Florida Senate - 2005                      COMMITTEE AMENDMENT
    Bill No. SB 802
                        Barcode 780086
                            CHAMBER ACTION
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11  The Committee on Judiciary (Webster) recommended the following
12  amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Section 501.975, Florida Statutes, is
19  amended to read:
20         501.975  Definitions.--As used in this part s. 501.976,
21  the following terms shall have the following meanings:
22         (1)  "Customer" includes a customer's designated agent.
23         (2)  "Dealer" means a motor vehicle dealer as defined
24  in s. 320.27, but does not include a motor vehicle auction as
25  defined in s. 320.27(1)(c)4.
26         (3)  "Replacement item" means a tire, bumper, bumper
27  fascia, glass, in-dashboard equipment, seat or upholstery
28  cover or trim, exterior illumination unit, grill, sunroof,
29  external mirror and external body cladding. The replacement of
30  up to three of these items does not constitute repair of
31  damage if each item is replaced because of a product defect or
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Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 damaged due to vandalism while the new motor vehicle is under 2 the control of the dealer and the items are replaced with 3 original manufacturer equipment, unless an item is replaced 4 due to a crash, collision, or accident. 5 (4) "Threshold amount" means 3 percent of the 6 manufacturer's suggested retail price of a motor vehicle or 7 $650, whichever is less. 8 (5) "Vehicle" means any automobile, truck, bus, 9 recreational vehicle, or motorcycle required to be licensed 10 under chapter 320 for operation over the roads of Florida, but 11 does not include trailers, mobile homes, travel trailers, or 12 trailer coaches without independent motive power. 13 (6) "Enforcing authority" has the same meaning as 14 provided in s. 501.203. 15 (7) "Violation of this part" has the same meaning as 16 provided in s. 501.203. 17 (8) "Interested party or person" means any person 18 affected by a violation of this part or any person affected by 19 an order of the enforcing authority. 20 (9) "Consumer" has the same meaning as provided in s. 21 501.203. 22 (10) "Trade or commerce" has the same meaning as 23 provided in s. 501.203. 24 (11) "Thing of value" has the same meaning as provided 25 in s. 501.203. 26 Section 2. Section 501.9751, Florida Statutes, is 27 created to read: 28 501.9751 Purposes; rules of construction.--This part 29 shall be the exclusive remedy for unfair and deceptive trade 30 practice actions filed against motor vehicle dealers as 31 defined in s. 320.27(1)(c)1. and s. 320.27(1)(c)2., except 2 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 that actions brought by any enforcing authority are not 2 limited to this part. This part shall be construed liberally 3 to promote the following policies with respect to motor 4 vehicle dealers: 5 (1) To simplify, clarify, and modernize the law 6 governing consumer protection, unfair methods of competition, 7 and unconscionable, deceptive, and unfair trade practices. 8 (2) To protect the consuming public and legitimate 9 business enterprises from those who engage in unfair methods 10 of competition or unconscionable, deceptive, or unfair acts or 11 practices in the conduct of any trade or commerce. 12 (3) To make state consumer protection and enforcement 13 consistent with established policies of federal law relating 14 to consumer protection. 15 Section 3. Section 501.9752, Florida Statutes, is 16 created to read: 17 501.9752 Effect on other remedies.-- 18 (1) The remedies of this part are in addition to 19 remedies otherwise available for the same conduct under state 20 or local law. 21 (2) This part is supplemental to and does not preempt 22 local consumer protection ordinances not inconsistent with 23 this part. 24 Section 4. Section 501.976, Florida Statutes, is 25 amended to read: 26 501.976 Actionable, unfair, or deceptive acts or 27 practices.--Unfair methods of competition, unconscionable acts 28 or practices, and unfair or deceptive acts or practices in the 29 conduct of any trade or commerce are declared unlawful. It is 30 the intent of the Legislature in construing this section that 31 due consideration and great weight be given to the 3 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 interpretations of the Federal Trade Commission and the 2 federal courts relating to s. 5(a)(1) of the Federal Trade 3 Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2005. It 4 is an unfair or deceptive act or practice, actionable under 5 the Florida Deceptive and Unfair Trade Practices Act, for a 6 dealer to: 7 (1) Represent directly or indirectly that a motor 8 vehicle is a factory executive vehicle or executive vehicle 9 unless such vehicle was purchased directly from the 10 manufacturer or a subsidiary or distributor of the 11 manufacturer and the vehicle was used exclusively by the 12 manufacturer, its subsidiary or distributor, or a dealer for 13 the commercial or personal use of the manufacturer's, 14 subsidiary's or distributor's, or dealer's employees or 15 owners. 