Florida Senate - 2013 SB 1726 By Senator Latvala 20-01061-13 20131726__ 1 A bill to be entitled 2 An act relating to motor vehicle dealers; amending s. 3 320.27, F.S.; defining the term “independent motor 4 vehicle sales agent”; providing requirements for 5 obtaining an independent motor vehicle sales agent 6 license; providing a fee for licensure; conforming 7 provisions to changes made by the act; amending ss. 8 316.2935, 319.33, 320.1316, 320.273, 501.021, and 9 537.012, F.S.; conforming provisions to changes made 10 by the act; providing an effective date. 11 12 Be It Enacted by the Legislature of the State of Florida: 13 14 Section 1. Section 320.27, Florida Statutes, is amended to 15 read: 16 320.27 Motor vehicle dealers; independent motor vehicle 17 sales agents.— 18 (1) DEFINITIONS.—The following words, terms, and phrases 19 when used in this section have the meanings respectively 20 ascribed to them in this subsection, except where the context 21 clearly indicates a different meaning: 22 (a) “Department” means the Department of Highway Safety and 23 Motor Vehicles. 24 (b) “Motor vehicle” means any motor vehicle of the type and 25 kind required to be registered and titled under chapter 319 and 26 this chapter, except a recreational vehicle, moped, motorcycle 27 powered by a motor with a displacement of 50 cubic centimeters 28 or less, or mobile home. 29 (c) “Motor vehicle dealer” means any person engaged in the 30 business of buying, selling, or dealing in motor vehicles or 31 offering or displaying motor vehicles for sale at wholesale or 32 retail, or who may service and repair motor vehicles pursuant to 33 an agreement as defined in s. 320.60(1). Any person who buys, 34 sells, or deals in three or more motor vehicles in any 12-month 35 period or who offers or displays for sale three or more motor 36 vehicles in any 12-month period shall be prima facie presumed to 37 be engaged in such business. The terms “selling” and “sale” 38 include lease-purchase transactions. A motor vehicle dealer may, 39 at retail or wholesale, sell a recreational vehicle as described 40 in s. 320.01(1)(b)1.-6. and 8., acquired in exchange for the 41 sale of a motor vehicle, provided such acquisition is incidental 42 to the principal business of being a motor vehicle dealer. 43 However, a motor vehicle dealer may not buy a recreational 44 vehicle for the purpose of resale unless licensed as a 45 recreational vehicle dealer pursuant to s. 320.771. A motor 46 vehicle dealer may apply for a certificate of title to a motor 47 vehicle required to be registered under s. 320.08(2)(b), (c), 48 and (d), using a manufacturer’s statement of origin as permitted 49 by s. 319.23(1), only if such dealer is authorized by a 50 franchised agreement as defined in s. 320.60(1), to buy, sell, 51 or deal in such vehicle and is authorized by such agreement to 52 perform delivery and preparation obligations and warranty defect 53 adjustments on the motor vehicle; provided this limitation shall 54 not apply to recreational vehicles, van conversions, or any 55 other motor vehicle manufactured on a truck chassis. The 56 transfer of a motor vehicle by a dealer not meeting these 57 qualifications shall be titled as a used vehicle. The 58 classifications of motor vehicle dealers are defined as follows: 59 1. “Franchised motor vehicle dealer” means any person who 60 engages in the business of repairing, servicing, buying, 61 selling, or dealing in motor vehicles pursuant to an agreement 62 as defined in s. 320.60(1). 63 2. “Independent motor vehicle dealer” means any person 64 other than a franchised or wholesale motor vehicle dealer who 65 engages in the business of buying, selling, or dealing in motor 66 vehicles, and who may service and repair motor vehicles. 67 3. “Wholesale motor vehicle dealer” means any person who 68 engages exclusively in the business of buying, selling, or 69 dealing in motor vehicles at wholesale or with motor vehicle 70 auctions. Such person shall be licensed to do business in this 71 state, shall not sell or auction a vehicle to any person who is 72 not a licensed dealer, and shall not have the privilege of the 73 use of dealer license plates. Any person who buys, sells, or 74 deals in motor vehicles at wholesale or with motor vehicle 75 auctions on behalf of a licensed motor vehicle dealer and as a 76 bona fide employee of such licensed motor vehicle dealer is not 77 required to be licensed as a wholesale motor vehicle dealer. In 78 such cases it shall be prima facie presumed that a bona fide 79 employer-employee relationship exists. A wholesale motor vehicle 80 dealer shall be exempt from the display provisions of this 81 section but shall maintain an office wherein records are kept in 82 order that those records may be inspected. 83 4. “Motor vehicle auction” means any person offering motor 84 vehicles or recreational vehicles for sale to the highest bidder 85 where buyers are licensed motor vehicle dealers. Such person 86 shall not sell a vehicle to anyone other than a licensed motor 87 vehicle dealer. 88 5. “Salvage motor vehicle dealer” means any person who 89 engages in the business of acquiring salvaged or wrecked motor 90 vehicles for the purpose of reselling them and their parts. 