending s. 320.645, F.S.; amending provisions

28         relating to restrictions upon a licensee's

29         owning a dealership; providing for "dealer

30         development arrangements"; providing powers of

31         the Department of Highway Safety and Motor

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  1         Vehicles; amending s. 320.695, F.S.; amending

  2         procedures for enjoining any person from acting

  3         as a licensee under ss. 320.60-320.70, F.S.,

  4         without being properly licensed or from

  5         violating those statutes or rules adopted

  6         thereunder; amending s. 320.699, F.S.; amending

  7         procedures for administrative hearings and

  8         adjudications relating to a motor vehicle

  9         dealer's allegations of harm due to an

10         applicant's or licensee's violation of ss.

11         320.60-320.70, F.S.; providing for

12         severability; providing an effective date.

13

14  Be It Enacted by the Legislature of the State of Florida:

15

16         Section 1.  Section 320.60, Florida Statutes, is

17  amended to read:

18         320.60  Definitions for ss. 320.61-320.70.--As Whenever

19  used in ss. 320.61-320.70, unless the context otherwise

20  requires, the term following words and terms have the

21  following meanings:

22         (1)  "Agreement" or "franchise agreement" means a

23  contract, franchise, new motor vehicle franchise, sales and

24  service agreement, or dealer agreement or any other

25  terminology used to describe the contractual relationship

26  between a manufacturer, factory branch, distributor, or

27  importer, and a motor vehicle dealer, pursuant to which the

28  motor vehicle dealer is authorized to transact business

29  pertaining to motor vehicles of a particular line-make.

30         (2)  "Area of responsibility" means the area that the

31  licensee reasonably designates as a motor vehicle dealer's

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  1  geographic territory for the purpose of evaluation of the

  2  motor vehicle dealer for the marketing, promoting, and selling

  3  of the licensee's new motor vehicles. In the absence of a

  4  licensee designated area, the area of responsibility is that

  5  geographical area surrounding a dealer which lies closer to

  6  that dealer than to other dealers of the same line-make.

  7         (3)  "Broker" means a person, firm, company,

  8  corporation, or other entity that arranges or offers to

  9  arrange a transaction involving the sale or lease of a new

10  motor vehicle and that is not a franchised motor vehicle

11  dealer.

12         (4)(2)  "Common entity" means a person:

13         (a)  Who is either controlled or owned, beneficially or

14  of record, by one or more persons who also control or own more

15  than 40 percent of the voting equity interests of a

16  manufacturer; or

17         (b)  Who shares directors or officers or partners with

18  a manufacturer.

19         (5)  "Consumer" means any person, firm, company,

20  corporation, or other entity that purchases, leases, or

21  finances, or expresses an interest in purchasing, leasing, or

22  financing, a motor vehicle, used motor vehicle, or motor

23  vehicle parts or service, other than for resale.

24         (6)(3)  "Demonstrator" means any new motor vehicle

25  which is carried on the records of the dealer as a

26  demonstrator and is used by, being inspected or driven by the

27  dealer or his or her employees or prospective customers for

28  the purpose of demonstrating vehicle characteristics in the

29  sale or display of motor vehicles sold by the dealer.

30         (7)(4)  "Department" means the Department of Highway

31  Safety and Motor Vehicles.

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  1         (8)(5)  "Distributor" means a person, resident or

  2  nonresident, who, in whole or in part, sells or distributes

  3  motor vehicles to motor vehicle dealers or who maintains

  4  distributor representatives.

  5         (9)(6)  "Factory branch" means a branch office

  6  maintained by a manufacturer, distributor, or importer for the

  7  sale of motor vehicles to distributors or to motor vehicle

  8  dealers, or for directing or supervising, in whole or in part,

  9  its representatives in this state.

10         (10)(7)  "Importer" means any person who imports

11  vehicles from a foreign country into the United States or into

12  this state for the purpose of sale or lease.

13         (11)  "Lead means any consumer who, for a purpose other

14  than that of resale, expresses to a licensee an interest in

15  purchasing, leasing, or financing, or in possibly purchasing,

16  leasing, or financing, a motor vehicle, used motor vehicle, or

17  motor vehicle parts or service, or who seeks information from

18  a licensee regarding any such expression of interest.

19         (12)  "Line-make vehicles" means those motor vehicles

20  that are offered for sale, lease, or distribution under a

21  common name, trademark, service mark, or brand name of their

22  manufacturer.

23         (13)(8)  "Licensee" means any person licensed or

24  required to be licensed under s. 320.61.

25         (14)(9)  "Manufacturer" means any person, whether a

26  resident or nonresident of this state, who manufactures or

27  assembles motor vehicles or who manufactures or installs on

28  previously assembled truck chassis special bodies or equipment

29  which, when installed, form an integral part of the motor

30  vehicle and which constitute a major manufacturing alteration.

31  The term "manufacturer" includes a central or principal sales

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  1  corporation or other entity through which, by contractual

  2  agreement or otherwise, it distributes its products.

  3         (15)(10)  "Motor vehicle" means any new automobile,

  4  motorcycle, or truck the equitable or legal title to which has

  5  never been transferred by a manufacturer, distributor,

  6  importer, or dealer to an ultimate purchaser; however, when

  7  legal title is not transferred but possession of a motor

  8  vehicle is transferred pursuant to a conditional sales

  9  contract or lease and the conditions are not satisfied and the

10  vehicle is returned to the motor vehicle dealer, the motor

11  vehicle may be resold by the motor vehicle dealer as a new

12  motor vehicle, provided the selling motor vehicle dealer gives

13  the following written notice to the purchaser: "THIS VEHICLE

14  WAS DELIVERED TO A PREVIOUS PURCHASER." The purchaser shall

15  sign an acknowledgment, a copy of which is kept in the selling

16  dealer's file.

17         (16)(11)(a)  "Motor vehicle dealer" means any person,

18  firm, company, or corporation, or other entity who is licensed

19  under s. 320.27 as a "franchised motor vehicle dealer" and

20  who, for commission, money, or other things of value, repairs

21  or services motor vehicles or used motor vehicles pursuant to

22  an agreement as defined in subsection (1), or who sells,

23  exchanges, buys, leases, or rents, or offers, or attempts to

24  negotiate a sale or exchange of any interest in, motor

25  vehicles or who is engaged wholly or in part in the business

26  of selling motor vehicles, whether or not such motor vehicles

27  are owned by such person, firm, company, or corporation.

28         (b)  Any person who repairs or services three or more

29  motor vehicles or used motor vehicles as set forth in

30  paragraph (a), or who buys, sells, or deals in three or more

31  motor vehicles in any 12-month period or who offers or

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  1  displays for sale three or more motor vehicles in any 12-month

  2  period shall be prima facie presumed to be a motor vehicle

  3  dealer.  The terms "selling" and "sale" include lease-purchase

  4  transactions.

  5         (c)  The term "motor vehicle dealer" does not include:

  6         1.  Public officers while performing their official

  7  duties;

  8         2.  Receivers, trustees, administrators, executors,

  9  guardians, or other persons appointed by, or acting under the

10  judgment or order of, any court;

11         3.  Banks, finance companies, or other loan agencies

12  that acquire motor vehicles as an incident to their regular

13  business; or

14         4.  Motor vehicle rental and leasing companies that

15  sell motor vehicles to motor vehicle dealers licensed under s.

16  320.27.

17         (17)(12)  "Person" means any natural person,

18  partnership, firm, corporation, association, joint venture,

19  trust, or other legal entity.

20         (18)  "Sell", "selling", "sold", "exchange", "retail

21  sales", or "leases" includes any transaction in which the

22  title of a motor vehicle or used motor vehicle is transferred

23  to a retail consumer and also includes any retail lease

24  transaction in which a retail customer leases a vehicle for a

25  period of at least 12 months.

26         (19)  "Service" means any service that, for any

27  compensation, is sold, leased, or provided to retail consumers

28  and that directly relates to the ownership or leasing of a

29  motor vehicle or used motor vehicle, including extended

30  service contracts and motor vehicle warranty and nonwarranty

31  repairs or maintenance, including both parts and labor.

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  1         (20)(13)  "Used motor vehicle" means any motor vehicle

  2  title to or possession of which has been transferred from the

  3  person who first acquired it from the manufacturer,

  4  distributor, importer, or dealer and which is commonly known

  5  as "secondhand" within the ordinary meaning thereof.

  6         (14)  "Line-make vehicles" are those motor vehicles

  7  which are offered for sale, lease, or distribution under a

  8  common name, trademark, service mark, or brand name of the

  9  manufacturer of same.

10         Section 2.  Subsection (4) of section 320.61, Florida

11  Statutes, is amended to read:

12         320.61  Licenses required of motor vehicle

13  manufacturers, distributors, importers, etc.--

14         (4)  When a complaint of unfair cancellation of a

15  dealer agreement is made by a motor vehicle dealer against a

16  licensee and the complaint is pending is in the process of

17  being heard pursuant to ss. 320.60-320.70 by the department, a

18  no replacement application for the such agreement may not

19  shall be granted and a license may not be issued by the

20  department under s. 320.27 to any replacement dealer until a

21  final decision is rendered by the department on the complaint

22  of unfair cancellation. As used in this subsection, the term

23  "final decision" includes the exhaustion of all appellate

24  remedies by the licensee or motor vehicle dealer.

25         Section 3.  Section 320.63, Florida Statutes, is

26  amended to read:

27         320.63  Application for license; contents.--Any person

28  desiring to be licensed pursuant to ss. 320.60-320.70 shall

29  make application therefor to the department upon a form

30  containing such information as the department requires. The

31  department shall require, with such application or otherwise

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  1  and from time to time, all of the following, which information

  2  may be considered by the department in determining the fitness

  3  of the applicant or licensee to engage in the business for

  4  which the applicant or licensee desires to be licensed:

  5         (1)  Information relating to the applicant's or

  6  licensee's solvency and financial standing.