16 (2) Represent directly or indirectly that a vehicle is 17 a demonstrator unless the vehicle complies with the definition 18 of a demonstrator in s. 320.60(3). 19 (3) Represent the previous usage or status of a 20 vehicle to be something that it was not, or make usage or 21 status representations unless the dealer has correct 22 information regarding the history of the vehicle to support 23 the representations. 24 (4) Represent the quality of care, regularity of 25 servicing, or general condition of a vehicle unless known by 26 the dealer to be true and supportable by material fact. 27 (5) Represent orally or in writing that a particular 28 vehicle has not sustained structural or substantial skin 29 damage unless the statement is made in good faith and the 30 vehicle has been inspected by the dealer or his or her agent 31 to determine whether the vehicle has incurred such damage. 4 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 (6) Sell a vehicle without fully and conspicuously 2 disclosing in writing at or before the consummation of sale 3 any warranty or guarantee terms, obligations, or conditions 4 that the dealer or manufacturer has given to the buyer. If the 5 warranty obligations are to be shared by the dealer and the 6 buyer, the method of determining the percentage of repair 7 costs to be assumed by each party must be disclosed. If the 8 dealer intends to disclaim or limit any expressed or implied 9 warranty, the disclaimer must be in writing in a conspicuous 10 manner and in lay terms in accordance with chapter 672 and the 11 Magnuson-Moss Warranty--Federal Trade Commission Improvement 12 Act. 13 (7) Provide an express or implied warranty and fail to 14 honor such warranty unless properly disclaimed under pursuant 15 to subsection (6). 16 (8) Misrepresent warranty coverage, application 17 period, or any warranty transfer cost or conditions to a 18 customer. 19 (9) Obtain signatures from a customer on contracts 20 that are not fully completed at the time the customer signs or 21 which do not reflect accurately the negotiations and agreement 22 between the customer and the dealer. 23 (10) Require or accept a deposit from a prospective 24 customer prior to entering into a binding contract for the 25 purchase and sale of a vehicle unless the customer is given a 26 written receipt that states how long the dealer will hold the 27 vehicle from other sale and the amount of the deposit, and 28 clearly and conspicuously states whether and upon what 29 conditions the deposit is refundable or nonrefundable. 30 (11) Add to the cash price of a vehicle as defined in 31 s. 520.02(2) any fee or charge other than those provided in 5 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 that section and in rule 3D-50.001, Florida Administrative 2 Code. All fees or charges permitted to be added to the cash 3 price by rule 3D-50.001, Florida Administrative Code, must be 4 fully disclosed to customers in all binding contracts 5 concerning the vehicle's selling price. 6 (12) Alter or change the odometer mileage of a 7 vehicle, except in accordance with 49 U.S.C. s. 32704. 8 (13) Sell a vehicle without disclosing to the customer 9 the actual year and model of the vehicle. 10 (14) File a lien against a new vehicle purchased with 11 a check unless the dealer fully discloses to the purchaser 12 that a lien will be filed if purchase is made by check and 13 fully discloses to the buyer the procedures and cost to the 14 buyer for gaining title to the vehicle after the lien is 15 filed. 16 (15) Increase the price of the vehicle after having 17 accepted an order of purchase or a contract from a buyer, 18 notwithstanding subsequent receipt of an official price change 19 notification. The price of a vehicle may be increased after a 20 dealer accepts an order of purchase or a contract from a buyer 21 if: 22 (a) A trade-in vehicle is reappraised because it 23 subsequently is damaged, or parts or accessories are removed; 24 (b) The price increase is caused by the addition of 25 new equipment, as required by state or federal law; 26 (c) The price increase is caused by the revaluation of 27 the United States dollar by the Federal Government, in the 28 case of a foreign-made vehicle; 29 (d) The price increase is caused by state or federal 30 tax rate changes; or 31 (e) Price protection is not provided by the 6 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 manufacturer, importer, or distributor. 2 (16) Advertise the price of a vehicle unless the 3 vehicle is identified by year, make, model, and a commonly 4 accepted trade, brand, or style name. The advertised price 5 must include all fees or charges that the customer must pay, 6 including freight or destination charge, dealer preparation 7 charge, and charges for undercoating or rustproofing. State 8 and local taxes, tags, registration fees, and title fees, 9 unless otherwise required by local law or standard, need not 10 be disclosed in the advertisement. When two or more dealers 11 advertise jointly, with or without participation of the 12 franchisor, the advertised price need not include fees and 13 charges that are variable among the individual dealers 14 cooperating in the advertisement, but the nature of all 15 charges that are not included in the advertised price must be 16 disclosed in the advertisement. 