Senate Bill sb2708

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 2708

    By Senator Sebesta





    16-1158-03                                         See HB 1159

  1                      A bill to be entitled

  2         An act relating to motor vehicle manufacturers,

  3         distributors, importers, and dealers; amending

  4         s. 320.13, F.S.; clarifying provisions for use

  5         of dealer license plates; amending s. 320.60,

  6         F.S.; clarifying definition of "motor vehicle"

  7         and defining the terms "service" and "certified

  8         preowned vehicle" for purposes of specified

  9         provisions; amending s. 320.64, F.S.;

10         prohibiting certain acts by licensee or

11         applicant; amending s. 320.642, F.S.; revising

12         provisions for evidence that an area is

13         adequately served; expanding grounds for

14         protest of proposed additional or relocated

15         motor vehicle dealer; amending s. 320.643,

16         F.S.; revising provisions relating to transfer,

17         assignment, or sale of franchise agreement;

18         prohibiting rejection or withholding of

19         approval by licensee; requiring condition be

20         met to protect the licensee from liability;

21         amending s. 320.644, F.S., relating to change

22         in executive management; defining "executive

23         management"; revising procedures for approval

24         or rejection of change; specifying that

25         termination of employment is not deemed a

26         change under the section; prohibiting rejection

27         or withholding of approval by licensee;

28         providing conditions for rejection or

29         withholding of approval by licensee; requiring

30         condition be met to protect the licensee from

31         liability; amending s. 320.695, F.S.; revising

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1         provisions relating to injunctive relief from

 2         violation of specified provisions regulating

 3         motor vehicle manufacturers, distributors,

 4         importers, and dealers; providing standing for

 5         described associations of dealers to seek

 6         injunctive relief; amending s. 320.699, F.S.;

 7         revising administrative hearing procedures for

 8         certain complaints; amending s. 501.976, F.S.,

 9         relating to actionable, unfair, or deceptive

10         acts or practices by a motor vehicle dealer;

11         revising specifications for representation by

12         dealer of vehicle as a demonstrator; amending

13         s. 817.7001, F.S.; revising the definition of

14         "credit service organization" to exclude

15         specified motor vehicle dealers for purposes of

16         provisions regulating such organizations;

17         providing an effective date.

18  

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

20  

21         Section 1.  Paragraph (a) of subsection (1) of section

22  320.13, Florida Statutes, is amended to read:

23         320.13  Dealer and manufacturer license plates and

24  alternative method of registration.--

25         (1)(a)  Any licensed motor vehicle dealer and any

26  licensed mobile home dealer may, upon payment of the license

27  tax imposed by s. 320.08(12), secure one or more dealer

28  license plates, which are valid for use on motor vehicles or

29  mobile homes owned by the dealer to whom such plates are

30  issued while the motor vehicles are in inventory and for sale,

31  or while being operated in connection with such dealer's

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  business, or while being operated by a dealer owner or

 2  executive or a family member of such dealer owner or

 3  executive, with the permission of the dealer, or while being

 4  operated for demonstration purposes, but are not valid for use

 5  for hire. Dealer license plates may not be used on any tow

 6  truck or wrecker unless the tow truck or wrecker is being

 7  demonstrated for sale, and the dealer license plates may not

 8  be used on a vehicle used to transport another motor vehicle

 9  for the motor vehicle dealer.

10         Section 2.  Subsection (10) of section 320.60, Florida

11  Statutes, is amended, and subsections (16) and (17) are added

12  to that section, to read:

13         320.60  Definitions for ss. 320.61-320.70.--Whenever

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

15  requires, the following words and terms have the following

16  meanings:

17         (10)  "Motor vehicle" means any new automobile,

18  motorcycle, or truck, including all trucks regardless of

19  weight, heavy trucks as defined in s. 320.01(10), and trucks

20  as defined in s. 320.01(9), the equitable or legal title to

21  which has never been transferred by a manufacturer,

22  distributor, importer, or dealer to an ultimate purchaser;

23  however, when legal title is not transferred but possession of

24  a motor vehicle is transferred pursuant to a conditional sales

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

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

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

28  motor vehicle, provided the selling motor vehicle dealer gives

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

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

31  

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




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

 2  dealer's file.