  7         (2)  A certified copy of the applicant's or licensee's

  8  new motor vehicle warranty or warranties in any way connected

  9  with a motor vehicle or any component thereof, accompanied by

10  a detailed explanation thereof.

11         (3)  From each manufacturer, distributor, or importer

12  which utilizes an identical blanket basic agreement for its

13  dealers or distributors in this state, which agreement

14  comprises all or any part of the applicant's or licensee's

15  agreements with motor vehicle dealers in this state, a copy of

16  the written agreement and all supplements thereto, together

17  with a list of the applicant's or licensee's authorized

18  dealers or distributors and their addresses. The applicant or

19  licensee shall further notify the department immediately of

20  the appointment of any additional dealer or distributor.  The

21  applicant or licensee shall annually report to the department

22  on its efforts to add new minority dealer points, including

23  difficulties encountered under ss. 320.61-320.70.  For

24  purposes of this section "minority" shall have the same

25  meaning as that given it in the definition of "minority

26  person" in s. 288.703(3).  Not later than 60 days prior to the

27  date a revision or modification to a franchise agreement is

28  offered uniformly to a licensee's motor vehicle dealers in

29  this state, the licensee shall notify the department of such

30  revision, modification, or addition to the franchise agreement

31  on file with the department.  In no event may a franchise

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  1  agreement, or any addendum or supplement thereto, be offered

  2  to a motor vehicle dealer in this state until the applicant or

  3  licensee files an affidavit with the department acknowledging

  4  that the terms or provisions of the agreement, or any related

  5  document, are not inconsistent with, prohibited by, or

  6  contrary to the provisions contained in ss. 320.60-320.70.

  7  Any franchise agreement offered to a motor vehicle dealer in

  8  this state shall provide that all terms and conditions in such

  9  agreement inconsistent with the law and rules of this state

10  are of no force and effect.

11         (4)  A certified copy of the delivery and preparation

12  obligations of its motor vehicle dealers.

13         (5)  An affidavit stating the rates which the applicant

14  or licensee pays or agrees to pay any authorized motor vehicle

15  dealer licensed in this state for the parts and labor advanced

16  or incurred by such authorized motor vehicle dealer for or on

17  account of any delivery and preparation obligations imposed by

18  the applicant or the licensee on its dealers or relating to

19  warranty obligations which the applicant or licensee or its

20  principle is obligated to perform.

21         (6)  The fee for the annual license.

22         (7)  Any other pertinent matter commensurate with the

23  safeguarding of the public interest which the department, by

24  rule, prescribes.

25

26  The terms and conditions of a franchise agreement are subject

27  to ss. 320.60-320.70. A term or condition of a franchise

28  agreement which is inconsistent with or in violation of ss.

29  320.60-320.70 is not enforceable by a licensee.

30         Section 4.  Section 320.64, Florida Statutes, is

31  amended to read:

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  1         320.64  Prohibited acts by licensee Denial, suspension,

  2  or revocation of license; grounds.--A licensee or applicant is

  3  subject to claims and remedies provided in ss. 320.695 and

  4  320.697 for violating any provision of this section. Any of

  5  the following acts on the part of a licensee constitutes a

  6  violation: A license may be denied, suspended, or revoked

  7  within the entire state or at any specific location or

  8  locations within the state at which the applicant or licensee

  9  engages or proposes to engage in business, upon proof that an

10  applicant or licensee has failed to comply with any of the

11  following provisions with sufficient frequency so as to

12  establish a pattern of wrongdoing on the part of the

13  applicant:

14         (1)  The applicant or licensee is determined to be

15  unable to carry out contractual obligations with its motor

16  vehicle dealers.

17         (2)  The applicant or licensee has knowingly made a

18  material misstatement in its application for a license.

19         (3)  The applicant or licensee willfully has failed to

20  comply with significant provisions of ss. 320.60-320.70 or

21  with any lawful rule or regulation adopted or promulgated by

22  the department.

23         (4)  The applicant or licensee has performed indulged

24  in any illegal act relating to his or her business.

25         (5)  The applicant or licensee has coerced or attempted

26  to coerce any motor vehicle dealer into accepting delivery of

27  any motor vehicle or vehicles or parts or accessories therefor

28  or any other commodities that which have not been ordered by

29  the dealer.

30

31

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  1         (6)  The applicant or licensee has coerced or attempted

  2  to coerce any motor vehicle dealer to enter into any agreement

  3  with the licensee.

  4         (7)  The applicant or licensee has threatened to

  5  discontinue, cancel, or not to renew a franchise agreement of

  6  a licensed motor vehicle dealer, where the threatened

  7  discontinuation, cancellation, or nonrenewal, if implemented,

  8  would be in violation of any of the provisions of s. 320.641.

  9         (8)  The applicant or licensee discontinued, canceled,

10  or failed to renew, a franchise agreement of a licensed motor

11  vehicle dealer in violation of any of the provisions of s.

12  320.641.

13         (9)  The applicant or licensee has threatened to modify

14  or replace, or has modified or replaced, a franchise agreement

15  with a succeeding franchise agreement, or has implemented or

16  threatened to implement a policy, program, procedure,

17  standard, addendum, or requirement, that which would adversely

18  alter the rights or obligations of a motor vehicle dealer

19  under an existing franchise agreement or that may which

20  substantially impair impairs the sales, service obligations,

21  or investment of the motor vehicle dealer, without complying

22  with s. 320.641.

23         (10)  The applicant or licensee has attempted to enter,

24  or has entered, into a franchise agreement with a motor

25  vehicle dealer who does not, at the time of the franchise

26  agreement, have proper facilities to provide the services to

27  his or her purchasers of new motor vehicles the services that

28  which are covered by the new motor vehicle warranty issued by

29  the applicant or licensee.

30         (11)  The applicant or licensee has coerced a motor

31  vehicle dealer to provide installment financing for the motor

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  1  vehicle dealer's purchasers with a specified financial

  2  institution.

  3         (12)  The applicant or licensee has advertised,

  4  printed, displayed, published, distributed, broadcast, or

  5  televised, or caused or permitted to be advertised, printed,

  6  displayed, published, distributed, broadcast, or televised, in

  7  any manner whatsoever, any statement or representation with

  8  regard to the sale or financing of motor vehicles which is

  9  false, deceptive, or misleading.

10         (13)  The applicant or licensee has refused to deliver,

11  in reasonable quantities and within a reasonable time, new

12  motor vehicles and parts for motor vehicles to any duly

13  licensed motor vehicle dealer who has an agreement with the

14  such applicant or licensee for the retail sale of those new

15  motor vehicles or and parts for motor vehicles sold or

16  distributed by the applicant or licensee, any such motor

17  vehicles or parts as are covered by such agreement

18  specifically publicly advertised by such applicant or licensee

19  to be available for immediate delivery. Such a refusal

20  includes:

21         (a)  The failure to offer to sell to all motor vehicle

22  dealers in this state of the same line-make, all motor vehicle

23  models manufactured for that line-make; such vehicles shall be

24  offered at the same price with no discount based on the

25  quantity being purchased;

26         (b)  Requiring a motor vehicle dealer to pay any extra

27  fee; to purchase unreasonable advertising displays, signs, or

28  other materials; to remodel, renovate, or recondition the

29  motor vehicle dealer's existing facilities; or to provide

30  exclusive facilities, as a prerequisite to receiving any model

31  or series of motor vehicle; or

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  1         (c)  Requiring a motor vehicle dealer of a line-make to

  2  enter into a separate franchise agreement for any model or

  3  series of motor vehicle manufactured for that line-make.

  4

  5  However, the failure to deliver any motor vehicle or part will

  6  not be considered a violation of this section if the failure

  7  is due to act of God, work stoppage, or delay due to a strike

  8  or labor difficulty, a freight embargo, national product

  9  shortage, or other cause over which the applicant or licensee

10  has no control. The failure to deliver parts or components for

11  the current and 5 preceding years' models within 60 days after

12  the from date of order is considered to shall be deemed prima

13  facie unreasonable. Notwithstanding any other provision of

14  this subsection, this subsection does not prohibit a licensee

15  from requiring motor vehicle dealers located in this state to

16  purchase special tools or equipment, to stock reasonable

17  quantities of certain parts or accessories, or to participate

18  in training programs that are reasonably necessary to enable

19  the motor vehicle dealer to sell or service any model or

20  series of motor vehicles if such requirements are reasonable,

21  are in writing, and are uniformly applied to all of the

22  licensee's motor vehicle dealers of the same line-make.

23         (14)  The applicant or licensee has sold, exchanged, or

24  rented a motorcycle that which produces in excess of 5 brake

25  horsepower, knowing the use thereof to be by, or intended for,

26  the holder of a restricted Florida driver's license.

27         (15)  The applicant or licensee has engaged in previous

28  conduct that which would have been a ground for revocation or

29  suspension of a license if the applicant or licensee had been

30  licensed.

31

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  1         (16)  Notwithstanding the terms of any franchise

  2  agreement, and unless it can be shown that the licensee's

  3  franchised dealer is actively negligent, the applicant or

  4  licensee has failed to indemnify and hold harmless its

  5  franchised motor vehicle dealer against any judgment for

  6  damages or settlement agreed to in writing by the applicant or

  7  licensee, including, but not limited to, court costs and

  8  reasonable attorney's fees of the motor vehicle dealer, which

  9  judgment or settlement arose out of complaints, claims, or

10  lawsuits based upon such grounds as strict liability;

11  negligence; misrepresentation; warranty, express or implied;

12  or rescission of the sale as described in s. 672.608, less any

13  offset for use recovered by the licensee's franchised motor

14  vehicle dealer, and only to the extent that the judgment or

15  settlement relates to the alleged defective or negligent

16  manufacture, assembly, or design of new motor vehicles, parts,

17  or accessories or other functions of the manufacturer.

