HB 1341

1	A bill to be entitled
2	An act relating to motor vehicle dealers; amending s.
3	501.212, F.S.; exempting certain claims against a motor
4	vehicle dealer from the provisions of the Florida
5	Deceptive and Unfair Trade Practices Act; amending s.
6	501.976, F.S.; removing a provision that certain acts by a
7	dealer are actionable under that act; revising acts by a
8	dealer that constitute unfair or deceptive acts or
9	practices; providing a restriction on certain civil
10	actions; providing complaint procedures; requiring a
11	presuit notice to the dealer; providing a form for the
12	notice; providing for satisfaction of complaint; providing
13	for award of certain costs to the prevailing party;
14	providing for posting of bond under certain circumstances;
15	defining "actual damages"; providing for application;
16	revising provisions for award of attorney's fees;
17	providing an effective date.
18
19	Be It Enacted by the Legislature of the State of Florida:
20
21	Section 1.  Subsection (8) is added to section 501.212,
22	Florida Statutes, to read:
23	501.212  Application.--This part does not apply to:
24	(8)  A claim against a motor vehicle dealer as defined in
25	s. 320.27, except as described in s. 501.976.
26	Section 2.  Section 501.976, Florida Statutes, is amended
27	to read:
28	501.976  Motor vehicle dealers; actionable, unfair, or
29	deceptive acts or practices.--
30	(1)  It is an unfair or deceptive act or practice,
31	actionable under the Florida Deceptive and Unfair Trade
32	Practices Act, for a dealer to:
33	(a)(1)  Represent directly or indirectly that a motor
34	vehicle is a factory executive vehicle or executive vehicle
35	unless such vehicle was purchased directly from the manufacturer
36	or a subsidiary or distributor of the manufacturer and the
37	vehicle was used exclusively by the manufacturer, its subsidiary
38	or distributor, or a dealer for the commercial or personal use
39	of the manufacturer's, subsidiary's, or dealer's employees or
40	owners.
41	(b)(2)  Represent directly or indirectly that a vehicle is
42	a demonstrator unless the vehicle complies with the definition
43	of a demonstrator in s. 320.60(3).
44	(c)(3)  Represent the previous usage or status of a vehicle
45	to be something that it was not, or make usage or status
46	representations unless the representation is made in good faith
47	and the dealer has obtained correct information regarding the
48	history of the vehicle to support the representations the dealer
49	believes to be correct.
50	(d)(4)  Represent the quality of care, regularity of
51	servicing, or general condition of a vehicle unless the
52	representation is made in good faith and the dealer has obtained
53	information to support the representation the dealer believes to
54	be correct known by the dealer to be true and supportable by
55	material fact.
56	(e)(5)  Represent orally or in writing that a particular
57	vehicle has not sustained structural or substantial skin damage
58	unless the statement is made in good faith and the vehicle has
59	been inspected by the dealer or his or her agent to determine
60	whether the vehicle has incurred such damage.
61	(f)(6)  Sell a vehicle without fully and conspicuously
62	disclosing in writing at or before the consummation of sale any
63	warranty or guarantee terms, obligations, or conditions that the
64	dealer or manufacturer has given to the buyer. If the warranty
65	obligations are to be shared by the dealer and the buyer, the
66	method of determining the percentage of repair costs to be
67	assumed by each party must be disclosed. If the dealer intends
68	to disclaim or limit any expressed or implied warranty, the
69	disclaimer must be in writing in a conspicuous manner and in lay
70	terms in accordance with chapter 672 and the Magnuson-Moss
71	Warranty--Federal Trade Commission Improvement Act.
72	(g)(7)  Provide an express or implied warranty and fail to
73	honor such warranty unless properly disclaimed pursuant to
74	paragraph (f) subsection (6).
75	(h)(8)  Misrepresent warranty coverage, application period,
76	or any warranty transfer cost or conditions to a customer.
77	(i)(9)  Obtain signatures from a customer on contracts that
78	are not fully completed at the time the customer signs or which
79	do not reflect accurately the negotiations and agreement between
80	the customer and the dealer.
81	(j)(10)  Require or accept a deposit from a prospective
82	customer prior to entering into a binding contract for the
83	purchase and sale of a vehicle unless the customer is given a
84	written receipt that states how long the dealer will hold the
85	vehicle from other sale and the amount of the deposit, and
86	clearly and conspicuously states whether and upon what
87	conditions the deposit is refundable or nonrefundable.
