HB 827

1
A bill to be entitled
2An act relating to motor vehicle dealers; amending s.
3320.27, F.S.; revising the definition of "motor vehicle
4dealer"; removing an exception to certain registration
5requirements for certain motor vehicles manufactured on
6truck chassis; removing a requirement that the transfer of
7a motor vehicle by a dealer not meeting specified
8qualifications must be titled as a used vehicle; providing
9for denial, suspension, or revocation of license for
10operation of an unlawful additional motor vehicle
11dealership location or unlawful supply of motor vehicles;
12providing for a cause of action against a motor vehicle
13dealer who engages in the business of an unauthorized and
14unlawful additional motor vehicle dealership location;
15creating s. 320.6425, F.S.; providing conditions that
16constitute the establishment of an unlawful and additional
17motor vehicle dealership location; providing that a motor
18vehicle dealer that supplies a motor vehicle to the
19unlawful and additional motor vehicle dealership location
20shall be deemed to have unlawfully established an
21additional motor vehicle dealership location and
22unlawfully conducted business within this state as a
23distributor and licensee; providing that certain dealers
24may seek damages; providing an effective date.
25
26Be It Enacted by the Legislature of the State of Florida:
27
28     Section 1.  Paragraph (c) of subsection (1) and paragraph
29(b) of subsection (9) of section 320.27, Florida Statutes, are
30amended, and subsection (15) is added to that section, to read:
31     320.27  Motor vehicle dealers.--
32     (1)  DEFINITIONS.--The following words, terms, and phrases
33when used in this section have the meanings respectively
34ascribed to them in this subsection, except where the context
35clearly indicates a different meaning:
36     (c)  "Motor vehicle dealer" means any person engaged in the
37business of buying, selling, or dealing in motor vehicles or
38offering or displaying motor vehicles for sale at wholesale or
39retail, or who may service and repair motor vehicles pursuant to
40an agreement as defined in s. 320.60(1). Any person who buys,
41sells, or deals in three or more motor vehicles in any 12-month
42period or who offers or displays for sale three or more motor
43vehicles in any 12-month period shall be prima facie presumed to
44be engaged in such business. The terms "selling" and "sale"
45include lease-purchase transactions. A motor vehicle dealer may,
46at retail or wholesale, sell a recreational vehicle as described
47in s. 320.01(1)(b)1.-6. and 8., acquired in exchange for the
48sale of a motor vehicle, provided such acquisition is incidental
49to the principal business of being a motor vehicle dealer.
50However, a motor vehicle dealer may not buy a recreational
51vehicle for the purpose of resale unless licensed as a
52recreational vehicle dealer pursuant to s. 320.771. A motor
53vehicle dealer may apply for a certificate of title to a motor
54vehicle required to be registered under s. 320.08(2)(b), (c),
55and (d), using a manufacturer's statement of origin as permitted
56by s. 319.23(1), only if such dealer is authorized by a
57franchised agreement as defined in s. 320.60(1), to buy, sell,
58or deal in such vehicle and is authorized by such agreement to
59perform delivery and preparation obligations and warranty defect
60adjustments on the motor vehicle; however, provided this
61limitation shall not apply to recreational vehicles or, van
62conversions, or any other motor vehicle manufactured on a truck
63chassis. The transfer of a motor vehicle by a dealer not meeting
64these qualifications shall be titled as a used vehicle. The
65classifications of motor vehicle dealers are defined as follows:
66     1.  "Franchised motor vehicle dealer" means any person who
67engages in the business of repairing, servicing, buying,
68selling, or dealing in motor vehicles pursuant to an agreement
69as defined in s. 320.60(1).
70     2.  "Independent motor vehicle dealer" means any person
71other than a franchised or wholesale motor vehicle dealer who
72engages in the business of buying, selling, or dealing in motor
73vehicles, and who may service and repair motor vehicles.
74     3.  "Wholesale motor vehicle dealer" means any person who
75engages exclusively in the business of buying, selling, or
76dealing in motor vehicles at wholesale or with motor vehicle
77auctions. Such person shall be licensed to do business in this
78state, shall not sell or auction a vehicle to any person who is
79not a licensed dealer, and shall not have the privilege of the
80use of dealer license plates. Any person who buys, sells, or
81deals in motor vehicles at wholesale or with motor vehicle
82auctions on behalf of a licensed motor vehicle dealer and as a
83bona fide employee of such licensed motor vehicle dealer is not
84required to be licensed as a wholesale motor vehicle dealer. In
85such cases it shall be prima facie presumed that a bona fide
86employer-employee relationship exists. A wholesale motor vehicle
87dealer shall be exempt from the display provisions of this
88section but shall maintain an office wherein records are kept in
89order that those records may be inspected.