18         (17)  The applicant or licensee, directly or

19  indirectly, through the actions of any parent of the licensee,

20  subsidiary of the licensee, or common entity causes a

21  termination, cancellation, or nonrenewal of a franchise

22  agreement by a present or previous distributor or importer

23  unless, by the effective date of such action, the applicant or

24  licensee offers the motor vehicle dealer whose franchise

25  agreement is terminated, canceled, or not renewed a franchise

26  agreement containing substantially the same provisions

27  contained in the previous franchise agreement or files an

28  affidavit with the department acknowledging its undertaking to

29  assume and fulfill the rights, duties, and obligations of its

30  predecessor distributor or importer under the terminated,

31

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  1  canceled, or nonrenewed franchise agreement and the same is

  2  reinstated.

  3         (18)  Notwithstanding the terms of any franchise

  4  agreement, the applicant or licensee prevents or refuses to

  5  accept the succession to any interest in a franchise agreement

  6  by any legal heir or devisee under the will of a motor vehicle

  7  dealer or under the laws of descent and distribution of this

  8  state; however provided, the applicant or licensee is not

  9  required to accept a succession if the where such heir or

10  devisee does not meet licensee's written, reasonable, and

11  uniformly applied minimal standard qualifications for dealer

12  applicants or if which, after notice and administrative

13  hearing pursuant to chapter 120, succession by that heir or

14  devisee is demonstrated to be detrimental to the public

15  interest or to the representation of the applicant or

16  licensee.  Nothing contained herein, However, this subsection

17  does not shall prevent a motor vehicle dealer, during his or

18  her lifetime, from designating any person as his or her

19  successor in interest by written instrument filed with and

20  accepted by the applicant or licensee.  A licensee who rejects

21  the successor transferee under this subsection has shall have

22  the burden of establishing in any proceeding in which where

23  such a rejection is in issue that the rejection of the

24  successor transferee complies with this subsection.

25         (19)  The applicant or licensee has included in any

26  franchise agreement with a motor vehicle dealer terms or

27  provisions that are contrary to, prohibited by, or otherwise

28  inconsistent with the provisions contained in ss.

29  320.60-320.70, or has failed to include in such a franchise

30  agreement a provision conforming to the requirements of s.

31  320.63(3).

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  1         (20)  The applicant or licensee has established a

  2  system of motor vehicle allocation or distribution or has

  3  implemented a system of allocation or distribution of motor

  4  vehicles to one or more of its franchised motor vehicle

  5  dealers which is unfair, inequitable, unreasonably

  6  discriminatory, or not supportable by reason and good cause

  7  after considering the equities of the affected motor vehicles

  8  dealer or dealers. A licensee shall maintain for 3 years

  9  records that fully describe its method or formula of

10  allocation and distribution of its motor vehicles, records of

11  its actual allocation and distribution of each model of its

12  motor vehicles, and all other records that directly or

13  indirectly affect the allocation or distribution of motor

14  vehicles to its motor vehicle dealers. At the request of a

15  motor vehicle dealer who has a franchise agreement with the

16  licensee for that line-make, these records must be made

17  available to the dealer, free of charge, within 30 days after

18  the date of the request. Any such request by a motor vehicle

19  dealer must be in writing, and a copy of the request must be

20  filed with the Department of Highway Safety and Motor

21  Vehicles.

22         (21)  The applicant or licensee, without good and fair

23  cause, has delayed, refused, or failed to provide a supply of

24  motor vehicles by series in reasonable quantities, including

25  the models publicly advertised by the applicant or licensee as

26  being available, or has delayed, refused, or failed to deliver

27  motor vehicle parts and accessories within a reasonable time

28  after receipt of an order by a franchised dealer.  However,

29  this subsection is not violated if such failure is caused by

30  acts or causes beyond the control of the applicant or

31  licensee.

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  1         (22)  The applicant or licensee has required, or

  2  threatened to require, a motor vehicle dealer to prospectively

  3  assent to a release, assignment, novation, waiver, or

  4  estoppel, which instrument or document operates, or is

  5  intended by the applicant or licensee to operate, to relieve

  6  any person from any liability or obligation under the

  7  provisions of ss. 320.60-320.70.

  8         (23)  The applicant or licensee has threatened or

  9  coerced a motor vehicle dealer toward conduct or action

10  whereby the dealer would waive or forego its right to protest

11  the establishment or relocation of a motor vehicle dealer in

12  the community or territory serviced by the threatened or

13  coerced dealer.

14         (24)  The applicant or licensee, or its parent,

15  subsidiary, or common entity,  has sold or leased, or offered

16  to sell or lease, directly or indirectly, any service, motor

17  vehicle, or product to a retail consumer in this state, except

18  through a motor vehicle dealer that holds a franchise for the

19  line-make. This subsection does not apply to an applicant or

20  licensee exempted under s. 320.645(3), or to a replacement

21  vehicle provided by the licensee under chapter 681.  Moreover,

22  this subsection does not prohibit:

23         (a)  A licensee from providing the use of motor

24  vehicles for occasional general promotional or charitable

25  uses.

26         (b)  A licensee from providing financing directly to

27  any person, firm, company, corporation, or other entity if the

28  financing is for any product or service that is not sold by a

29  motor vehicle dealer under its franchise agreement.

30         (c)  A licensee from providing loans directly to motor

31  vehicle dealers of any line-make, for any purpose, including

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  1  working capital, real estate, construction, or inventories of

  2  motor vehicles, used motor vehicles, or parts.

  3         (d)  A licensee from providing directly to a retail

  4  consumer services and products that are incidental to the

  5  ownership or leasing of a motor vehicle or used motor vehicle

  6  and are not for purposes of resale and that constitute

  7  services or products that the retail customer is owed as a

  8  result of purchasing or leasing a motor vehicle or used motor

  9  vehicle from a motor vehicle dealer, such as replacement keys

10  and emergency roadside service.

11         (25)  Notwithstanding the terms of any franchise

12  agreement, any warranty procedure manual, or any warranty

13  reimbursement instructions or policy of any applicant or

14  licensee:

15         (a)  The applicant or licensee has charged back a motor

16  vehicle dealer for any warranty payment or any portion of such

17  a payment made to the dealer for, or has failed to properly

18  reimburse a motor vehicle dealer for, any service or repair

19  claimed by the motor vehicle dealer under the licensee's

20  warranty to correct a defective condition of that motor

21  vehicle which correction was desirable to prevent a

22  deterioration of any part of or the value of the motor

23  vehicle, or to correct a potential safety hazard, unless the

24  licensee proves by clear and convincing evidence that the

25  service or repair of the motor vehicle was not necessary at

26  the time of the service or repair or was not actually

27  performed, that the warranty claim was fraudulent when made,

28  or that the motor vehicle dealer failed to reasonably

29  substantiate or justify the claim either substantially in the

30  manner provided by the licensee's warranty procedure manual or

31

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  1  in some other reasonable manner.  As used in this paragraph,

  2  the terms "service" and "repair" include parts and labor;

  3         (b)  The applicant or licensee has required a motor

  4  vehicle dealer to file a statement of actual time spent in

  5  performance of labor on any service or repair to a motor

  6  vehicle covered under the licensee's warranty, or has

  7  considered actual labor time spent in any service or repair to

  8  a motor vehicle covered under the licensee's warranty when

  9  evaluating a motor vehicle dealer's claim for reimbursement,

10  when actual labor time spent was not the basis for

11  reimbursement to the dealer for the service or repair;

12         (c)  The applicant or licensee has performed an audit

13  for warranty parts and service compensation for payments made

14  more than 12 months before the date of commencement of the

15  audit;

16         (d)  The applicant or licensee, for any reason, has

17  sought to charge back or otherwise recover warranty payments

18  18 months or more after the date of payment; or

19         (e)  The applicant or licensee has charged back a

20  warranty payment, failed to pay a warranty claim, or rejected

21  a warranty claim without providing the motor vehicle dealer

22  with a detailed written description of the reasons for the

23  chargeback, failure to pay, or rejection for each warranty

24  claim, and of the facts known to the applicant or licensee

25  which show that the service or repair was not necessary, was

26  not actually performed, was fraudulent, or was not reasonably

27  substantiated. A motor vehicle dealer has 60 days after the

28  date of receipt of such a detailed written description to file

29  with a court of competent jurisdiction a complaint alleging

30  that the applicant or licensee has violated this section by

31  making a chargeback of, failing to pay, or rejecting a

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  1  warranty payment or any part thereof in violation of this

  2  section. During the 60-day period, and the pendency of any

  3  action filed under this paragraph, including the exhaustion of

  4  all appellate remedies, all potential chargebacks are stayed.

  5  If a final determination of any potential chargeback is in the

  6  favor of the motor vehicle dealer, the applicant or licensee

  7  is liable to the motor vehicle dealer for twice the amount of

  8  any alleged chargeback or unpaid or rejected warranty claim,

  9  plus reasonable attorney's fees and court costs.

10         (26)  Notwithstanding the terms of any franchise

11  agreement, the applicant or licensee has failed or refused to

12  indemnify and hold harmless any motor vehicle dealer against

13  any judgment for damages, or settlements agreed to by the

14  applicant or licensee, including, without limitation, court

15  costs and reasonable attorney's fees, arising out of

16  complaints, claims, or lawsuits, including, without

17  limitation, actions based on strict liability, negligence,

18  misrepresentation, express or implied warranty, or revocation

19  or rescission of acceptance of the sale of a motor vehicle, to

20  the extent that the judgment or settlement relates to the

21  alleged negligent manufacture, design, or assembly of motor

22  vehicles, parts, accessories, or other functions of the

23  applicant or licensee or its parents, subsidiaries,

24  affiliates, or a common entity, beyond the reasonable control

25  of the motor vehicle dealer. Failure of a motor vehicle dealer

26  to inspect a motor vehicle prior to its sale by the dealer

27  does not affect the obligations of an applicant or licensee,

28  its parents, subsidiaries, affiliates, or a common entity

29  under this section or under other applicable law.