17 (17) Charge a customer for any predelivery service 18 required by the manufacturer, distributor, or importer for 19 which the dealer is reimbursed by the manufacturer, 20 distributor, or importer. 21 (18) Charge a customer for any predelivery service 22 without having printed on all documents that include a line 23 item for predelivery service the following disclosure: "This 24 charge represents costs and profit to the dealer for items 25 such as inspecting, cleaning, and adjusting vehicles, and 26 preparing documents related to the sale." 27 (19) Fail to disclose damage to a new motor vehicle, 28 as defined in s. 319.001(8), of which the dealer had actual 29 knowledge, if the dealer's actual cost of repairs exceeds the 30 threshold amount, excluding replacement items. 31 (20) Violate the provisions of s. 501.2077. Liability 7 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 under this subsection shall be imposed according to s. 2 501.2077. 3 4 In any civil litigation resulting from a violation of this 5 part section, the prevailing party shall be entitled to an 6 award of attorney's fees and costs in accordance with s. 7 501.2105. When evaluating the reasonableness of an award of 8 attorney's fees to a private person, the trial court shall 9 consider the amount of actual damages in relation to the time 10 spent. 11 Section 5. Section 501.977, Florida Statutes, is 12 created to read: 13 501.977 Obligation of dealer.-- 14 (1) Every motor vehicle dealer, as defined under s. 15 320.60(11), has the affirmative obligation to provide to any 16 purchaser or lessor of any new motor vehicle, as defined under 17 s. 320.60(10), a written statement, signed by an authorized 18 representative of the dealer, stating that the motor vehicle 19 has not previously been sold or leased to any other purchaser 20 or lessor and stating that the provisions of s. 501.976 have 21 not been violated. 22 (2) Every motor vehicle dealer, as defined under s. 23 320.60(11), has the affirmative obligation to provide to any 24 purchaser or lessor of any used motor vehicle, as defined 25 under s. 320.60(13), a written statement, signed by an 26 authorized representative of the dealer, stating that the 27 provisions of s. 501.976 have not been violated. 28 (3) In any civil action brought under this part by a 29 purchaser or lessor of any new or used vehicle, if the 30 plaintiff shows that the representations made by the dealer 31 under the notice required under subsections (1) and (2) were 8 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 not accurate when made, there shall be a rebuttable 2 presumption, as defined under s. 90.302, of a violation of 3 this part. A failure to provide the statement required under 4 subsections (1) and (2) creates a rebuttable presumption of a 5 violation of this part. 6 Section 6. Section 501.978, Florida Statutes, is 7 created to read: 8 501.978 Other individual remedies.-- 9 (1) Without regard to any other remedy or relief to 10 which a person is entitled, anyone aggrieved by a violation of 11 this part may bring an action to obtain a declaratory judgment 12 that an act or practice violates this part and to enjoin a 13 person who has violated, is violating, or is otherwise likely 14 to violate this part. 15 (2) In any action brought by a person who has suffered 16 a loss as a result of a violation of this part, the person may 17 recover actual damages, plus attorney's fees and court costs 18 as provided in s. 501.2105. However, damages, fees, or costs 19 are not recoverable under this section against a retailer who 20 has, in good faith, engaged in the dissemination of claims of 21 a manufacturer or wholesaler without actual knowledge that it 22 violated this part. 23 (3) In any action brought under this section, upon 24 motion of the party against whom the action is filed alleging 25 that the action is frivolous, without legal or factual merit, 26 or brought for the purpose of harassment, the court may, after 27 hearing evidence as to the necessity therefore, require the 28 party instituting the action to post a bond in the amount 29 which the court finds reasonable to indemnify the defendant 30 for any damages incurred, including reasonable attorney's 31 fees. This subsection does not apply to any action initiated 9 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 by the enforcing authority. 2 Section 7. Section 501.979, Florida Statutes, is 3 created to read: 4 501.979 Notice; contract; satisfaction of claims.-- 5 (1) As a condition precedent to filing any action for 6 any violation of this part, the dealer must be provided with 7 written notice of an intent to initiate litigation. 8 (2) The notice required shall state that it is a 9 "demand letter for a violation of the Florida Deceptive and 10 Unfair Trade Practices Act" and shall state with specificity: 11 (a) The name and contact information of all claimants. 