| 1 | The Transportation Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to motor vehicle dealers; amending s. |
| 7 | 320.27, F.S.; exempting certain applicants for a new |
| 8 | franchised motor vehicle dealer license from certain |
| 9 | training requirements; amending s. 320.60, F.S.; revising |
| 10 | the definition of "demonstrator" for purposes of |
| 11 | provisions relating to manufacturing, importing, and |
| 12 | distributing motor vehicles; amending s. 320.64, F.S.; |
| 13 | prohibiting specified licensees from failing to pay |
| 14 | certain compensation amounts to a motor vehicle dealer |
| 15 | after termination of the dealer's franchise agreement; |
| 16 | providing exceptions; providing procedures for payment of |
| 17 | the compensation amounts; providing for certain remedies, |
| 18 | procedures, and rights of recovery; amending s. 320.642, |
| 19 | F.S.; deleting a requirement that certain notices be sent |
| 20 | by certified mail; revising conditions under which an |
| 21 | opening or reopening of the same or a successor dealer |
| 22 | within 12 months is not considered an additional dealer |
| 23 | subject to protest; prohibiting for a certain time |
| 24 | proposals for a dealer of the same line-make after the |
| 25 | opening or reopening of the dealer; providing criteria for |
| 26 | measurements of distance between dealer locations; |
| 27 | providing that the Department of Highway Safety and Motor |
| 28 | Vehicles is not obligated to determine the accuracy of any |
| 29 | distance submitted in a notice; providing for resolution |
| 30 | of disputed distances by a hearing in accordance with |
| 31 | specified provisions; providing an effective date. |
| 32 |
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| 33 | Be It Enacted by the Legislature of the State of Florida: |
| 34 |
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| 35 | Section 1. Paragraph (a) of subsection (4) of section |
| 36 | 320.27, Florida Statutes, is amended to read: |
| 37 | 320.27 Motor vehicle dealers.-- |
| 38 | (4) LICENSE CERTIFICATE.-- |
| 39 | (a) A license certificate shall be issued by the |
| 40 | department in accordance with such application when the |
| 41 | application is regular in form and in compliance with the |
| 42 | provisions of this section. The license certificate may be in |
| 43 | the form of a document or a computerized card as determined by |
| 44 | the department. The actual cost of each original, additional, or |
| 45 | replacement computerized card shall be borne by the licensee and |
| 46 | is in addition to the fee for licensure. Such license, when so |
| 47 | issued, entitles the licensee to carry on and conduct the |
| 48 | business of a motor vehicle dealer. Each license issued to a |
| 49 | franchise motor vehicle dealer expires annually on December 31 |
| 50 | unless revoked or suspended prior to that date. Each license |
| 51 | issued to an independent or wholesale dealer or auction expires |
| 52 | annually on April 30 unless revoked or suspended prior to that |
| 53 | date. Not less than 60 days prior to the license expiration |
| 54 | date, the department shall deliver or mail to each licensee the |
| 55 | necessary renewal forms. Each independent dealer shall certify |
| 56 | that the dealer principal (owner, partner, officer of the |
| 57 | corporation, or director) has completed 8 hours of continuing |
| 58 | education prior to filing the renewal forms with the department. |
| 59 | Such certification shall be filed once every 2 years commencing |
| 60 | with the 2006 renewal period. The continuing education shall |
| 61 | include at least 2 hours of legal or legislative issues, 1 hour |
| 62 | of department issues, and 5 hours of relevant motor vehicle |
| 63 | industry topics. Continuing education shall be provided by |
| 64 | dealer schools licensed under paragraph (b) either in a |
| 65 | classroom setting or by correspondence. Such schools shall |
| 66 | provide certificates of completion to the department and the |
| 67 | customer which shall be filed with the license renewal form, and |
| 68 | such schools may charge a fee for providing continuing |
| 69 | education. Any licensee who does not file his or her application |