30         (27)(a)  Notwithstanding the terms of any franchise

31  agreement, or any procedures manual, program, or other

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  1  instructions or policy of an applicant or licensee, the

  2  applicant or licensee has denied a motor vehicle dealer's

  3  claim for sales incentives, service incentives, rebates, or

  4  other forms of incentive compensation available to it, has

  5  reduced the amount of incentive to be paid to a motor vehicle

  6  dealer after the dealer has earned that incentive, or has

  7  charged back a motor vehicle dealer subsequent to the payment

  8  of an incentive claim, unless the licensee proves by clear and

  9  convincing evidence that the claim was fraudulent or that the

10  dealer failed, after written notice and a reasonable

11  opportunity to cure of not less than 60 days, to reasonably

12  substantiate the claim, as required by the licensee or in some

13  other reasonable manner.

14         (b)  The applicant or licensee has performed an audit

15  of sales incentives, sales rebates, service incentives,

16  service rebates, parts incentives, parts rebates, or other

17  forms of incentive compensation for any payment made more than

18  12 months before the date of the commencement of the audit.

19         (c)  The applicant or licensee has charged back an

20  incentive payment, failed to pay an incentive claim, or

21  rejected an incentive claim without providing the motor

22  vehicle dealer with a detailed written description of the

23  reasons for the chargeback, failure to pay, or rejection of

24  each claim and of the facts known to the applicant or licensee

25  which show that the claim was fraudulent or unsubstantiated. A

26  motor vehicle dealer has 60 days after the date of receipt of

27  such a written detailed description to file with a court of

28  competent jurisdiction a complaint alleging that the applicant

29  or licensee has violated this section by making a chargeback

30  or rejecting the claim in violation of this section. During

31  the 60-day period and the pendency of any action filed under

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  1  this paragraph, including the exhaustion of all appellate

  2  remedies, all potential chargebacks are stayed. If the court

  3  finds for the motor vehicle dealer, the applicant or licensee

  4  is liable to the motor vehicle dealer for twice the amount of

  5  any alleged chargeback or claim that the applicant or licensee

  6  failed to pay or rejected, plus reasonable attorney's fees and

  7  court costs.

  8         (28)  The applicant or licensee has conducted or

  9  threatened to conduct any audit of a motor vehicle dealer in

10  order to pressure or attempt to pressure the dealer to forego

11  any rights granted to the dealer under ss. 320.60-320.70 or

12  under the agreement between the licensee and the motor vehicle

13  dealer.

14         (29)  Notwithstanding the terms of any franchise

15  agreement, the applicant or licensee, by contract, policy, or

16  otherwise, has in any way restricted, conditioned, or

17  threatened or attempted to restrict or condition, a motor

18  vehicle dealer from selling new or used motor vehicles,

19  replacement parts, or accessories to any retail customer

20  domiciled in another state or foreign country. As used in this

21  paragraph, the terms "restricted" and "conditioned" include,

22  but are not limited to, refusing to allocate, sell, or deliver

23  motor vehicles in compliance with applicable law; refusing or

24  withholding payment of money or other things of value or

25  charging back moneys otherwise available to the motor vehicle

26  dealer under a sales promotion, program, or contest, or

27  excluding any motor vehicle or motor vehicle dealer from

28  participation in any such promotion, policy, program, or

29  contest offered by the applicant or licensee for sales or

30  leases of new or used motor vehicles within the area of

31  responsibility of a motor vehicle dealer.

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  1         (30)  Notwithstanding the terms of any franchise

  2  agreement, the applicant or licensee has wrongfully or

  3  unreasonably rejected or withheld approval of any proposed

  4  transfer made pursuant to s. 320.643(1) or s. 320.643(2) or a

  5  proposed change of executive management pursuant to s.

  6  320.644. Reasonableness is to be determined on an objective

  7  basis or standard.

  8         (31)  The applicant or licensee has imposed or

  9  attempted to impose any conditions upon the approval of a

10  proposed transfer made pursuant to s. 320.643(1) or s.

11  320.643(2) other than the transferee's compliance with the

12  requirements of s. 320.643. A transfer made pursuant to s.

13  320.643 (1) or s. 320.643(2) may not be refused or denied

14  because of a simultaneous proposal for a change of executive

15  management pursuant to s. 320.644.

16         (32)  The applicant or licensee has published,

17  disclosed, or otherwise made available any information,

18  including composite information, obtained from any motor

19  vehicle dealer or dealers, including, without limitation,

20  selling or leasing prices of motor vehicles or profit per

21  motor vehicles sold or leased.

22         (33)  After June 30, 2001, the applicant or licensee

23  has offered or attempted to introduce a franchise agreement or

24  to enter into any other agreement, release, or waiver with a

25  motor vehicle dealer, which contains any requirement that any

26  motor vehicle dealer participate in arbitration or mediation

27  concerning any issue with the applicant or licensee which is

28  binding on the dealer before the dealer files a complaint with

29  the department or any court of competent jurisdiction as

30  permitted by ss. 320.60-70; which contains a choice-of-venue

31  provision that requires a motor vehicle dealer to bring in a

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  1  venue outside this state an administrative or legal action or

  2  an arbitration or mediation proceeding that is binding on the

  3  dealer; which contains a choice-of-law provision that requires

  4  or permits the application of the law of any state other than

  5  this state; or which requires any motor vehicle dealer to

  6  compensate the applicant or licensee for any attorney's fees

  7  or court costs or other expenses incurred in any proceeding

  8  arising under ss. 320.60-230.70 or any franchise agreement,

  9  unless any such provision is voidable at any time at the

10  option of the motor vehicle dealer.

11         (34)  The applicant or licensee has directly or

12  indirectly competed with or discriminated against a motor

13  vehicle dealer located in this state with which the applicant

14  or licensee has entered into a franchise agreement, except as

15  permitted by s. 320.645.

16         (35)  Notwithstanding the terms of any franchise

17  agreement, or program or policy, an applicant or licensee has

18  offered, or allowed its parent, subsidiary, affiliate, or

19  common entity to offer, any program under which financing or

20  lease rates to retail customers of a motor vehicle dealer are

21  less than rates made available to retail customers of other

22  motor vehicle dealers of the same line-make in this state,

23  regardless of the other provisions of such a program or

24  policy, and regardless of whether a motor vehicle dealer is

25  eligible for or elects to participate in such a program or

26  policy.

27         (36)  The applicant or licensee has influenced any

28  aspect of the final amount charged, the final sales price, or

29  the final lease price for any motor vehicle, product,

30  trade-in, service, or financing offered for sale or lease to

31  retail consumers by a motor vehicle dealer without the prior

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  1  written consent of the dealer, or has charged the dealer more

  2  than 90 percent of the manufacturer's suggested retail price

  3  for a motor vehicle. Nevertheless, an applicant or licensee is

  4  not prohibited from:

  5         (a)  Establishing a manufacturer's suggested retail

  6  price pursuant to 15 United States Code s. 1232, if the motor

  7  vehicle dealer is afforded a gross profit of not less than 10

  8  percent.

  9         (b)  Implementing from time to time reasonable sales,

10  lease, or financing promotions of reasonable and limited

11  duration.

12         (c)  Implementing reasonable standard feature option

13  packages or vehicle option content in any way.

14         (d)  Establishing the terms of any new motor vehicle

15  warranty offered by the licensee.

16         (e)  Establishing reasonable sale, lease, or financing

17  terms through motor vehicle dealers to retirees of a licensee.

18         (37)  The applicant or licensee has provided or

19  directed less than all leads of prospective retail consumers

20  to the motor vehicle dealer of the applicable line-make in

21  whose assigned area of responsibility the lead resides, or, in

22  the case of a commercial lead, has its primary local business

23  address.  An applicant or licensee is not prohibited from

24  providing or directing leads to other motor vehicle dealers of

25  the same line-make in addition to the motor vehicle dealer in

26  whose assigned area of responsibility the lead resides;

27  however, all leads must be provided or directed in a fair,

28  nondiscriminatory, equitable, and timely manner and without

29  charging fees or cost reimbursements for the leads; if the

30  lead resides in a Standard Metropolitan Statistical Area, the

31  lead must be provided to the three closest dealers.

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  1         (38)  The applicant or licensee has a direct or

  2  indirect interest (equity, pecuniary, or otherwise) in a

  3  broker; offers to sell a new motor vehicle directly to a

  4  broker; or funds or offers to fund any operations of a broker,

  5  in whole or in part.

  6         (39)  The applicant or licensee has attempted to vary

  7  or varies the price charged to any of its motor vehicle

  8  dealers, or offers to any motor vehicle dealer located in this

  9  state any refunds, incentives, programs, or other inducements

10  for new or used motor vehicles which are based on:

11         (a)  The motor vehicle dealer's purchase of, or

12  establishment of, new facilities, supplies, computers, tools,

13  equipment, or new or used motor vehicles or other merchandise

14  from the licensee or any other person or entity designated,

15  endorsed, or approved by the licensee;

16         (b)  The motor vehicle dealer's relocation, remodeling,

17  repair, or renovation of existing motor vehicle dealerships or

18  construction of a new facility;

19         (c)  The motor vehicle dealer's willingness or

20  commitment to either establish or maintain exclusive

21  facilities, personnel, or display space;

22         (d)  The motor vehicle dealer's willingness to provide

23  loaner vehicles in whole or in part at the motor vehicle

24  dealer's expense to customers who are having a vehicle

25  serviced at the motor vehicle dealership; or

26         (e)  The motor vehicle dealer's participation in

27  training programs or employment or association of one or more

28  consultants who are sponsored, endorsed, or recommended by the

29  licensee, the payment for which is in any part the

30  responsibility of the motor vehicle dealer.