 3         (16)  "Service" means any maintenance, repair, or

 4  replacement of any part of any motor vehicle or used motor

 5  vehicle that is sold or provided to an owner, operator, or

 6  user pursuant to a service contract or motor vehicle warranty.

 7         (17)  "Certified preowned vehicle" refers to a used

 8  motor vehicle for which a licensee, manufacturer, or common

 9  entity has established criteria or standards, including

10  reconditioning, for certification of such used motor vehicle.

11         Section 3.  Subsection (33) is added to section 320.64,

12  Florida Statutes, to read:

13         320.64  Denial, suspension, or revocation of license;

14  grounds.--A license of a licensee under s. 320.61 may be

15  denied, suspended, or revoked within the entire state or at

16  any specific location or locations within the state at which

17  the applicant or licensee engages or proposes to engage in

18  business, upon proof that the section was violated with

19  sufficient frequency to establish a pattern of wrongdoing, and

20  a licensee or applicant shall be liable for claims and

21  remedies provided in ss. 320.695 and 320.697 for any violation

22  of any of the following provisions. A licensee is prohibited

23  from committing the following acts:

24         (33)  The applicant or licensee attempts to sell or

25  lease or sells or leases used motor vehicles at retail,

26  including certified preowned vehicles, of the line-make that

27  is the subject of any franchise agreement with a motor vehicle

28  dealer in this state.

29         (a)  No licensee or common entity, after enactment of

30  this subsection, shall include in any franchise agreement with

31  a motor vehicle dealer any obligation of the motor vehicle

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  dealer with respect to the sale or lease, or offering for sale

 2  or lease, of any used motor vehicle, including any certified

 3  preowned vehicle; however, a licensee may prescribe

 4  requirements for:

 5         1.  Facility space requirements for used vehicles.

 6         2.  A number of sales personnel for the sale or lease

 7  of used vehicles, provided such requirements are written,

 8  reasonable as to the market potential of each similarly sized

 9  motor vehicle dealer, and uniformly applied.

10         (b)  No licensee, by agreement or otherwise, in

11  connection with a motor vehicle dealer's sale or lease at

12  retail of any used vehicle, including any certified preowned

13  vehicle, shall require a motor vehicle dealer to issue to its

14  customer any extension of any original warranty or extended

15  service contract that overlaps, as to time, mileage, or

16  coverage, with the original warranty if the motor vehicle

17  dealer or customer must pay anything of value for such

18  extension or extended service contract.

19         (c)  No licensee, manufacturer, or common entity, after

20  enactment of this subsection, by agreement, program, or

21  otherwise, shall:

22         1.  Establish or continue any motor vehicle dealer

23  incentive, bonus, benefit, or other program; or

24         2.  Condition a motor vehicle dealer's eligibility for,

25  or receipt of, a bonus, incentive, or benefit

26  

27  which is based upon the dealer certifying, selling, or leasing

28  a prescribed or predetermined quantity of used motor vehicles,

29  including certified preowned vehicles.

30         (d)  No licensee shall:

31  

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1         1.  Establish any new motor vehicle sales planning

 2  volume for any motor vehicle dealer, regardless of the

 3  terminology used by a licensee to describe the quantity of new

 4  motor vehicles to be made available to the dealer from the

 5  licensee in any period;

 6         2.  Refuse a new motor vehicle dealer its fair share of

 7  new motor vehicle allocation; or

 8         3.  Fail or refuse to sell to a new motor vehicle

 9  dealer any new motor vehicles, if such planning volume,

10  allocation, failure, or refusal is based upon a dealer

11  selling, leasing, or certifying a quantity of used motor

12  vehicles, including certified preowned vehicles, prescribed by

13  the licensee.