| 70 | and fees and any other requisite documents, as required by law, |
| 71 | with the department at least 30 days prior to the license |
| 72 | expiration date shall cease to engage in business as a motor |
| 73 | vehicle dealer on the license expiration date. A renewal filed |
| 74 | with the department within 45 days after the expiration date |
| 75 | shall be accompanied by a delinquent fee of $100. Thereafter, a |
| 76 | new application is required, accompanied by the initial license |
| 77 | fee. A license certificate duly issued by the department may be |
| 78 | modified by endorsement to show a change in the name of the |
| 79 | licensee, provided, as shown by affidavit of the licensee, the |
| 80 | majority ownership interest of the licensee has not changed or |
| 81 | the name of the person appearing as franchisee on the sales and |
| 82 | service agreement has not changed. Modification of a license |
| 83 | certificate to show any name change as herein provided shall not |
| 84 | require initial licensure or reissuance of dealer tags; however, |
| 85 | any dealer obtaining a name change shall transact all business |
| 86 | in and be properly identified by that name. All documents |
| 87 | relative to licensure shall reflect the new name. In the case of |
| 88 | a franchise dealer, the name change shall be approved by the |
| 89 | manufacturer, distributor, or importer. A licensee applying for |
| 90 | a name change endorsement shall pay a fee of $25 which fee shall |
| 91 | apply to the change in the name of a main location and all |
| 92 | additional locations licensed under the provisions of subsection |
| 93 | (5). Each initial license application received by the department |
| 94 | shall be accompanied by verification that, within the preceding |
| 95 | 6 months, the applicant, or one or more of his or her designated |
| 96 | employees, has attended a training and information seminar |
| 97 | conducted by a licensed motor vehicle dealer training school. |
| 98 | Any applicant for a new franchised motor vehicle dealer license |
| 99 | who has held a valid franchised motor vehicle dealer license |
| 100 | continuously for the past 2 years and who remains in good |
| 101 | standing with the department is exempt from the prelicensing |
| 102 | training requirement. Such seminar shall include, but is not |
| 103 | limited to, statutory dealer requirements, which requirements |
| 104 | include required bookkeeping and recordkeeping procedures, |
| 105 | requirements for the collection of sales and use taxes, and such |
| 106 | other information that in the opinion of the department will |
| 107 | promote good business practices. No seminar may exceed 8 hours |
| 108 | in length. |
| 109 | Section 2. Subsection (3) of section 320.60, Florida |
| 110 | Statutes, is amended to read: |
| 111 | 320.60 Definitions for ss. 320.61-320.70.--Whenever used |
| 112 | in ss. 320.61-320.70, unless the context otherwise requires, the |
| 113 | following words and terms have the following meanings: |
| 114 | (3) "Demonstrator" means any new motor vehicle that which |
| 115 | is carried on the records of the dealer as a demonstrator and is |
| 116 | used by, being inspected or driven by the dealer or his or her |
| 117 | employees, or driven by prospective customers for the purpose of |
| 118 | demonstrating vehicle characteristics in the sale or display of |
| 119 | motor vehicles sold by the dealer. |
| 120 | Section 3. Subsection (36) is added to section 320.64, |
| 121 | Florida Statutes, to read: |
| 122 | 320.64 Denial, suspension, or revocation of license; |
| 123 | grounds.--A license of a licensee under s. 320.61 may be denied, |
| 124 | suspended, or revoked within the entire state or at any specific |
| 125 | location or locations within the state at which the applicant or |
| 126 | licensee engages or proposes to engage in business, upon proof |
| 127 | that the section was violated with sufficient frequency to |
| 128 | establish a pattern of wrongdoing, and a licensee or applicant |
| 129 | shall be liable for claims and remedies provided in ss. 320.695 |
| 130 | and 320.697 for any violation of any of the following |
| 131 | provisions. A licensee is prohibited from committing the |
| 132 | following acts: |