31

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  1  For purposes of this subsection, the price of a motor vehicle

  2  includes the licensee's rebates, credits, bonuses, or other

  3  consideration that has the effect of causing a variance in the

  4  price of new motor vehicles offered to its motor vehicle

  5  dealers located in the state. However, this subsection does

  6  not preclude a licensee from establishing sales contests or

  7  promotions that provide or award rebates or incentives to

  8  motor vehicle dealers or consumers. Moreover, this subsection

  9  does not prohibit a licensee from providing assistance or

10  encouragement, including reasonable additional allocation, to

11  a motor vehicle dealer to remodel, renovate, recondition, or

12  relocate the motor vehicle dealer's existing facilities if

13  that assistance or encouragement, or those rewards, are not

14  determined on a per-vehicle basis. If, on July 1, 2001, a

15  licensee is currently operating a program or has in effect a

16  policy that would violate this subsection, that program or

17  policy may continue in effect as to the licensee's motor

18  vehicle dealers located in this state through September 30,

19  2001.  Whether or not a program operated by a licensee

20  complies with this subsection, a licensee must pay or

21  otherwise compensate any franchised motor vehicle dealer who

22  has earned the right to receive payment or other compensation

23  under a program, in accordance with the licensee's program or

24  policy.

25         (40)  The applicant or licensee has failed to reimburse

26  a motor vehicle dealer in full for the actual cost of

27  providing a loaner vehicle to any customer who is having a

28  vehicle serviced at the motor vehicle dealer, if a loaner is

29  required by the licensee or a loaner is part of a licensee's

30  customer satisfaction index, computation, or consideration.

31

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  1         (41)  An applicant or licensee has pressured, required

  2  or, coerced, or attempted to require or coerce, a motor

  3  vehicle dealer to establish or maintain exclusive facilities,

  4  personnel, display space, service areas, or customer areas, if

  5  any such requirements would be unreasonable in light of

  6  current economic conditions, would not otherwise be justified

  7  by reasonable business considerations, or would adversely

  8  affect the return on investment of a motor vehicle dealer.

  9  This subsection does not prohibit a licensee or applicant from

10  providing assistance, encouragement, or reward to a motor

11  vehicle dealer to remodel, recondition, or relocate its

12  existing facilities if such assistance, encouragement, or

13  reward is not determined on a per-vehicle basis and is

14  available to all motor vehicle dealers of the licensee's

15  line-make in this state.

16

17  A motor vehicle dealer who can demonstrate that a violation

18  of, or failure to comply with, any of the preceding provisions

19  by an applicant or licensee will or can adversely and

20  pecuniarily affect the complaining dealer, shall be entitled

21  to pursue all of the remedies, procedures, and rights of

22  recovery available under ss. 320.695 and 320.697.

23         Section 5.  Section 320.641, Florida Statutes, is

24  amended to read:

25         320.641  Discontinuations, cancellations, nonrenewals;

26  modifications, and replacements Unfair cancellation of

27  franchise agreements.--

28         (1)(a)  A An applicant or licensee shall give written

29  notice to the motor vehicle dealer and the department of the

30  licensee's intention to discontinue, cancel, or not fail to

31  renew a franchise agreement or of the licensee's intention to

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  1  modify a franchise or replace a franchise with a succeeding

  2  franchise, which modification or replacement will adversely

  3  alter the rights or obligations of a motor vehicle dealer

  4  under an existing franchise agreement or will substantially

  5  impair the sales, service obligations, or investment of the

  6  motor vehicle dealer, at least 90 days before the effective

  7  date thereof, together with the specific grounds for such

  8  action. Any motor vehicle dealer that receives a notice from

  9  the licensee of its intent to discontinue, cancel, or not

10  renew the motor vehicle dealer's franchise agreement may,

11  within 90 days after the notice is given, file a petition or

12  complaint for a determination of whether such action is unfair

13  or prohibited. In any such action, the licensee has the burden

14  of establishing that such action is fair and not prohibited.

15  Agreements and certificates of appointment shall continue in

16  effect until final determination of the issues raised in the

17  dealer's petition or complaint.

18         (b)  Final determination must include the exhaustion of

19  all appellate remedies by the licensee or motor vehicle

20  dealer.  Until such final determination is made, the franchise

21  agreement remains in full force and effect, and the motor

22  vehicle dealer retains all rights and remedies pursuant to the

23  terms and conditions of the franchise agreement and applicable

24  law, including, but not limited to, full rights of transfer

25  under s. 320.643.  If a transfer is approved by the licensee

26  or mandated by law, the termination proceeding shall be

27  dismissed with prejudice as moot. If a transfer is proposed

28  under this section after a notice of intent to discontinue,

29  cancel, or not renew is received but before the final

30  determination is made, including exhaustion of all appellate

31  remedies of a motor dealer's complaint or petition contesting

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  1  such an action, the termination proceedings must be stayed,

  2  without bond, during the period that the transfer is being

  3  reviewed by the licensee under s. 320.643. During the period

  4  when the transfer is being reviewed by the licensee under s.

  5  320.643, the franchise agreement remains in full force and

  6  effect, and the motor vehicle dealer retains all rights and

  7  remedies pursuant to the terms and conditions of the franchise

  8  agreement and applicable law, including all rights of transfer

  9  until the licensee has accepted or rejected the proposed

10  transfer.  If the proposed transfer is rejected, the motor

11  vehicle dealer retains all its rights under s. 320.643 to an

12  administrative determination as to whether the licensee's

13  rejection is in compliance with s. 320.643, and, during the

14  pendency of any such administrative proceeding and any related

15  appellate proceedings, the termination proceedings remain

16  stayed without bond, the franchise agreement remains in full

17  force and effect, and the motor vehicle dealer retains all

18  rights and remedies pursuant to the terms and conditions of

19  the franchise agreement and applicable law. If a transfer is

20  approved by the licensee or mandated by law, the termination

21  proceedings shall be dismissed with prejudice as moot.

22         (c)  A discontinuation, cancellation, or nonrenewal of

23  a franchise agreement is prohibited if compliance by the motor

24  vehicle dealer with the provisions of the franchise agreement

25  upon which the discontinuation, cancellation, or nonrenewal is

26  based would violate applicable law or is based on licensee's

27  conduct that is prohibited by applicable law.

28         (d)1.  A discontinuation, cancellation, or nonrenewal

29  of a franchise agreement is unfair unless the licensee proves

30  by clear and convincing evidence all of the following:

31

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  1         a.  The discontinuation, cancellation, or nonrenewal is

  2  clearly permitted by the franchise agreement, including the

  3  enforceability of the provision from a public policy

  4  standpoint, including, without limitation, oppression,

  5  adhesion, and relative bargaining power of the parties;

  6         b.  The discontinuation, cancellation, or nonrenewal is

  7  undertaken in good faith;

  8         c.  The discontinuation, cancellation, or nonrenewal is

  9  undertaken for good cause; and

10         d.  The discontinuation, cancellation, or nonrenewal is

11  based on a breach of the franchise agreement which is, in

12  fact, a material and substantial breach.

13         2.  For the purposes of termination, good faith

14  includes, but is not limited to, all of the existing

15  circumstances and proof that the provisions or standards

16  relied upon by the licensee to establish grounds for

17  termination are in writing, are reasonable, and have been

18  applied by the licensee in a uniform, consistent, and

19  nondiscriminatory manner, considering action taken by the

20  licensee when similar conduct has been committed by other

21  motor vehicle dealers, and that the licensee has not breached

22  any of its obligations.

23         3.  For purposes of discontinuation, cancellation, or

24  nonrenewal, good cause is not established solely by proof of a

25  breach of the franchise agreement, even if material and

26  substantial, or by the desire of the licensee for market

27  penetration; rather, the licensee must establish by clear and

28  convincing evidence that the motor vehicle dealer has caused

29  damage to the licensee through action that is substantially

30  and significantly detrimental to the licensee's business

31  interests, independent of and distinct from the terms and

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  1  conditions of the franchise agreement. A material and

  2  substantial breach must be substantially damaging to the

  3  products or services offered by the licensee or to the

  4  reputation of the licensee or its products or services.

  5         (e)  Notwithstanding any other provision of this

  6  subsection or the terms of any franchise agreement, if the

  7  termination is based on alleged deficient or inadequate sales

  8  performance, service performance, or facilities, the licensee

  9  must provide to the motor vehicle dealer a reasonable

10  opportunity to cure any such alleged deficiencies. Such a

11  reasonable opportunity must extend not less than 6 months

12  prior to serving a notice of intent to terminate.

13         (f)  Notwithstanding any other provision of this

14  subsection or the terms of any franchise agreement, a

15  franchise agreement of any motor vehicle dealer may not be

16  terminated, canceled, discontinued, or not renewed by any

17  licensee on the basis of fraud unless the licensee proves by

18  clear and convincing evidence that the person designated as

19  dealer-operator or dealer-principal in the franchise agreement

20  had actual knowledge of the fraud at the time it was

21  perpetrated on a customer or a licensee, or failed within a

22  reasonable time after being advised of the fraud to take

23  actions reasonably calculated to prevent such fraud from

24  continuing or reoccurring.

25         (g)  In any action for discontinuation, cancellation,

26  or nonrenewal of a franchise agreement, evidence of a dealer's

27  conduct, including, but not limited to, any remedial measures

28  taken by the dealer up to the time of commencement of the

29  final hearing, is admissible up to the time of the

30  commencement of hearing.

31

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  1         (2)(a)  A licensee must give written notice to the

  2  motor vehicle dealer and the department of the licensee's

  3  intention to modify a franchise or replace a franchise with a

  4  succeeding franchise when such modification or replacement may

  5  adversely alter the rights or obligations of a motor vehicle

  6  dealer under an existing franchise agreement or may

  7  substantially impair the sales, service obligations, or

  8  investment of the motor vehicle dealer. This written notice

  9  must be given at least 90 days before the effective date of

10  the modification, together with the specific grounds for the

11  action.