14  

15  A motor vehicle dealer who can demonstrate that a violation

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

17  by an applicant or licensee will or can adversely and

18  pecuniarily affect the complaining dealer, shall be entitled

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

20  recovery available under ss. 320.695 and 320.697.

21         Section 4.  Paragraph (b) of subsection (2) and

22  subsection (3) of section 320.642, Florida Statutes, are

23  amended to read:

24         320.642  Dealer licenses in areas previously served;

25  procedure.--

26         (2)

27         (b)  In determining whether the existing franchised

28  motor vehicle dealer or dealers are providing adequate

29  representation in the community or territory for the

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

31  include, but is not limited to:

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




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

 2  relocated dealer on the consumers, public interest, existing

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

 4  impact may only be considered with respect to the protesting

 5  dealer or dealers.

 6         2.  The size and permanency of investment reasonably

 7  made and reasonable obligations incurred by the existing

 8  dealer or dealers to perform their obligations under the

 9  dealer agreement.

10         3.  The reasonably expected market penetration of the

11  line-make motor vehicle for the community or territory

12  involved, after consideration of all factors which may affect

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

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

15  size class preference, product popularity, retail lease

16  transactions, or other factors affecting sales to consumers of

17  the community or territory. Furthermore, with respect to any

18  geographic comparison area used to evaluate the performance of

19  the line-make within the community or territory, such

20  comparison area shall be reasonably similar in demographic

21  traits to the community or territory, including, but not

22  limited to, age, income, import penetration, education, size

23  class preference, and product popularity, and such comparison

24  area shall not be smaller than an entire county.  Reasonably

25  expected market penetration shall be measured with respect to

26  the community or territory as a whole and not with respect to

27  any part thereof or identifiable plot therein.

28         4.  Any actions by the licensees in denying its

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

30  opportunity for reasonable growth, market expansion, or

31  relocation, including the availability of line-make vehicles

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  in keeping with the reasonable expectations of the licensee in

 2  providing an adequate number of dealers in the community or

 3  territory.

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

 5  dealer or dealers into consenting to additional or relocated

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

 7  territory.

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

 9  accessibility between the existing dealer or dealers of the

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

11  relocated dealer.

12         7.  Whether benefits to consumers will likely occur

13  from the establishment or relocation of the dealership which

14  the protesting dealer or dealers prove cannot be obtained by

15  other geographic or demographic changes or expected changes in

16  the community or territory.

17         8.  Whether the protesting dealer or dealers are in

18  substantial compliance with their dealer agreement.

19         9.  Whether there is adequate interbrand and intrabrand

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

21  territory and adequately convenient consumer care for the

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

23  sales and service facilities.

24         10.  Whether the establishment or relocation of the

25  proposed dealership appears to be warranted and justified

26  based on economic and marketing conditions pertinent to

27  dealers competing in the community or territory, including

28  anticipated future changes.

29         11.  The volume of registrations and service business

30  transacted by the existing dealer or dealers of the same

31  

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




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

 2  proposed dealership.

 3         (3)  An existing franchised motor vehicle dealer or

 4  dealers shall have standing to protest a proposed additional

 5  or relocated motor vehicle dealer where the existing motor

 6  vehicle dealer or dealers have a franchise agreement for the

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

 8  additional or relocated motor vehicle dealer and are

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

10  following requirements or conditions:

11         (a)  If the proposed additional or relocated motor

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

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

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

15  Economic and Business Research of the University of Florida:

16         1.  The proposed additional or relocated motor vehicle

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

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

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

20  in the franchise agreement or in any related document or

21  commitment with the existing motor vehicle dealer or dealers

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

23  1, 1988;

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

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

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

27  or relocated motor vehicle dealer; or

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

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

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

31  application for the proposed dealership, such dealer or its

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




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

 2  vehicles to persons whose registered household addresses were

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

 4  proposed additional or relocated motor vehicle dealer;

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

 6  any county contiguous to the county where the additional or

 7  relocated dealer is proposed to be located.