| 133 | (36)(a) Notwithstanding the terms of any franchise |
| 134 | agreement, in addition to any other statutory or contractual |
| 135 | rights of recovery after the voluntary or involuntary |
| 136 | termination of a franchise, failing to pay the motor vehicle |
| 137 | dealer, within 90 days after the effective date of the |
| 138 | termination, cancellation, or nonrenewal, the following amounts: |
| 139 | 1. The net cost paid by the dealer for each new motor |
| 140 | vehicle in the dealer's inventory with mileage of 2,000 miles or |
| 141 | less, exclusive of mileage placed on the vehicle before it was |
| 142 | delivered to the dealer. |
| 143 | 2. The current price charged for each new, unused, |
| 144 | undamaged, or unsold part or accessory that: |
| 145 | a. Is in the current parts catalogue and is still in the |
| 146 | original, resalable merchandising package and in an unbroken |
| 147 | lot, except that sheet metal may be in a comparable substitute |
| 148 | for the original package; and |
| 149 | b. Was purchased by the dealer directly from the |
| 150 | manufacturer or distributor or from an outgoing authorized |
| 151 | dealer as a part of the dealer's initial inventory. |
| 152 | 3. The fair market value of each undamaged sign owned by |
| 153 | the dealer which bears a trademark or trade name used or claimed |
| 154 | by the applicant or licensee or its representative which was |
| 155 | purchased from or at the request of the applicant or licensee or |
| 156 | its representative. |
| 157 | 4. The fair market value of all special tools, data |
| 158 | processing equipment, and automotive service equipment owned by |
| 159 | the dealer which: |
| 160 | a. Were recommended in writing by the applicant or |
| 161 | licensee or its representative and designated as special tools |
| 162 | and equipment; |
| 163 | b. Were purchased from or at the request of the applicant |
| 164 | or licensee or its representative; and |
| 165 | c. Are in usable and good condition except for reasonable |
| 166 | wear and tear. |
| 167 | 5. The cost of transporting, handling, packing, storing, |
| 168 | and loading any property subject to repurchase under this |
| 169 | section. |
| 170 | (b) This subsection does not apply to a termination, |
| 171 | cancellation, or nonrenewal that is implemented as a result of |
| 172 | the sale of the assets or stock of the dealer. The dealer shall |
| 173 | return the property listed in this subsection to the licensee |
| 174 | within 90 days after the effective date of the termination, |
| 175 | cancellation, or nonrenewal. The licensee shall supply the |
| 176 | dealer with reasonable instructions regarding the method by |
| 177 | which the dealer must return the property. The compensation for |
| 178 | the property shall be paid by the licensee within 60 days after |
| 179 | the tender of inventory and other items, if the dealer has clear |
| 180 | title to the inventory and other items and is in a position to |
| 181 | convey that title to the manufacturer or distributor. If the |
| 182 | inventory or other items are subject to a security interest, the |
| 183 | licensee may make payment jointly to the dealer and the holder |
| 184 | of the security interest. |
| 185 |
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| 186 | A motor vehicle dealer who can demonstrate that a violation of, |
| 187 | or failure to comply with, any of the preceding provisions by an |
| 188 | applicant or licensee will or can adversely and pecuniarily |
| 189 | affect the complaining dealer, shall be entitled to pursue all |
| 190 | of the remedies, procedures, and rights of recovery available |
| 191 | under ss. 320.695 and 320.697. |
| 192 | Section 4. Subsections (1) and (5) of section 320.642, |
| 193 | Florida Statutes, are amended, and subsections (7) and (8) are |
| 194 | added to that section, to read: |
| 195 | 320.642 Dealer licenses in areas previously served; |
| 196 | procedure.-- |
| 197 | (1) Any licensee who proposes to establish an additional |
| 198 | motor vehicle dealership or permit the relocation of an existing |
| 199 | dealer to a location within a community or territory where the |
| 200 | same line-make vehicle is presently represented by a franchised |