12         (b)  Any motor vehicle dealer that receives a notice

13  from the licensee of its intent to modify or replace the motor

14  vehicle dealer's franchise agreement may, within the 90-day

15  notice period, file a petition or complaint for a

16  determination of whether any modification or replacement

17  provision is unfair or prohibited. In any such action, the

18  licensee has the burden of establishing, by clear and

19  convincing evidence, that the action is fair and is not

20  prohibited. In addition to any express changes to a franchise

21  agreement, modifications include, but are not limited to, any

22  attempt by the licensee, by conduct, contract, or otherwise,

23  to implement or enforce or attempt to implement or enforce

24  upon its motor vehicle dealers any policy, procedure,

25  standard, memorandum, addendum, or requirement, other than one

26  required by applicable law, which is a change of the

27  licensee's current practice, policy, or procedure. Agreements

28  and certificates of appointment continue in effect until final

29  determination of the issues raised in such a petition or

30  complaint by the motor vehicle dealer.

31

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  1         (c)  Final determination includes exhaustion of all

  2  appellate remedies by the licensee or motor vehicle dealer.

  3  Until such final determination is made, the franchise

  4  agreement remains in full force and effect, and the terms and

  5  conditions of the existing franchise agreement, prior to the

  6  attempted modification or replacement, remain in full force

  7  and effect.  If it is finally determined that a licensee has a

  8  right to modify or replace the franchise agreement, the

  9  modification or replacement shall take effect prospectively

10  and only after final determination, including exhaustion of

11  all appellate remedies in favor of the licensee.

12         (d)  A modification or replacement of a franchise

13  agreement is prohibited if any provision itself or the conduct

14  necessary to comply with the provision would violate

15  applicable law.

16         (e)  A modification or replacement provision of a

17  franchise agreement is unfair if it is not clearly permitted

18  by the franchise agreement, is not undertaken in good faith,

19  is not undertaken for good cause, fails to take into account

20  the investment of a motor vehicle dealer in the franchise and

21  will unreasonably adversely affect the return on such

22  investment, is inconsistent with or in violation of any

23  provision of ss. 320.60-320.70, fails to provide that, in any

24  dispute between a licensee and a motor vehicle dealer in any

25  forum, the law of this state applies, both substantively and

26  procedurally, or is undertaken without regard to the equities

27  of the motor vehicle dealer.  For purposes of modification or

28  replacement, good faith includes, but is not limited to, proof

29  that the licensee is not taking unwarranted or

30  disproportionate advantage of any of its motor vehicle dealers

31  given the lack of relative bargaining power of the parties.

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  1  For purposes of modification or replacement, good cause

  2  includes, but is not limited to, proof of a material and

  3  substantial change in circumstances since the execution of the

  4  franchisee agreement which warrants the modification or

  5  replacement and does not cause significant detriment to any of

  6  the licensee's motor vehicle dealers.

  7         (b)  The failure by the licensee to comply with the

  8  90-day notice period and procedure prescribed herein shall

  9  render voidable, at the option of the motor vehicle dealer,

10  any discontinuation, cancellation, nonrenewal, modification,

11  or replacement of any franchise agreement.  Designation of a

12  franchise agreement at a specific location as a "nondesignated

13  point" shall be deemed an evasion of this section and

14  constitutes an unfair cancellation.

15         (2)  Franchise agreements are deemed to be continuing

16  unless the applicant or licensee has notified the department

17  of the discontinuation of, cancellation of, failure to renew,

18  modification of, or replacement of the agreement of any of its

19  motor vehicle dealers; and annual renewal of the license

20  provided for under ss. 320.60-320.70 is not necessary for any

21  cause of action against the licensee.

22         (3)  Any motor vehicle dealer whose franchise agreement

23  is discontinued, canceled, not renewed, modified, or replaced

24  may, within the 90-day notice period, file a petition or

25  complaint for a determination of whether such action is an

26  unfair or prohibited discontinuation, cancellation,

27  nonrenewal, modification, or replacement.  Agreements and

28  certificates of appointment shall continue in effect until

29  final determination of the issues raised in such petition or

30  complaint by the motor vehicle dealer.  A discontinuation,

31  cancellation, or nonrenewal of a franchise agreement is unfair

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  1  if it is not clearly permitted by the franchise agreement; is

  2  not undertaken in good faith; is not undertaken for good

  3  cause; or is based on an alleged breach of the franchise

  4  agreement which is not in fact a material and substantial

  5  breach.

  6         (3)(4)  Notwithstanding any other provision of this

  7  section, the failure of a motor vehicle dealer to be engaged

  8  in business with the public for 10 consecutive business days

  9  constitutes abandonment by the dealer of his or her franchise

10  agreement. If any motor vehicle dealer abandons his or her

11  franchise agreement, he or she has no cause of action under

12  this section. For the purpose of this section, a dealer shall

13  be considered to be engaged in business with the public if a

14  sales and service facility is open and is performing such

15  services 8 hours a day, 5 days a week, excluding holidays.

16  However, it will not be considered abandonment if such a

17  failure to engage in business is due to an act of God, a work

18  stoppage, or a delay due to a strike or labor difficulty, a

19  freight embargo, or other cause over which the motor vehicle

20  dealer has no control, including any violation of ss.

21  320.60-320.70.

22         (4)(5)  Notwithstanding any other provision of this

23  section, if a motor vehicle dealer has abandoned his or her

24  franchise agreement as provided in subsection (3)(4), the

25  licensee may give written notice to the dealer and the

26  department of the licensee's intention to discontinue, cancel,

27  or fail to renew the franchise agreement with the dealer at

28  least 15 days before the effective date thereof, specifying

29  the grounds for such action.  A motor vehicle dealer receiving

30  such notice may file a petition or complaint for determination

31

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  1  of whether in fact there has been an abandonment of the

  2  franchise.

  3         (5)(6)  If the complainant motor vehicle dealer

  4  prevails, he or she shall have a cause of action against the

  5  licensee for reasonable attorneys' fees and costs incurred by

  6  him or her in such proceeding, and he or she shall have a

  7  cause of action under s. 320.697.

  8         (6)(7)  Except as provided in s. 320.643, no

  9  replacement motor vehicle dealer shall be named for this point

10  or location to engage in business prior to the final

11  adjudication by the department on the petition or complaint

12  and the exhaustion of all appellate remedies by the canceled

13  or discontinued dealer, if a stay is issued by either the

14  department or an appellate court.

15         Section 6.  Subsections (2) and (3) of section 320.642,

16  Florida Statutes, are amended to read:

17         320.642  Dealer licenses in areas previously served;

18  procedure.--

19         (2)(a)  An application for a motor vehicle dealer

20  license in any community or territory shall be denied when:

21         1.  A timely protest is filed by a presently existing

22  franchised motor vehicle dealer with standing to protest as

23  defined in subsection (3); and

24         2.  The licensee fails to show that the existing

25  franchised dealer or dealers who register new motor vehicle

26  retail sales or retail leases of the same line-make in the

27  community or territory of the proposed dealership are not

28  providing adequate representation of such line-make motor

29  vehicles in such community or territory.  The burden of proof

30  in establishing inadequate representation shall be on the

31  licensee.

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  1         (b)  In determining whether the existing franchised

  2  motor vehicle dealer or dealers are providing adequate

  3  representation in the community or territory for the

  4  line-make, the department may consider evidence which may

  5  include, but is not limited to:

  6         1.  The impact of the establishment of the proposed or

  7  relocated dealer on the consumers, public interest, existing

  8  dealers, and the licensee; provided, however, that financial

  9  impact may only be considered with respect to the protesting

10  dealer or dealers.

11         2.  The size and permanency of investment reasonably

12  made and reasonable obligations incurred by the existing

13  dealer or dealers to perform their obligations under the

14  dealer agreement.

15         3.  The reasonably expected market penetration of the

16  line-make motor vehicle for the community or territory

17  involved, after consideration of all factors which may affect

18  said penetration, including, but not limited to, demographic

19  factors such as age, income, import penetration, education,

20  size class preference, product popularity, retail lease

21  transactions, or other factors affecting sales to consumers of

22  the community or territory. Furthermore, with respect to

23  evaluating the performance of the line-make within the

24  community or territory, a geographic area used for making

25  comparisons must be reasonably similar in demographic traits

26  to the community or territory, including age, income, import

27  penetration, education, size class preference, and product

28  popularity, and such comparison areas may not be smaller than

29  an entire county.  Reasonably expected market penetration must

30  be measured with respect to the community or territory as a

31

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  1  whole and not with respect to any part thereof or identifiable

  2  plot therein.

  3         4.  Any actions by the licensees in denying its

  4  existing dealer or dealers of the same line-make the

  5  opportunity for reasonable growth, market expansion, or

  6  relocation, including the availability of line-make vehicles

  7  in keeping with the reasonable expectations of the licensee in

  8  providing an adequate number of dealers in the community or

  9  territory.

10         5.  Any attempts by the licensee to coerce the existing

11  dealer or dealers into consenting to additional or relocated

12  franchises of the same line-make in the community or

13  territory.

14         6.  Distance, travel time, traffic patterns, and

15  accessibility between the existing dealer or dealers of the

16  same line-make and the location of the proposed additional or

17  relocated dealer.

18         7.  Whether benefits to consumers will likely occur

19  from the establishment or relocation of the dealership which

20  the protesting dealer or dealers prove cannot be obtained by

21  other geographic or demographic changes or expected changes in

22  the community or territory.

23         8.  Whether the protesting dealer or dealers are in

24  substantial compliance with their dealer agreement.

25         9.  Whether there is adequate interbrand and intrabrand

26  competition with respect to said line-make in the community or

27  territory and adequately convenient consumer care for the

28  motor vehicles of the line-make, including the adequacy of

29  sales and service facilities.

30         10.  Whether the establishment or relocation of the

31  proposed dealership appears to be warranted and justified

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  1  based on economic and marketing conditions pertinent to

  2  dealers competing in the community or territory, including

  3  anticipated future changes.