88	(k)(11)  Add to the cash price of a vehicle as defined in
89	s. 520.02(2) any fee or charge other than those provided in that
90	section and in rule 3D-50.001, Florida Administrative Code. All
91	fees or charges permitted to be added to the cash price by rule
92	3D-50.001, Florida Administrative Code, must be fully disclosed
93	to customers in all binding contracts concerning the vehicle's
94	selling price.
95	(l)(12)  Alter or change the odometer mileage of a vehicle
96	except in accordance with 49 U.S.C. s. 32704.
97	(m)(13)  Sell a vehicle without disclosing to the customer
98	the actual year and model of the vehicle.
99	(n)(14)  File a lien against a new vehicle purchased with a
100	check unless the dealer fully discloses to the purchaser that a
101	lien will be filed if purchase is made by check and fully
102	discloses to the buyer the procedures and cost to the buyer for
103	gaining title to the vehicle after the lien is filed.
104	(o)(15)  Increase the price of the vehicle after having
105	accepted an order of purchase or a contract from a buyer,
106	notwithstanding subsequent receipt of an official price change
107	notification. The price of a vehicle may be increased after a
108	dealer accepts an order of purchase or a contract from a buyer
109	if:
110	1.(a)  A trade-in vehicle is reappraised because it
111	subsequently is damaged, or parts or accessories are removed;
112	2.(b)  The price increase is caused by the addition of new
113	equipment, as required by state or federal law;
114	3.(c)  The price increase is caused by the revaluation of
115	the United States dollar by the Federal Government, in the case
116	of a foreign-made vehicle;
117	4.(d)  The price increase is caused by state or federal tax
118	rate changes; or
119	5.(e)  Price protection is not provided by the
120	manufacturer, importer, or distributor.
121	(p)(16)  Advertise the price of a vehicle unless the
122	vehicle is identified by year, make, model, and a commonly
123	accepted trade, brand, or style name. The advertised price must
124	include all fees or charges that the customer must pay,
125	including freight or destination charge, dealer preparation
126	charge, and charges for undercoating or rustproofing. State and
127	local taxes, tags, registration fees, and title fees, unless
128	otherwise required by local law or standard, need not be
129	disclosed in the advertisement. When two or more dealers
130	advertise jointly, with or without participation of the
131	franchisor, the advertised price need not include fees and
132	charges that are variable among the individual dealers
133	cooperating in the advertisement, but the nature of all charges
134	that are not included in the advertised price must be disclosed
135	in the advertisement.
136	(q)(17)  Charge a customer for any predelivery service
137	required by the manufacturer, distributor, or importer for which
138	the dealer is reimbursed by the manufacturer, distributor, or
139	importer.
140	(r)(18)  Charge a customer for any predelivery service
141	without having printed on all documents that include a line item
142	for predelivery service the following disclosure: "This charge
143	represents costs and profit to the dealer for items such as
144	inspecting, cleaning, and adjusting vehicles, and preparing
145	documents related to the sale."
146	(s)(19)  Fail to disclose damage to a new motor vehicle, as
147	defined in s. 319.001(8), of which the dealer had actual
148	knowledge, if the dealer's actual cost of repairs exceeds the
149	threshold amount, excluding replacement items.
150	(t)  Engage in other unfair or deceptive acts or practices
151	in the sale, leasing, or servicing of motor vehicles.
152	(2)  No civil action against a motor vehicle dealer, as
153	defined in s. 320.27, shall be filed except pursuant to this
154	section.
155	(3)  As a condition precedent the filing of a complaint for
156	a violation of this section, the complainant must have lawful
157	possession of the vehicle involved in the transaction complaint.
158	(a)  At least 40 days before filing a complaint resulting
159	from a transaction with a dealer, the claimant shall send a
160	written notice as described in paragraph (b) to the prospective
161	defendant via certified mail, return receipt requested,
162	overnight courier, or hand delivery addressed to the dealer's
163	general manager or registered agent for service of process. Any
164	notice under this subsection shall be made in good faith and
165	shall:
166	1.  Specifically reference the transaction and attach a
167	copy of documentation relating to the transaction.
168	2.  Describe the alleged violations of this section.
169	3.  Specifically describe the amount and nature of the
170	actual damages alleged by the claimant to be recoverable under
171	this section.