| 201 | motor vehicle dealer or dealers shall give written notice of its |
| 202 | intention by certified mail to the department. Such notice shall |
| 203 | state: |
| 204 | (a) The specific location at which the additional or |
| 205 | relocated motor vehicle dealership will be established. |
| 206 | (b) The date on or after which the licensee intends to be |
| 207 | engaged in business with the additional or relocated motor |
| 208 | vehicle dealer at the proposed location. |
| 209 | (c) The identity of all motor vehicle dealers who are |
| 210 | franchised to sell the same line-make vehicle with licensed |
| 211 | locations in the county or any contiguous county to the county |
| 212 | where the additional or relocated motor vehicle dealer is |
| 213 | proposed to be located. |
| 214 | (d) The names and addresses of the dealer-operator and |
| 215 | principal investors in the proposed additional or relocated |
| 216 | motor vehicle dealership. |
| 217 |
|
| 218 | Immediately upon receipt of such notice the department shall |
| 219 | cause a notice to be published in the Florida Administrative |
| 220 | Weekly. The published notice shall state that a petition or |
| 221 | complaint by any dealer with standing to protest pursuant to |
| 222 | subsection (3) must be filed not more than 30 days from the date |
| 223 | of publication of the notice in the Florida Administrative |
| 224 | Weekly. The published notice shall describe and identify the |
| 225 | proposed dealership sought to be licensed, and the department |
| 226 | shall cause a copy of the notice to be mailed to those dealers |
| 227 | identified in the licensee's notice under paragraph (c). |
| 228 | (5)(a) The opening or reopening of the same or a successor |
| 229 | motor vehicle dealer within 12 months is shall not be considered |
| 230 | an additional motor vehicle dealer subject to protest within the |
| 231 | meaning of this section, if: |
| 232 | 1.(a) The opening or reopening is within the same or an |
| 233 | adjacent county and, is within 2 miles of the former motor |
| 234 | vehicle dealer location;, |
| 235 | 2.(b) There is no dealer within 25 miles of the proposed |
| 236 | location or the proposed location is further from each existing |
| 237 | dealer of the same line-make than the prior location is from |
| 238 | each dealer of the same line-make within 25 miles of the new |
| 239 | location;, |
| 240 | 3.(c) The opening or reopening is within 6 miles of the |
| 241 | prior location and, if any existing motor vehicle dealer of the |
| 242 | same line-make is located within 15 miles of the former |
| 243 | location, the proposed location is no closer to any existing |
| 244 | dealer of the same line-make within 15 miles of the proposed |
| 245 | location;, or |
| 246 | 4.(d) The opening or reopening is within 6 miles of the |
| 247 | prior location and, if all existing motor vehicle dealers of the |
| 248 | same line-make are beyond 15 miles of the former location, the |
| 249 | proposed location is further than 15 miles from any existing |
| 250 | motor vehicle dealer of the same line-make. |
| 251 | (b) Any other such opening or reopening shall constitute |
| 252 | an additional motor vehicle dealer within the meaning of this |
| 253 | section. |
| 254 | (c) If a motor vehicle dealer has been opened or reopened |
| 255 | pursuant to this subsection, the licensee may not propose a |
| 256 | motor vehicle dealer of the same line-make to be located within |
| 257 | 4 miles of the previous location of such dealer for 2 years |
| 258 | after the date the relocated dealership opens. |
| 259 | (7) Measurements of the distance between proposed or |
| 260 | existing dealer locations required by this section shall be |
| 261 | taken from the geometric centroid of the property that |
| 262 | encompasses all of the existing or proposed motor vehicle dealer |
| 263 | operations. |
| 264 | (8) The department shall not be obligated to determine the |
| 265 | accuracy of any distance asserted by any party in a notice |
| 266 | submitted to it. Any dispute concerning a distance measurement |
| 267 | asserted by a party shall be resolved by a hearing conducted in |
| 268 | accordance with ss. 120.569 and 120.57. |
| 269 | Section 5. This act shall take effect July 1, 2006. |