  4         11.  The volume of registrations and service business

  5  transacted by the existing dealer or dealers of the same

  6  line-make in the relevant community or territory of the

  7  proposed dealership.

  8         (3)  An existing franchised motor vehicle dealer or

  9  dealers shall have standing to protest a proposed additional

10  or relocated motor vehicle dealer where the existing motor

11  vehicle dealer or dealers have a franchise agreement for the

12  same line-make vehicle to be sold or serviced by the proposed

13  additional or relocated motor vehicle dealer and are

14  physically located so as to meet or satisfy any of the

15  following requirements or conditions:

16         (a)  If the proposed additional or relocated motor

17  vehicle dealer is to be located in a county with a population

18  of less than 300,000 according to the most recent data of the

19  United States Census Bureau or the data of the Bureau of

20  Economic and Business Research of the University of Florida:

21         1.  The proposed additional or relocated motor vehicle

22  dealer is to be located in the area designated or described as

23  the area of responsibility, or such similarly designated area,

24  including the entire area designated as a multiple-point area,

25  in the franchise agreement or in any related document or

26  commitment with the existing motor vehicle dealer or dealers

27  of the same line-make as such agreement existed upon October

28  1, 1988;

29         2.  The existing motor vehicle dealer or dealers of the

30  same line-make have a licensed franchise location within a

31

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  1  radius of 20 miles of the location of the proposed additional

  2  or relocated motor vehicle dealer; or

  3         3.  Any existing motor vehicle dealer or dealers of the

  4  same line-make can establish that during any 12-month period

  5  of the 36-month period preceding the filing of the licensee's

  6  application for the proposed dealership, such dealer or its

  7  predecessor made 25 percent of its retail sales of new motor

  8  vehicles to persons whose registered household addresses were

  9  located within a radius of 20 miles of the location of the

10  proposed additional or relocated motor vehicle dealer;

11  provided such existing dealer is located in the same county or

12  any county contiguous to the county where the additional or

13  relocated dealer is proposed to be located.

14         (b)  If the proposed additional or relocated motor

15  vehicle dealer is to be located in a county with a population

16  of more than 300,000 according to the most recent data of the

17  United States Census Bureau or the data of the Bureau of

18  Economic and Business Research of the University of Florida:

19         1.  Any existing motor vehicle dealer or dealers of the

20  same line-make have a licensed franchise location within a

21  radius of 12.5 miles of the location of the proposed

22  additional or relocated motor vehicle dealer; or

23         2.  Any existing motor vehicle dealer or dealers of the

24  same line-make can establish that during any 12-month period

25  of the 36-month period preceding the filing of the licensee's

26  application for the proposed dealership, such dealer or its

27  predecessor made 25 percent of its retail sales of new motor

28  vehicles to persons whose registered household addresses were

29  located within a radius of 12.5 miles of the location of the

30  proposed additional or relocated motor vehicle dealer;

31  provided such existing dealer is located in the same county or

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  1  any county contiguous to the county where the additional or

  2  relocated dealer is proposed to be located.

  3         Section 7.  Section 320.643, Florida Statutes, is

  4  amended to read:

  5         320.643  Transfer, assignment, or sale of franchise

  6  agreements.--

  7         (1)  A motor vehicle dealer shall not transfer, assign,

  8  or sell a franchise agreement to another person unless the

  9  dealer first notifies the licensee of the dealer's decision to

10  make such transfer, by written notice setting forth the

11  prospective transferee's name, address, and financial

12  qualifications qualification, and business experience during

13  the previous 5 years.  The licensee shall, in writing, within

14  60 days after receipt of such notice, inform the dealer either

15  of the licensee's approval of the transfer, assignment, or

16  sale or of the unacceptability of the proposed transferee,

17  setting forth the material reasons for the rejection.  If the

18  licensee does not so inform the dealer within the 60-day

19  period, its approval of the proposed transfer is deemed

20  granted.  No Such a transfer, assignment, or sale is invalid

21  will be valid unless the transferee agrees in writing to

22  comply with all requirements of the franchise then in effect;

23  however, proposing to relocate or change executive management,

24  or to do both, in conjunction with the proposed transfer, does

25  not constitute a failure to agree to comply with all the

26  requirements of the franchise then in effect. Notwithstanding

27  the terms of any franchise agreement, the acceptance by the

28  licensee of the proposed transferee shall not be unreasonably

29  withheld. For the purposes of this section, the refusal by the

30  licensee to accept a proposed transferee who is of good moral

31  character and who otherwise meets the written, reasonable, and

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  1  uniformly applied standards or qualifications, if any, of the

  2  licensee relating to financial qualifications the business

  3  experience of executive management required by the licensee of

  4  its motor vehicle dealers is presumed to be unreasonable.  A

  5  licensee who receives such notice may, within 60 days

  6  following such receipt, file with the department a verified

  7  complaint for a determination that the proposed transferee is

  8  not a person qualified to be a transferee under this section.

  9  The licensee has the burden of proof with respect to all

10  issues raised by such verified complaint.  The department

11  shall determine, and enter an order providing, that the

12  proposed transferee is either qualified or is not and cannot

13  be qualified for specified reasons, or the order may provide

14  the conditions under which a proposed transferee would be

15  qualified. If the licensee fails to file such verified

16  complaint within such 60-day period or if the department,

17  after a hearing, dismisses the complaint or renders a decision

18  other than one disqualifying the proposed transferee, the

19  franchise agreement between the motor vehicle dealer and the

20  licensee shall be deemed amended to incorporate such transfer

21  or amended in accordance with the determination and order

22  rendered, effective upon compliance by the proposed transferee

23  with any conditions set forth in the determination or order.

24         (2)(a)  Notwithstanding the terms of any franchise

25  agreement, a licensee shall not, by contract or otherwise,

26  fail or refuse to give effect to, prevent, prohibit, or

27  penalize, or attempt to refuse to give effect to, prevent,

28  prohibit, or penalize, any motor vehicle dealer or any

29  proprietor, partner, stockholder, owner, or other person who

30  holds or otherwise owns an interest therein from selling,

31  assigning, transferring, alienating, or otherwise disposing

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  1  of, in whole or in part, the equity interest of any of them in

  2  such motor vehicle dealer to any other person or persons,

  3  including a corporation established or existing for the

  4  purpose of owning or holding the stock or ownership interests

  5  of other entities, unless the licensee proves at a hearing

  6  pursuant to this section that such sale, transfer, alienation,

  7  or other disposition is to a person who is not, or whose

  8  controlling executive management is not, of good moral

  9  character.  A motor vehicle dealer, or any proprietor,

10  partner, stockholder, owner, or other person who holds or

11  otherwise owns an interest in the motor vehicle dealer, who

12  desires to sell, assign, transfer, alienate, or otherwise

13  dispose of any interest in such motor vehicle dealer shall

14  notify, or cause the proposed transferee to so notify, the

15  licensee, in writing, of the identity and address of the

16  proposed transferee.  A licensee who receives such notice may,

17  within 60 days following such receipt, file with the

18  department a verified complaint for a determination that the

19  proposed transferee is not a person qualified to be a

20  transferee under this section.  The licensee has the burden of

21  proof with respect to all issues raised by such verified

22  complaint.  The department shall determine, and enter an order

23  providing, that the proposed transferee either is qualified or

24  is not and cannot be qualified for specified reasons; or the

25  order may provide the conditions under which a proposed

26  transferee would be qualified. If the licensee fails to file

27  such verified complaint within such 60-day period or if the

28  department, after a hearing, dismisses the complaint or

29  renders a decision other than one disqualifying the proposed

30  transferee, the franchise agreement between the motor vehicle

31  dealer and the licensee shall be deemed amended to incorporate

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  1  such transfer or amended in accordance with the determination

  2  and order rendered, effective upon compliance by the proposed

  3  transferee with any conditions set forth in the determination

  4  or order.

  5         (b)  During the pendency of any such hearing, the

  6  franchise agreement of the motor vehicle dealer shall continue

  7  in effect in accordance with its terms.  The department shall

  8  expedite any determination requested under this section.

  9         (3)(a)  When a transfer is proposed which is contingent

10  upon a proposed relocation, the licensee may turn down the

11  proposed transfer only if the proposed relocation would be

12  subject to protest under s. 320.642 or if the proposed

13  facilities do not satisfy the licensee's reasonable, written,

14  and uniformly applied facility guidelines.

15         (b) When a change of executive management is proposed

16  in conjunction with a proposed transfer under this section, a

17  licensee may reject the proposed change in executive

18  management consistent with s. 320.644. The licensee may not

19  turn down a proposed transfer under either s. 320.643 (1) or

20  s. 320.643 (2) because a proposed change of executive

21  management under s. 320.644 is made in conjunction with the

22  proposed transfer.

23         (4)  Notwithstanding the terms of a franchise

24  agreement, a licensee does not have and may not exercise a

25  right of first refusal with respect to any proposed transfer

26  of a franchise agreement or the ownership of a motor vehicle

27  dealer governed by ss. 320.60-320.70, and any such right of

28  first refusal set forth in a franchise agreement is null and

29  void and of no force and effect.