 8         (b)  If the proposed additional or relocated motor

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

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

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

12  Economic and Business Research of the University of Florida:

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

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

15  radius of 12.5 miles of the location of the proposed

16  additional or relocated motor vehicle dealer; or

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

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

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

20  application for the proposed dealership, such dealer or its

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

22  vehicles to persons whose registered household addresses were

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

24  proposed additional or relocated motor vehicle dealer;

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

26  any county contiguous to the county where the additional or

27  relocated dealer is proposed to be located.

28         Section 5.  Section 320.643, Florida Statutes, is

29  amended to read:

30         320.643  Transfer, assignment, or sale of franchise

31  agreements.--

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




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

 2  or sell a franchise agreement to another person unless the

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

 4  make such transfer, by written notice setting forth the

 5  prospective transferee's name, address, financial

 6  qualification, and business experience during the previous 5

 7  years. The licensee shall, in writing, within 60 days after

 8  receipt of such notice, inform the dealer either of the

 9  licensee's approval of the transfer, assignment, or sale or of

10  the unacceptability of the proposed transferee, setting forth

11  the material reasons for the rejection. If the licensee does

12  not so inform the dealer within the 60-day period, its

13  approval of the proposed transfer is deemed granted. No such

14  transfer, assignment, or sale will be valid unless the

15  transferee agrees in writing to comply with all requirements

16  of the franchise then in effect. For the purposes of this

17  section, the refusal by the licensee to accept a proposed

18  transferee who is of good moral character and who otherwise

19  meets the written, reasonable, and uniformly applied standards

20  or qualifications, if any, of the licensee relating to

21  financial qualifications of the transferee and the business

22  experience of the transferee or the transferee's executive

23  management is presumed to be unreasonable. A motor vehicle

24  dealer whose proposed sale is rejected may, within 60 days

25  following such receipt of such rejection, file with the

26  department a complaint for a determination that the proposed

27  transferee has been rejected in violation of this section. The

28  licensee has the burden of proof with respect to all issues

29  raised by such complaint. The department shall determine, and

30  enter an order providing, that the proposed transferee is

31  either qualified or is not and cannot be qualified for

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  specified reasons, or the order may provide the conditions

 2  under which a proposed transferee would be qualified. If the

 3  licensee fails to file such a response to the motor vehicle

 4  dealer's complaint within 30 days after receipt of the

 5  complaint, unless the parties agree in writing to an

 6  extension, or if the department, after a hearing, renders a

 7  decision other than one disqualifying the proposed transferee,

 8  the franchise agreement between the motor vehicle dealer and

 9  the licensee shall be deemed amended to incorporate such

10  transfer or amended in accordance with the determination and

11  order rendered, effective upon compliance by the proposed

12  transferee with any conditions set forth in the determination

13  or order.

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

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

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

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

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

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

20  holds or otherwise owns an interest therein from selling,

21  assigning, transferring, alienating, or otherwise disposing

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

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

24  including a corporation established or existing for the

25  purpose of owning or holding the stock or ownership interests

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

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

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

29  controlling executive management is not, of good moral

30  character. A motor vehicle dealer, or any proprietor, partner,

31  stockholder, owner, or other person who holds or otherwise

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  owns an interest in the motor vehicle dealer, who desires to