12 (b) The name of the dealer and the names of the 13 dealer's employees or agents who were involved with the 14 alleged unfair and deceptive act, if known to the claimant. 15 (c) The facts and circumstances giving rise to the 16 alleged unfair and deceptive act. The claimant shall attach a 17 copy of all documentation relating to the transaction in the 18 claimant's possession, including, but not limited to, the 19 purchase contract lease, finance agreement, and advertisement. 20 (d) The amount and nature of actual damages alleged by 21 the claimant to be recoverable under this section. The term 22 actual damages means out-of-pocket costs and pecuniary loss to 23 the claimant which are directly caused by the alleged 24 violations of this section and does not include legal fees or 25 consequential or other damages. 26 (e) A statement that the notice is given in order to 27 perfect the right to pursue the civil remedy authorized by 28 this section. 29 (3) Each notice required by this section must be 30 delivered to the dealer by the United States Postal Service by 31 certified or registered mail. Such postal costs shall be 10 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 reimbursed by the dealer if so requested by the claimant in 2 the notice, if the dealer pays the claim or provides the 3 relief requested in the notice. 4 (4) If, within 15 days after receipt of notice by the 5 dealer, the alleged claim specified in the notice is paid by 6 the dealer, along with reasonable attorney's fees and costs, 7 no action may be brought against the dealer. For purposes of 8 this section, payment or the dealer's agreement to remedy any 9 nonmonetary relief shall be treated as being made on the date 10 a draft or other valid instrument that is equivalent to 11 payment, or the dealer's written statement of envelope, or if 12 not so posted, on the date of delivery of the notice. 13 (5) The applicable statute of limitations for an 14 action under this section shall be tolled for a period of 15 15 business days by the mailing of the notice required by this 16 section. 17 (6) This section does not apply to any action brought 18 by the enforcing authority. 19 Section 8. Present subsections (3) and (4) of section 20 501.2077, Florida Statutes, are redesignated as subsections 21 (4) and (5), respectively, and a new subsection (3) is added 22 to that section, to read: 23 501.2077 Violations involving senior citizen or 24 handicapped person; civil penalties; presumption.-- 25 (3) It is presumed to be substantively and 26 procedurally unconscionable and an unfair or deceptive trade 27 act in violation of this part for any person to cause a 28 handicapped person or a senior citizen who is at least 70 29 years of age and whose ability to perform the normal 30 activities of daily living is impaired, or the designee or 31 legal representative of the handicapped person or senior 11 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 citizen, to: 2 (a) Waive or limit any benefit or right conferred by 3 any statute intended to provide protection to such persons; or 4 (b) Waive the person's right of access to a jury 5 trial, 6 7 unless the waiver is acknowledged in writing to be knowing and 8 voluntary by an attorney representing the senior citizen or 9 handicapped person. 10 Section 9. This act shall take effect July 1, 2005, 11 and applies to causes of action accruing on or after that 12 date. 13 14 15 ================ T I T L E A M E N D M E N T =============== 16 And the title is amended as follows: 17 Delete everything before the enacting clause 18 19 and insert: 20 A bill to be entitled 21 An act relating to unfair and deceptive trade 22 practices; amending s. 501.975, F.S.; providing 23 definitions; creating s. 501.9751, F.S.; 24 providing an exclusive remedy for unfair and 25 deceptive trade practice actions against motor 26 vehicle dealers and providing purposes; 27 creating s. 501.9752, F.S.; clarifying that 28 these remedies are in addition to those 29 authorized under state or local law; amending 30 s. 501.976, F.S.; providing legislative intent; 31 revising actions that are unfair or deceptive 12 9:18 AM 04/19/05 s0802d-ju09-ta1
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 802 Barcode 780086 1 acts or practices; creating s. 501.977, F.S.; 2 requiring motor vehicle dealers to provide 3 certain written statements to purchasers or 4 lessors; creating a rebuttable presumption; 5 creating s. 501.978, F.S.; authorizing 6 declaratory judgments and injunctions; 7 providing for recovery; providing a good-faith 8 exception; authorizing the court to require the 9 posting of a bond; creating s. 501.979, F.S.; 10 requiring a demand notice in an action against 11 a motor vehicle dealer and providing a 12 procedure; amending s. 501.2077, F.S.; 13 providing that it is an unfair or deceptive act 14 to cause handicapped persons or certain senior 15 citizens to waive certain benefits or rights; 16 providing an exception; providing an effective 17 date. 18 19 20 21 22 23 24 25 26 27 28 29 30 31 13 9:18 AM 04/19/05 s0802d-ju09-ta1