30         Section 8.  Section 320.645, Florida Statutes, is

31  amended to read:

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  1         320.645  Restriction upon ownership of dealership by

  2  licensee.--

  3         (1)  A No licensee, including a manufacturer or agent

  4  of a manufacturer, or any parent, subsidiary, common entity,

  5  or officer or representative of the licensee may not shall

  6  own, control, or operate, either directly or indirectly, a

  7  motor vehicle dealership in this state for the sale or service

  8  of motor vehicles that which have been or are offered for sale

  9  under a franchise agreement with a motor vehicle dealer in

10  this state, nor is such a licensee eligible for a motor

11  vehicle dealer' license under s. 320.27. Notwithstanding any

12  other provisions of this subsection, a licensee: However, no

13  such licensee will be deemed to be in violation of this

14  section:

15         (a)  May operate when operating a motor vehicle

16  dealership for a temporary period, not to exceed 1 year,

17  during the transition from one independent owner of the motor

18  vehicle dealership to another independent owner;

19         (b)  For the purpose of broadening the diversity of its

20  dealer body and enhancing opportunities for qualified persons

21  who are part of a group who have historically been

22  underrepresented in its dealer body, or to help fund other

23  qualified persons who lack sufficient resources to purchase or

24  capitalize a dealership outright, but for no other purpose, a

25  licensee may temporarily own an interest in a dea1ership When

26  operating a motor vehicle dealership temporarily for a

27  reasonable period, not to exceed 1 year, or in a bona fide

28  relationship with an independent person, other than a

29  licensee, its parent, subsidiary, or its agent, common entity,

30  or affiliate, who is to be the other equity participant

31  ("dealer development arrangement") and has made a significant

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  1  investment that is subject to loss in the dealership and who

  2  can reasonably expect, and has a bona-fide agreement,  to

  3  acquire full ownership of the dealership on reasonable terms

  4  and conditions; or

  5         (c)  May own and operate a motor vehicle dealership if

  6  the department determines, after a hearing on the matter,

  7  pursuant to chapter 120, at the request of any person, that

  8  there is no independent person available in the community or

  9  territory to own and operate the motor vehicle dealership in a

10  manner consistent with the public interest.

11

12  (2)(a)  In any such case described in paragraphs (1)(a) and

13  (c), the licensee must continue to make the motor vehicle

14  dealership available for sale to an independent person at a

15  fair and reasonable price. Approval of the sale of such a

16  motor vehicle dealership to a proposed motor vehicle dealer

17  shall not be unreasonably withheld, delayed, or conditioned.

18         (b)  In any case described in paragraph (1)(b), the

19  licensee shall certify, in writing, to the department that the

20  provisions of that paragraph have been satisfied and complied

21  with and that the dealer development arrangement is bona fide

22  and is not an attempt by the licensee to own, operate, or

23  control one or more dealerships in this state.

24         (3)  At any time, the department or any person, under

25  s. 320.695, may file an action to determine whether a dealer

26  development arrangement is bona fide and in compliance with

27  paragraphs (1)(b) and (2)(b).  If it is determined that the

28  arrangement is not bona fide or otherwise does not meet the

29  statutory requirements, the department shall take such steps

30  as it considers necessary, including, without limitation,

31  subjecting the licensee to sanctions as provided in s. 320.64,

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  1  and refusing to issue, suspending, or revoking, the dealer

  2  license issued to the dealer development arrangement

  3  dealership.

  4         (4) Notwithstanding the terms of any franchise

  5  agreement, a licensee, affiliate, or common entity that

  6  temporarily owns, pursuant to paragraph(1)(a), paragraph

  7  (1)(b), or paragraph (1)(c), in whole or in part, directly or

  8  indirectly, an interest in a motor vehicle dealer, may not, in

  9  any manner, discriminate against any other franchised motor

10  vehicle dealer in the same line-make in any matter governed by

11  the franchise agreement or applicable law, including, without

12  limitation, the execution or implementation of all policies,

13  programs, benefits, and incentives, and the sale and

14  allocation of new motor vehicles to its franchised motor

15  vehicle dealers.

16         (5)  The department may subpoena and require such

17  documents and information as it considers necessary in

18  determining any issue under this section.

19         (6)  As used in paragraph (1)(b), the term:

20         (a)  "Independent person" means an individual who is

21  not an officer, director, agent, or employee of the licensee,

22  or of its parent, subsidiary, agent, or common entity, or

23  otherwise associated with the licensee through any agreement

24  or understanding other than the franchise agreement for the

25  "dealer development arrangement," and who has no other direct

26  or indirect equity interest in another "dealer development

27  arrangement" with the licensee.

28         (b)  "Significant investment" means a substantial

29  amount of money personally invested by the independent person

30  as part of the initial investment in the dealership, but not

31  less than 6 percent of the investment, considering the fair

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  1  market value of the dealer development arrangement dealership,

  2  which money was acquired and obtained from sources other than

  3  the licensee or any of its affiliates or common entities and

  4  is not encumbered by the independent person's interest in the

  5  dealership.  In determining fair market value, if the

  6  ownership of the dealership has been transferred within the

  7  prior 12 months, that purchase price is evidence of the fair

  8  market value; otherwise, one or more independent appraisals

  9  must be produced by the licensee.  The department may require

10  such documents and information from the licensee and

11  independent person as it considers necessary.

12         (c)  "Reasonable terms and conditions" means that the

13  profits from dealership operations will be sufficient to allow

14  full ownership of the dealership by the independent person

15  within a reasonable time period not to exceed 10 years,

16  absent exceptional circumstances demonstrated  by the

17  independent person or the licensee; the independent person has

18  sufficient control to permit acquisition of ownership; and the

19  dealer development arrangement cannot be terminated by the

20  licensee to avoid full ownership by the independent person.

21  The terms and conditions of the agreement must permit the

22  independent person to accomplish an expedited purchase of the

23  dealership at any time without premium or penalty from a

24  source other than profits from dealership operation.

25         (7)(2)  This section shall not be construed to prohibit

26  any licensee from owning or operating a motor vehicle

27  dealership in this state if such dealership was owned or

28  operated by the licensee on May 31, 1984.

29         (8)  This section does not apply to any dealership that

30  is owned, controlled, or operated by a licensee on July 1,

31  2001.

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  1         Section 9.  Section 320.695, Florida Statutes, is

  2  amended to read:

  3         320.695  Injunction.--In addition to the remedies

  4  provided in this chapter, and notwithstanding the existence of

  5  any adequate remedy at law, the department, or any motor

  6  vehicle dealer, or any person in the name of the department

  7  and state and for the use and benefit of the motor vehicle

  8  dealer or person, is authorized to make application to any

  9  circuit court of the state for the grant, upon a hearing and

10  for cause shown, of a temporary or permanent injunction, or

11  both, restraining any person from acting as a licensee under

12  the terms of ss. 320.60-320.70 without being properly licensed

13  hereunder, or from violating, or continuing to violate, or

14  threatening to violate any of the provisions of ss.

15  320.60-320.70, or from failing or refusing to comply with the

16  requirements of this law or any rule or regulation adopted

17  hereunder.  Such an injunction shall be issued without bond.

18  A single act in violation of the provisions of ss.

19  320.60-320.70 shall be sufficient to authorize the issuance of

20  an injunction, without regard to whether an adequate remedy

21  exists at law or whether irreparable injury will result

22  without an injunction, or whether the likelihood of success on

23  the merits favors the motor vehicle dealer or such person, or

24  whether the balancing of the equities favors the motor vehicle

25  dealer or such person. However, this statutory remedy shall

26  not be applicable to any motor vehicle dealer after final

27  determination by the department under s. 320.641(3). Upon the

28  request of the department, the Attorney General shall

29  institute suit for and represent the department.

30         Section 10.  Section 320.699, Florida Statutes, is

31  amended to read:

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  1         320.699  Administrative hearings and adjudications;

  2  procedure.--

  3         (1)  A motor vehicle dealer, or person with

  4  entitlements to or in a motor vehicle dealer, who is directly

  5  and adversely affected by the action or conduct of an

  6  applicant or licensee which is alleged to be in violation of

  7  any provision of ss. 320.60-320.70, may seek a declaration and

  8  adjudication of its rights with respect to the alleged action

  9  or conduct of the applicant or licensee by:

10         (a)  Filing with the department a request for a

11  proceeding and an administrative hearing which conforms

12  substantially with the requirements of ss. 120.569 and 120.57;

13  or

14         (b)  Filing with the department a written objection or

15  notice of protest pursuant to s. 320.642.

16         (2)  If a written objection or notice of protest is

17  filed with the department under paragraph (1)(b), a hearing

18  must shall be held no sooner than 240 days after within 180

19  days of the date of filing of the first objection or notice of

20  protest. This, unless the time may be is extended by the

21  administrative law judge hearing officer for good cause shown.

22  If a hearing is not scheduled within said time, any party may

23  request such hearing which shall be held forthwith by the

24  hearing officer.

25         Section 11.  If a provision of this act or its

26  application to any person or circumstance is held invalid, the

27  invalidity does not affect other provisions or applications of

28  the act which can be given effect without the invalid

29  provision or application, and to this end the provisions of

30  this act are declared severable.

31         Section 12.  This act shall take effect July 1, 2001.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Amends provisions relating to motor vehicle dealer
      franchise agreements. Revises definitions used in ss.
  4    320.61-320.70, F.S. Amends procedures to be followed when
      a complaint of unfair cancellation of a dealer agreement
  5    has been made by a motor vehicle dealer against a
      licensee. Defines the term "final decision." Provides
  6    that the terms and conditions of a franchise agreement
      must comply with ss. 320.60-320.70, F.S., or they are
  7    unenforceable. Prohibits licensees from performing
      certain acts and provides penalties for violations.
  8    Provides procedures relating to discontinuations,
      cancellations, nonrenewals, modifications, and
  9    replacements of franchise agreements. Amends procedures
      for establishing an additional motor vehicle dealer who
10    deals in a specific line-make in an area that is already
      served by another such dealer. Amends provisions relating
11    to the transfer, assignment, or sale of franchise
      agreements. Amends provisions relating to restrictions
12    upon a licensee's owning a dealership. Provides for
      "dealer development arrangements." Provides powers of the
13    Department of Highway Safety and Motor Vehicles. Amends
      procedures for enjoining a person from acting as a
14    licensee under ss. 320.60-320.70, F.S., without being
      properly licensed or from violating those statutes or
15    rules adopted thereunder. Amends procedures for
      administrative hearings and adjudications relating to a
16    motor vehicle dealer's allegations of harm due to an
      applicant's or licensee's violation of ss. 320.60-320.70,
17    F.S. Provides for severability.

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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