 2  sell, assign, transfer, alienate, or otherwise dispose of any

 3  interest in such motor vehicle dealer shall notify, or cause

 4  the proposed transferee to so notify, the licensee, in

 5  writing, of the identity and address of the proposed

 6  transferee. A licensee who receives such notice may, within 60

 7  days following such receipt, notify the motor vehicle dealer

 8  in writing that the proposed transferee is not a person

 9  qualified to be a transferee under this section and setting

10  forth the material reasons for such rejection. Failure of the

11  licensee to notify the motor vehicle dealer within the 60-day

12  period of such rejection shall be deemed an approval of the

13  transfer. Any person whose proposed sale of stock is rejected

14  may file within 60 days of receipt of such rejection a

15  complaint with the department alleging that the rejection was

16  in violation of the law or the franchise agreement. The

17  licensee has the burden of proof with respect to all issues

18  raised by such complaint. The department shall determine, and

19  enter an order providing, that the proposed transferee either

20  is qualified or is not and cannot be qualified for specified

21  reasons; or the order may provide the conditions under which a

22  proposed transferee would be qualified. If the licensee fails

23  to file a response to the motor vehicle dealer's complaint

24  within 30 days of receipt of the complaint, unless the parties

25  agree in writing to an extension, or if the department, after

26  a hearing, renders a decision on the complaint other than one

27  disqualifying the proposed transferee, the transfer shall be

28  deemed approved in accordance with the determination and order

29  rendered, effective upon compliance by the proposed transferee

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

31  

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




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

 2  franchise agreement of the motor vehicle dealer shall continue

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

 4  expedite any determination requested under this section.

 5         (3)  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         (4)(3)  Notwithstanding the terms of any franchise

10  agreement, the acceptance by the licensee of the proposed

11  transferee shall not be unreasonably withheld. For the

12  purposes of this section, the refusal by the licensee to

13  accept a proposed transferee who satisfies the criteria set

14  forth in subsection (1) or subsection (2) is presumed to be

15  unreasonable.

16         (5)  It shall be a violation of this section for the

17  licensee to reject or withhold approval of a proposed transfer

18  unless the licensee can prove in any court of competent

19  jurisdiction or in a hearing before the department or in

20  defense of any claim brought pursuant to s. 320.697 that, in

21  fact, the proposed transferee was not qualified as set forth

22  in subsection (1) or subsection (2). Alleging the permitted

23  statutory grounds by the licensee in the written rejection of

24  the proposed transfer shall not protect the licensee from

25  liability for violating this section unless the licensee can

26  prove such allegations are true.

27         Section 6.  Section 320.644, Florida Statutes, is

28  amended to read:

29         320.644  Change of executive management control;

30  objection by licensee; procedure.--

31  

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1         (1)  No licensee shall prohibit or prevent, or attempt

 2  to prohibit or prevent, any motor vehicle dealer from changing

 3  the executive management control of the motor vehicle dealer

 4  unless the proposed change of executive management control of

 5  the motor vehicle dealer is to a person or persons not of good

 6  moral character or who do not meet the written, reasonable,

 7  and uniformly applied standards of the licensee relating to

 8  the business experience of executive management required by

 9  the licensee of its motor vehicle dealers. A motor vehicle

10  dealer who desires to change its executive management control

11  shall notify the licensee by written notice, setting forth the

12  name, address, and business experience of the proposed

13  executive management. A licensee who receives such notice

14  shall, in writing may, within 60 days following such receipt,

15  inform the motor vehicle dealer either of the approval of the

16  proposed change in executive management or the unacceptability

17  of the proposed change. If the licensee does not so inform the

18  motor vehicle dealer within the 60-day period, its approval of

19  the proposed change is deemed granted. For the purposes of

20  this section, rejection of a proposed change to a person who

21  is of good moral character and who otherwise meets the

22  written, reasonable, and uniformly applied standards of the

23  licensee relating to the business experience of executive

24  management required by the licensee of its motor vehicles

25  dealers is presumed to be unreasonable. A motor vehicle dealer

26  whose proposed change is rejected may, within 60 days

27  following receipt of such rejection, file with the department

28  a complaint for a determination that the proposed change of

29  executive management has been rejected in violation of this

30  section. The licensee has the burden of proof with respect to

31  all issues raised by such complaint. The department shall

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  determine, and enter an order providing, that the person