90     4.  "Motor vehicle auction" means any person offering motor
91vehicles or recreational vehicles for sale to the highest bidder
92where buyers are licensed motor vehicle dealers. Such person
93shall not sell a vehicle to anyone other than a licensed motor
94vehicle dealer.
95     5.  "Salvage motor vehicle dealer" means any person who
96engages in the business of acquiring salvaged or wrecked motor
97vehicles for the purpose of reselling them and their parts.
98
99The term "motor vehicle dealer" does not include persons not
100engaged in the purchase or sale of motor vehicles as a business
101who are disposing of vehicles acquired for their own use or for
102use in their business or acquired by foreclosure or by operation
103of law, provided such vehicles are acquired and sold in good
104faith and not for the purpose of avoiding the provisions of this
105law; persons engaged in the business of manufacturing, selling,
106or offering or displaying for sale at wholesale or retail no
107more than 25 trailers in a 12-month period; public officers
108while performing their official duties; receivers; trustees,
109administrators, executors, guardians, or other persons appointed
110by, or acting under the judgment or order of, any court; banks,
111finance companies, or other loan agencies that acquire motor
112vehicles as an incident to their regular business; motor vehicle
113brokers; and motor vehicle rental and leasing companies that
114sell motor vehicles to motor vehicle dealers licensed under this
115section. Vehicles owned under circumstances described in this
116paragraph may be disposed of at retail, wholesale, or auction,
117unless otherwise restricted. A manufacturer of fire trucks,
118ambulances, or school buses may sell such vehicles directly to
119governmental agencies or to persons who contract to perform or
120provide firefighting, ambulance, or school transportation
121services exclusively to governmental agencies without processing
122such sales through dealers if such fire trucks, ambulances,
123school buses, or similar vehicles are not presently available
124through motor vehicle dealers licensed by the department.
125     (9)  DENIAL, SUSPENSION, OR REVOCATION.--
126     (b)  The department may deny, suspend, or revoke any
127license issued hereunder or under the provisions of s. 320.77 or
128s. 320.771 upon proof that a licensee has committed, with
129sufficient frequency so as to establish a pattern of wrongdoing
130on the part of a licensee, violations of one or more of the
131following activities:
132     1.  Representation that a demonstrator is a new motor
133vehicle, or the attempt to sell or the sale of a demonstrator as
134a new motor vehicle without written notice to the purchaser that
135the vehicle is a demonstrator. For the purposes of this section,
136a "demonstrator," a "new motor vehicle," and a "used motor
137vehicle" shall be defined as under s. 320.60.
138     2.  Unjustifiable refusal to comply with a licensee's
139responsibility under the terms of the new motor vehicle warranty
140issued by its respective manufacturer, distributor, or importer.
141However, if such refusal is at the direction of the
142manufacturer, distributor, or importer, such refusal shall not
143be a ground under this section.
144     3.  Misrepresentation or false, deceptive, or misleading
145statements with regard to the sale or financing of motor
146vehicles which any motor vehicle dealer has, or causes to have,
147advertised, printed, displayed, published, distributed,
148broadcast, televised, or made in any manner with regard to the
149sale or financing of motor vehicles.
150     4.  Failure by any motor vehicle dealer to provide a
151customer or purchaser with an odometer disclosure statement and
152a copy of any bona fide written, executed sales contract or
153agreement of purchase connected with the purchase of the motor
154vehicle purchased by the customer or purchaser.
155     5.  Failure of any motor vehicle dealer to comply with the
156terms of any bona fide written, executed agreement, pursuant to
157the sale of a motor vehicle.
158     6.  Failure to apply for transfer of a title as prescribed
159in s. 319.23(6).
160     7.  Use of the dealer license identification number by any
161person other than the licensed dealer or his or her designee.
162     8.  Failure to continually meet the requirements of the
163licensure law.
164     9.  Representation to a customer or any advertisement to
165the public representing or suggesting that a motor vehicle is a
166new motor vehicle if such vehicle lawfully cannot be titled in
167the name of the customer or other member of the public by the
168seller using a manufacturer's statement of origin as permitted
169in s. 319.23(1).
170     10.  Requirement by any motor vehicle dealer that a
171customer or purchaser accept equipment on his or her motor
172vehicle which was not ordered by the customer or purchaser.
173     11.  Requirement by any motor vehicle dealer that any
174customer or purchaser finance a motor vehicle with a specific
175financial institution or company.