91 92 The term “motor vehicle dealer” does not include persons not 93 engaged in the purchase or sale of motor vehicles as a business 94 who are disposing of vehicles acquired for their own use or for 95 use in their business or acquired by foreclosure or by operation 96 of law, provided such vehicles are acquired and sold in good 97 faith and not for the purpose of avoiding the provisions of this 98 law; persons engaged in the business of manufacturing, selling, 99 or offering or displaying for sale at wholesale or retail no 100 more than 25 trailers in a 12-month period; public officers 101 while performing their official duties; receivers; trustees, 102 administrators, executors, guardians, or other persons appointed 103 by, or acting under the judgment or order of, any court; banks, 104 finance companies, or other loan agencies that acquire motor 105 vehicles as an incident to their regular business; motor vehicle 106 brokers; and motor vehicle rental and leasing companies that 107 sell motor vehicles to motor vehicle dealers licensed under this 108 section. Vehicles owned under circumstances described in this 109 paragraph may be disposed of at retail, wholesale, or auction, 110 unless otherwise restricted. A manufacturer of fire trucks, 111 ambulances, or school buses may sell such vehicles directly to 112 governmental agencies or to persons who contract to perform or 113 provide firefighting, ambulance, or school transportation 114 services exclusively to governmental agencies without processing 115 such sales through dealers if such fire trucks, ambulances, 116 school buses, or similar vehicles are not presently available 117 through motor vehicle dealers licensed by the department. 118 (d) “Motor vehicle broker” means any person engaged in the 119 business of offering to procure or procuring motor vehicles for 120 the general public, or who holds himself or herself out through 121 solicitation, advertisement, or otherwise as one who offers to 122 procure or procures motor vehicles for the general public, and 123 who does not store, display, or take ownership of any vehicles 124 for the purpose of selling such vehicles. 125 (e) “Person” means any natural person, firm, partnership, 126 association, or corporation. 127 (f) “Bona fide employee” means a person who is employed by 128 a licensed motor vehicle dealer and receives annually an 129 Internal Revenue Service Form W-2, or an independent contractor 130 who has a written contract with a licensed motor vehicle dealer 131 and receives annually an Internal Revenue Service Form 1099, for 132 the purpose of acting in the capacity of or conducting motor 133 vehicle sales transactions as a motor vehicle dealer. 134 (g) “Independent motor vehicle sales agent” means any 135 person other than a bona fide employee who is associated with a 136 motor vehicle dealer and is acting in the capacity of or 137 conducting motor vehicle sales transactions as a motor vehicle 138 dealer. An independent motor vehicle sales agent purchases a 139 motor vehicle using his or her own investment of 50 percent or 140 more of the total cost of the motor vehicle. 141 (2)(a) LICENSE REQUIRED.—No person shall engage in business 142 as, serve in the capacity of, or act as a motor vehicle dealer 143 in this state without first obtaining a license therefor in the 144 appropriate classification as provided in this section. With the 145 exception of transactions with motor vehicle auctions, no person 146 other than a licensed motor vehicle dealer may advertise for 147 sale any motor vehicle belonging to another party unless as a 148 direct result of a bona fide legal proceeding, court order, 149 settlement of an estate, or by operation of law. However, owners 150 of motor vehicles titled in their names may advertise and offer 151 vehicles for sale on their own behalf. It shall be unlawful for 152 a licensed motor vehicle dealer to allow any person other than a 153 bona fide employee to use the motor vehicle dealer license for 154 the purpose of acting in the capacity of or conducting motor 155 vehicle sales transactions as a motor vehicle dealer. Any person 156 selling or offering a motor vehicle for sale in violation of the 157 licensing requirements of this subsection, or who misrepresents 158 to any person its relationship with any manufacturer, importer, 159 or distributor, in addition to the penalties provided herein, 160 shall be deemed guilty of an unfair and deceptive trade practice 161 as defined in part II of chapter 501 and shall be subject to the 162 provisions of subsections (8) and (9). 163 (b) To serve in the capacity of or act as an independent 164 motor vehicle sales agent in this state, an agent must be 165 licensed separately from a motor vehicle dealer. To obtain an 166 independent motor vehicle sales agent license, an agent must: 167 1. Possess a valid driver license. 168 2. Complete a 6-hour training course containing material 169 similar to material in the course required for a motor vehicle 170 dealer license, as provided in paragraph (4)(b). 171 3. Receive a passing grade on a test measuring mastery of 172 the course required in subparagraph 2. 173 4. Be insured under the associated motor vehicle dealer’s 174 garage liability insurance. 175 5. Not have a felony conviction in the last 10 years. 176 (3) APPLICATION AND FEE.