 2  proposed for the change is either qualified or is not and

 3  cannot be qualified for specific reasons, or the order may

 4  provide the conditions under which a proposed executive

 5  manager would be qualified. If the licensee fails to file a

 6  response to the motor vehicle dealer's complaint within 30

 7  days after receipt of the complaint, unless the parties agree

 8  in writing to an extension, or if the department after a

 9  hearing renders a decision other than one disqualifying the

10  person proposed for the change, the franchise agreement

11  between the motor vehicle dealer and the licensee shall be

12  deemed amended to incorporate such change or amended in

13  accordance with the determination or order rendered, effective

14  upon compliance by the person proposed for the change with any

15  conditions set forth in the determination or order file with

16  the department a verified complaint for a determination that

17  the proposed change of executive management will result in

18  executive management control by persons who are not of good

19  moral character or who do not meet such licensee's standards.

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

21  issues raised by such verified complaint. If the licensee

22  fails to file such verified complaint within such 60-day

23  period or if the department, after a hearing, dismisses the

24  complaint, the franchise agreement between the motor vehicle

25  dealer and the licensee shall be deemed amended to incorporate

26  such change or amended in accordance with the decision

27  rendered. For the purpose of this section, the mere

28  termination of employment of executive management, including

29  the dealer/operator or such similarly designated person or

30  persons, shall not be deemed to be a change in executive

31  management or a transfer of the franchise. Provided, however,

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  the designation of replacement executive management shall be

 2  subject to this section.

 3         (2)  For the purpose of this section, the mere

 4  termination of employment of executive management shall not be

 5  deemed to be a change in executive management or a transfer of

 6  the franchise; however, the proposal of replacement executive

 7  management shall be subject to this section During the

 8  pendency of any such hearing, the franchise agreement of the

 9  motor vehicle dealer shall continue in effect in accordance

10  with its terms. The department shall expedite any

11  determination requested under this section.

12         (3)  For the purpose of this section, the term

13  "executive management" shall mean and be limited to the person

14  or persons designated under the franchise agreement as the

15  dealer-operator, executive manager, or similarly designated

16  persons who are responsible for the overall day-to-day

17  operation of the dealership. A motor vehicle dealer may change

18  all other dealership personnel without seeking approval from

19  the licensee.

20         (4)  During the pendency of any such hearing, the

21  franchise agreement of the motor vehicle dealer shall continue

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

23  expedite any determination requested under this section.

24         (5)  It shall be a violation of this section for the

25  licensee to reject or withhold approval of a proposed change

26  of executive management, unless the licensee can prove in any

27  court of competent jurisdiction or in a hearing before the

28  department or in defense of any claim brought pursuant to s.

29  320.697 that, in fact, the person proposed for executive

30  management was not qualified as set forth in subsection (1).

31  Alleging the permitted statutory grounds by the licensee in

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1  the written rejection of the proposed change of executive

 2  management shall not protect the licensee from liability for

 3  violating this section unless the licensee proves such

 4  allegations are true.

 5         Section 7.  Section 320.695, Florida Statutes, is

 6  amended to read:

 7         320.695  Injunction.--In addition to the remedies

 8  provided in this chapter, and notwithstanding the existence of

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

10  vehicle dealer or any association of 30 or more motor vehicle

11  dealers in the name of the department and state and for the

12  use and benefit of one or more the motor vehicle dealers

13  dealer, is authorized to make application to any circuit court

14  of the state for the grant, upon a hearing and for cause

15  shown, of a temporary or permanent injunction, or both,

16  restraining any person from acting as a licensee under the

17  terms of ss. 320.60-320.70 without being properly licensed

18  hereunder, or from violating or continuing to violate or

19  threatening to violate any of the provisions of ss.