172	(b)  The notice required under paragraph (a) shall be in
173	substantially the following form:
174	STATUTORY FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICE
175	PRE-SUIT NOTICE TO MOTOR VEHICLE DEALER
176	(Section 501.976, Florida Statutes)
177
178	Claimant Name:  .............................
179	Claimant Address:  ..........................
180	.............................................
181	Claimant Telephone Numbers:
182	Business:  ....
183	Mobile:  ....
184	Home:  ....
185	Claimant E-mail Address:  ....
186	Motor Vehicle Dealer Name:  .................
187
188	Motor Vehicle Dealer Address:  ..............
189	.............................................
190	Description of the Vehicle Involved:
191	Year:  ....Make:  ....Model:  ....
192	Vehicle Identification Number:  ....
193
194	Date of Transaction/Occurrence/Event:  ....
195
196	The documents in connection with the
197	transaction/occurrence/event upon which the claim is based are:
198	....(example: purchase contract, lease, finance agreement,
199	repair order, advertisement, invoice, etc.).....
200	(You must attach a copy of each document.)
201
202	The following is a detailed factual explanation of why the
203	claimant is making this claim:
204
205	Dealer violated section 501.976, Florida Statutes, by:
206
207	(Attach additional pages if necessary.)
208
209	NOTE TO CLAIMANT:  Under Florida's Deceptive and Unfair Trade
210	Practices Act, an aggrieved person is entitled to recover actual
211	damages. Actual damages are defined as the amount of your out-
212	of-pocket costs or losses you claim to have incurred as a direct
213	result of the motor vehicle dealer's conduct in violation of
214	this law, not including legal fees. Actual damages do not
215	include consequential damages such as, but not limited to,
216	emotional distress, time missed from work, inconvenience, pain
217	and suffering, etc.
218
219	My actual damages total:  $....
220
221	Provide the description and amount of each item that makes up
222	the amount you claim.  (example: replacement bumper, $100)
223
224	1.  .............................  $....
225	2.  .............................  $....
226	3.  .............................  $....
227	4.  .............................  $....
228	5.  .............................  $....
229	(Attach additional pages if necessary.)
230
231	This notice must be sent to the motor vehicle dealer via
232	certified mail, return receipt requested, overnight courier, or
233	hand delivery and must be addressed either "Attn: General
234	Manager" or to the Registered Agent for Service of Process of
235	the motor vehicle dealer.
236
237	The motor vehicle dealer has 40 days within which to respond to
238	the damages demand set forth in this notice. If the motor
239	vehicle dealer accepts the damages demand, it must provide you
240	with the settlement proceeds within 10 days after the date of
241	acceptance. Alternately, the motor vehicle dealer may offer to
242	rescind a motor vehicle sale or lease transaction or otherwise
243	return you to the financial position you were in prior to the
244	transaction that is the basis of your complaint. Such acceptance
245	and payment or rescission shall be deemed a final settlement and
246	a release of all your claims against the motor vehicle dealer
247	under all Florida laws in connection with or arising out of the
248	transaction described above.
249
250	I declare under penalty of perjury under the laws of the State
251	of Florida that the foregoing is true and correct.
252
253	Executed on (month)/(day)/(year)
254
255	Claimant Signature:  ........................
256
257	Print Name:  ................................
258
259	(c)  No complaint shall be filed against a dealer seeking
260	relief for a violation of this section if the motor vehicle
261	dealer alleged to have violated this section has, within the 40-
262	day notice period:
263	1.  Agreed in writing to pay the actual damages described
264	in the notice and paid the complainant such damages within 10
265	days after such agreement; or
266	2.  Offered in writing to rescind the transaction and
267	return the claimant to his, her, or its prior financial position
268	by:
269	a.  Obtaining a discharge of any of the claimant's
270	obligations under any finance or lease agreement and other
271	contracts signed by the claimant at the time of the transaction
272	referred to in the notice; and
273	b.  Returning to the claimant any cash deposited plus
274	either the return of any motor vehicle traded in or the agreed
275	trade-in amount allowed for such trade-in as part of the vehicle
276	sale or lease transaction, plus the documented cost of
277	accessories added to the vehicle by the complainant after the
278	date of the vehicle sale or lease transaction with the dealer,
279	minus, with respect to the motor vehicle described in the
280	notice, an amount equal to the cost of repair for any physical
281	damage to that motor vehicle, which motor vehicle the claimant
282	shall return to the motor vehicle dealer. In the absence of
283	agreement between the parties on the cost of repair, that amount
284	shall be determined by a motor vehicle repair shop not
285	associated with the dealer. The motor vehicle repair shop shall
286	be selected by the insurance company providing
287	comprehensive/collision insurance for the motor vehicle, if any,
288	or jointly by the parties or, in the absence of agreement, the
289	claimant and the dealer shall each obtain an estimate from an
290	independent motor vehicle repair shop and the cost of repair
291	shall be the average of the two estimates received.