—The application for the license 177 shall be in such form as may be prescribed by the department and 178 shall be subject to such rules with respect thereto as may be so 179 prescribed by it. Such application shall be verified by oath or 180 affirmation and shall contain a full statement of the name and 181 birth date of the person or persons applying therefor; the name 182 of the firm or copartnership, with the names and places of 183 residence of all members thereof, if such applicant is a firm or 184 copartnership; the names and places of residence of the 185 principal officers, if the applicant is a body corporate or 186 other artificial body; the name of the state under whose laws 187 the corporation is organized; the present and former place or 188 places of residence of the applicant; and prior business in 189 which the applicant has been engaged and the location thereof. 190 Such application shall describe the exact location of the place 191 of business and shall state whether the place of business is 192 owned by the applicant and when acquired, or, if leased, a true 193 copy of the lease shall be attached to the application. The 194 applicant shall certify that the location provides an adequately 195 equipped office and is not a residence; that the location 196 affords sufficient unoccupied space upon and within which 197 adequately to store all motor vehicles offered and displayed for 198 sale; and that the location is a suitable place where the 199 applicant can in good faith carry on such business and keep and 200 maintain books, records, and files necessary to conduct such 201 business, which shall be available at all reasonable hours to 202 inspection by the department or any of its inspectors or other 203 employees. The applicant shall certify that the business of a 204 motor vehicle dealer or independent motor vehicle sales agent is 205 the principal business which shall be conducted at that 206 location. The application shall contain a statement that the 207 applicant is either franchised by a manufacturer of motor 208 vehicles, in which case the name of each motor vehicle that the 209 applicant is franchised to sell shall be included, or an 210 independent, (nonfranchised) motor vehicle dealer or independent 211 motor vehicle sales agent. The application shall contain other 212 relevant information as may be required by the department, 213 including evidence that the applicant is insured under a garage 214 liability insurance policy or a general liability insurance 215 policy coupled with a business automobile policy, which shall 216 include, at a minimum, $25,000 combined single-limit liability 217 coverage including bodily injury and property damage protection 218 and $10,000 personal injury protection. However, a salvage motor 219 vehicle dealer as defined in subparagraph (1)(c)5. is exempt 220 from the requirements for garage liability insurance and 221 personal injury protection insurance on those vehicles that 222 cannot be legally operated on roads, highways, or streets in 223 this state. Franchise dealers must submit a garage liability 224 insurance policy, and all other dealers must submit a garage 225 liability insurance policy or a general liability insurance 226 policy coupled with a business automobile policy. Such policy 227 shall be for the license period, and evidence of a new or 228 continued policy shall be delivered to the department at the 229 beginning of each license period. Upon making initial 230 application, the applicant shall pay to the department a fee of 231 $300 in addition to any other fees now required by law. The fee 232 for an applicant for an independent motor vehicle sales agent 233 license shall be no more than 50 percent of the fee to obtain a 234 motor vehicle dealer license. Upon making a subsequent renewal 235 application, the applicant shall pay to the department a fee of 236 $75 in addition to any other fees now required by law. Upon 237 making an application for a change of location, the person shall 238 pay a fee of $50 in addition to any other fees now required by 239 law. The department shall, in the case of every application for 240 initial licensure, verify whether certain facts set forth in the 241 application are true. Each applicant, general partner in the 242 case of a partnership, or corporate officer and director in the 243 case of a corporate applicant, must file a set of fingerprints 244 with the department for the purpose of determining any prior 245 criminal record or any outstanding warrants. The department 246 shall submit the fingerprints to the Department of Law 247 Enforcement for state processing and forwarding to the Federal 248 Bureau of Investigation for federal processing. The actual cost 249 of state and federal processing shall be borne by the applicant 250 and is in addition to the fee for licensure. The department may 251 issue a license to an applicant pending the results of the 252 fingerprint investigation, which license is fully revocable if 253 the department subsequently determines that any facts set forth 254 in the application are not true or correctly represented. 255 (4) LICENSE CERTIFICATE.— 256 (a) A license certificate shall be issued by the department 257 in accordance with such application when the application is 258 regular in form and in compliance with the provisions of this 259 section. The license certificate may be in the form of a 260 document or a computerized card as determined by the department. 261 The actual cost of each original, additional, or replacement 262 computerized card shall be borne by the licensee and is in 263 addition to the fee for licensure. Such license, when so issued, 264 entitles the licensee to carry on and conduct the business of a 265 motor vehicle dealer. Each license issued to a franchise motor 266 vehicle dealer expires annually on December 31 unless revoked or 267 suspended before