20  320.60-320.70, or from failing or refusing to comply with the

21  requirements of this law or any rule or regulation adopted

22  hereunder. Such injunction shall be issued without bond. A

23  single act in violation of the provisions of ss. 320.60-320.70

24  shall be sufficient to authorize the issuance of an

25  injunction. However, this statutory remedy shall not be

26  applicable to any motor vehicle dealer after final

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

28         Section 8.  Subsection (3) is added to section 320.699,

29  Florida Statutes, to read:

30         320.699  Administrative hearings and adjudications;

31  procedure.--

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1         (3)  If a complaint is filed pursuant to s. 320.6403,

 2  s. 320.641, s. 320.643, s. 320.644, or s. 320.696, a hearing

 3  shall be held no sooner than 180 days nor later than 240 days

 4  after the date of the filing of the complaint unless all

 5  parties stipulate to a hearing date sooner than 180 days, or

 6  unless the time is extended by the administrative law judge

 7  for good cause shown. This subsection shall govern the

 8  schedule of hearings in lieu of any other provision of law

 9  with respect to administrative hearings conducted by the

10  Department of Highway Safety and Motor Vehicles or the

11  Division of Administrative Hearings, including performance

12  standards of state agencies, which may be included in current

13  and future appropriations acts.

14         Section 9.  Subsection (2) of section 501.976, Florida

15  Statutes, is amended to read:

16         501.976  Actionable, unfair, or deceptive acts or

17  practices.--It is an unfair or deceptive act or practice,

18  actionable under the Florida Deceptive and Unfair Trade

19  Practices Act, for a dealer to:

20         (2)  Represent directly or indirectly that a vehicle is

21  a demonstrator unless the vehicle was driven by prospective

22  customers of a dealership selling the vehicle and such vehicle

23  complies with the definition of a demonstrator in s.

24  320.60(3).

25  

26  In any civil litigation resulting from a violation of this

27  section, when evaluating the reasonableness of an award of

28  attorney's fees to a private person, the trial court shall

29  consider the amount of actual damages in relation to the time

30  spent.

31  

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1         Section 10.  Paragraph (b) of subsection (2) of section

 2  817.7001, Florida Statutes, is amended to read:

 3         817.7001  Definitions.--As used in this part:

 4         (2)

 5         (b)  "Credit service organization" does not include:

 6         1.  Any person authorized to make loans or extensions

 7  of credit under the laws of this state or the United States

 8  who is subject to regulation and supervision by this state or

 9  the United States or a lender approved by the United States

10  Secretary of Housing and Urban Development for participation

11  in any mortgage insurance program under the National Housing

12  Act;

13         2.  Any bank, savings bank, or savings and loan

14  association whose deposits or accounts are eligible for

15  insurance by the Federal Deposit Insurance Corporation or the

16  Federal Savings and Loan Insurance Corporation, or a

17  subsidiary of such bank, savings bank, or savings and loan

18  association;

19         3.  Any credit union, federal credit union, or

20  out-of-state credit union doing business in this state;

21         4.  Any nonprofit organization exempt from taxation

22  under s. 501(c)(3) of the Internal Revenue Code;

23         5.  Any person licensed as a real estate broker by this

24  state if the person is acting within the course and scope of

25  that license;

26         6.  Any person collecting consumer claims pursuant to

27  s. 559.72;

28         7.  Any person licensed to practice law in this state

29  if the person renders services within the course and scope of

30  his or her practice as an attorney and does not engage in the

31  credit service business on a regular and continuing basis;

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    Florida Senate - 2003                                  SB 2708
    16-1158-03                                         See HB 1159




 1         8.  Any broker-dealer registered with the Securities

 2  and Exchange Commission or the Commodity Futures Trading

 3  Commission if the broker-dealer is acting within the course

 4  and scope of that regulation; or

 5         9.  Any consumer reporting agency as defined in the

 6  Federal Fair Credit Reporting Act, 15 U.S.C. ss. 1681-1681t;

 7  or

 8         10.  Any motor vehicle dealer as defined by s.

 9  320.27(1)(c) or s. 320.60(11)(a) and (b).

10         Section 11.  This act shall take effect upon becoming a

11  law.

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