292
293	The time for completing the payment or rescission shall be
294	extended until the cost of repair has been determined and, if
295	applicable, the execution, acknowledgement, and delivery of all
296	documents necessary to return free and clear title and
297	possession of the purchased or leased motor vehicle to the motor
298	vehicle dealer or its designee.
299	(d)  Payment of the actual damages or rescission shall not
300	constitute an admission by the alleged violator of any
301	wrongdoing or a violation of this section or chapter and shall
302	serve to release and discharge the violator from any suit,
303	action, or other proceeding that could be brought under this
304	section or chapter arising out of or in connection with the
305	transaction described in the notice and from any other claim
306	cognizable under any state law in connection with the
307	transaction.
308	(e)  In the event the dealer elects to rescind a
309	transaction pursuant to this section, the Department of Revenue
310	shall refund to the dealer any sales tax the dealer refunded to
311	the claimant under this section.
312	(4)(a)  If no complaint is filed, the claimant shall be
313	entitled to receive reasonable attorney's fees and costs, to the
314	extent both were actually incurred, through the date of the
315	payment or rescission. In the absence of an agreement as to such
316	amount, the court shall determine and award such fees and costs,
317	upon the filing of a proper petition, on the basis of time
318	necessarily and reasonably spent by the claimant's counsel. No
319	multiplier amount shall be applied by the court to any award of
320	attorney's fees under this section.
321	(b)  In any civil litigation resulting from an act or
322	practice involving a violation of this part:
323	1.  The prevailing party, after judgment in the trial court
324	and exhaustion of all appeals, if any, may receive his or her
325	reasonable attorney's fees and costs from the nonprevailing
326	party.
327	2.  The attorney for the prevailing party shall submit a
328	sworn affidavit of his or her time spent on the case and his or
329	her costs incurred for all motions, hearings, and appeals to the
330	trial judge who presided over the civil case.
331	3.  The trial judge may award the prevailing party the sum
332	of costs necessary and reasonable in the action, plus a
333	reasonable legal fee for the hours reasonably spent on the case
334	as sworn to in the affidavit. In determining the reasonableness
335	of hours claimed in the affidavit, the court shall not award any
336	fees or expenses for any hours the court determines, after a
337	hearing, to have been spent preparing or taking any discovery
338	that is determined to have been:
339	a.  Harassing, oppressive, unduly burdensome, unnecessary,
340	or immaterial to the action;
341	b.  Propounded in bad faith or without the aim of proving
342	the justiciable issues of law or fact set forth in the complaint
343	or answer; or
344	c.  Propounded for the purpose of unreasonably extending
345	the existence of the action.
346
347	In awarding attorney's fees, the court shall give great weight
348	to the nature of the damages claimed in the notice and the
349	amount of actual damages awarded. No multiplier amount shall be
350	applied by the court to any award or attorney's fees under this
351	section.
352	(5)  In any civil action brought under this section, upon
353	motion of the party against whom such action is filed alleging
354	that the action is frivolous, without legal or factual merit, or
355	brought or continued without compliance with this section or
356	unnecessarily or for the purpose of harassment, the court, after
357	hearing evidence with respect to such allegations, shall require
358	the party instituting or continuing the action to post a bond in
359	an amount that the court finds reasonable to indemnify the
360	defendant for any damages incurred, including reasonable
361	attorney's fees and costs.
362	(6)  As used in this section, the term "actual damages"
363	means those reasonable out-of-pocket costs or pecuniary losses
364	to the claimant that are directly caused by the alleged
365	violations of this section. Such items shall be detailed in the
366	notice pursuant to paragraph (3)(b).
367	(7)  This section shall not apply to any action filed by
368	the enforcing authority.
369
370	In any civil litigation resulting from a violation of this
371	section, when evaluating the reasonableness of an award of
372	attorney's fees to a private person, the trial court shall
373	consider the amount of actual damages in relation to the time
374	spent.
375	Section 3.  This act shall take effect October 1, 2005.

CODING: Words stricken are deletions; words underlined are additions.