176     12.  Requirement by any motor vehicle dealer that the
177purchaser of a motor vehicle contract with the dealer for
178physical damage insurance.
179     13.  Perpetration of a fraud upon any person as a result of
180dealing in motor vehicles, including, without limitation, the
181misrepresentation to any person by the licensee of the
182licensee's relationship to any manufacturer, importer, or
183distributor.
184     14.  Violation of any of the provisions of s. 319.35 by any
185motor vehicle dealer.
186     15.  Sale by a motor vehicle dealer of a vehicle offered in
187trade by a customer prior to consummation of the sale, exchange,
188or transfer of a newly acquired vehicle to the customer, unless
189the customer provides written authorization for the sale of the
190trade-in vehicle prior to delivery of the newly acquired
191vehicle.
192     16.  Willful failure to comply with any administrative rule
193adopted by the department or the provisions of s. 320.131(8).
194     17.  Violation of chapter 319, this chapter, or ss.
195559.901-559.9221, which has to do with dealing in or repairing
196motor vehicles or mobile homes. Additionally, in the case of
197used motor vehicles, the willful violation of the federal law
198and rule in 15 U.S.C. s. 2304, 16 C.F.R. part 455, pertaining to
199the consumer sales window form.
200     18.  Failure to maintain evidence of notification to the
201owner or coowner of a vehicle regarding registration or titling
202fees owed as required in s. 320.02(17).
203     19.  Failure to register a mobile home salesperson with the
204department as required by this section.
205     20.  Any violation of s. 320.6425 by any motor vehicle
206dealer, including the operation of an unlawful additional motor
207vehicle dealership location or unlawful supply of motor
208vehicles.
209     (15)  PRIVATE ENFORCEMENT.--A franchised motor vehicle
210dealer of the same line-make has a cause of action under this
211section against a motor vehicle dealer who engages, with
212sufficient frequency so as to establish a pattern of wrongdoing,
213in the business of an unauthorized and unlawful additional motor
214vehicle dealership location as described in s. 320.6425. The
215cause of action for injunctive relief and actual damages,
216including lost profit, court costs, and a reasonable attorney's
217fee, may be brought in any court of competent jurisdiction.
218     Section 2.  Section 320.6425, Florida Statutes, is created
219to read:
220     320.6425  Unauthorized and additional motor vehicle
221dealerships.--
222     (1)  An unlawful and additional motor vehicle dealership
223location, as contemplated by s. 320.642, shall be deemed to be
224established when motor vehicles are sold from a location in this
225state for retail purposes if the motor vehicle dealer
226transacting such sales:
227     (a)  Is not located in this state;
228     (b)  Is not a licensed motor vehicle dealer authorized by a
229franchise agreement to sell the specific line-make of vehicle;
230or
231     (c)  Is a licensed motor vehicle dealer authorized by a
232franchise agreement to sell the specific line-make of vehicle,
233but such sales are transacted at a location other than that
234permitted by a license issued to the motor vehicle dealer by the
235department.
236     (2)  A sale for retail purposes is the first sale of the
237motor vehicle to a customer for personal use or the first sale
238of the motor vehicle for commercial use, such as leasing, so
239long as a motor vehicle sold for commercial use is not resold
240within 90 days. This section shall apply regardless of whether
241the title issued, either in this state or another state,
242pursuant to such sale is designated as new or used. However,
243this section shall not prohibit a motor vehicle dealer from
244reselling any motor vehicle it receives in trade for the sale of
245another motor vehicle.
246     (3)  Any motor vehicle dealer, whether located in this
247state or not, which supplies any motor vehicle to the unlawful
248and additional motor vehicle dealership location established in
249subsection (1) shall be deemed to have unlawfully:
250     (a)  Established an additional motor vehicle dealership
251location in violation of s. 320.642; and
252     (b)  Conducted business within this state as a distributor
253and licensee as contemplated by s. 320.60, in violation of ss.
254320.61 and 320.642.
255     (4)  Any same line-make motor vehicle dealer who suffers
256damages as a result of the unlawful and additional motor vehicle
257dealership location may seek damages against the distributor or
258licensee as established by subsection (3) and may seek all
259remedies, procedures, and rights of recovery available under ss.
260320.695 and 320.697.
261     (5)  Nothing in this section shall prohibit the transfer of
262a motor vehicle, by sale or trade, from one franchised dealer to
263another dealer authorized by franchise agreement to sell the
264same line-make of motor vehicles.
265     Section 3.  This act shall take effect October 1, 2008.


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