prior tothat date. Each license issued to an 268 independent or wholesale dealer or auction or independent motor 269 vehicle sales agent expires annually on April 30 unless revoked 270 or suspended before prior tothat date. At least Not less than271 60 days before prior tothe license expiration date, the 272 department shall deliver or mail to each licensee the necessary 273 renewal forms. Each independent dealer shall certify that the 274 dealer (owner, partner, officer, or director of the licensee, or 275 a full-time employee of the licensee that holds a responsible 276 management-level position) has completed 8 hours of continuing 277 education before prior tofiling the renewal forms with the 278 department. Such certification shall be filed once every 2 279 years. The continuing education shall include at least 2 hours 280 of legal or legislative issues, 1 hour of department issues, and 281 5 hours of relevant motor vehicle industry topics. Continuing 282 education shall be provided by dealer schools licensed under 283 paragraph (b) either in a classroom setting or by 284 correspondence. Such schools shall provide certificates of 285 completion to the department and the customer which shall be 286 filed with the license renewal form, and such schools may charge 287 a fee for providing continuing education. Any licensee who does 288 not file his or her application and fees and any other requisite 289 documents, as required by law, with the department at least 30 290 days before prior tothe license expiration date shall cease to 291 engage in business as a motor vehicle dealer or independent 292 motor vehicle sales agent on the license expiration date. A 293 renewal filed with the department within 45 days after the 294 expiration date shall be accompanied by a delinquent fee of 295 $100. Thereafter, a new application is required, accompanied by 296 the initial license fee. A license certificate duly issued by 297 the department may be modified by endorsement to show a change 298 in the name of the licensee, provided, as shown by affidavit of 299 the licensee, the majority ownership interest of the licensee 300 has not changed or the name of the person appearing as 301 franchisee on the sales and service agreement has not changed. 302 Modification of a license certificate to show any name change as 303 herein provided shall not require initial licensure or 304 reissuance of dealer tags; however, any dealer obtaining a name 305 change shall transact all business in and be properly identified 306 by that name. All documents relative to licensure shall reflect 307 the new name. In the case of a franchise dealer, the name change 308 shall be approved by the manufacturer, distributor, or importer. 309 A licensee applying for a name change endorsement shall pay a 310 fee of $25 which fee shall apply to the change in the name of a 311 main location and all additional locations licensed under the 312 provisions of subsection (5). Each initial license application 313 received by the department shall be accompanied by verification 314 that, within the preceding 6 months, the applicant, or one or 315 more of his or her designated employees, has attended a training 316 and information seminar conducted by a licensed motor vehicle 317 dealer or independent motor vehicle sales agent training school. 318 Any applicant for a new franchised motor vehicle dealer license 319 who has held a valid franchised motor vehicle dealer license 320 continuously for the past 2 years and who remains in good 321 standing with the department is exempt from the prelicensing 322 training requirement. Such seminar shall include, but is not 323 limited to, statutory dealer requirements, which requirements 324 include required bookkeeping and recordkeeping procedures, 325 requirements for the collection of sales and use taxes, and such 326 other information that in the opinion of the department will 327 promote good business practices. No seminar may exceed 8 hours 328 in length. 329 (b) Each initial license application received by the 330 department for licensure under subparagraph (1)(c)2. shall be 331 accompanied by verification that, within the preceding 6 months, 332 the applicant (owner, partner, officer, or director of the 333 applicant, or a full-time employee of the applicant that holds a 334 responsible management-level position) has successfully 335 completed training conducted by a licensed motor vehicle dealer 336 or independent motor vehicle sales agent training school. Such 337 training must include training in titling and registration of 338 motor vehicles, laws relating to unfair and deceptive trade 339 practices, laws relating to financing with regard to buy-here, 340 pay-here operations, and such other information that in the 341 opinion of the department will promote good business practices. 342 Successful completion of this training shall be determined by 343 examination administered at the end of the course and attendance 344 of no less than 90 percent of the total hours required by such 345 school. Any applicant who had held a valid motor vehicle dealer 346 or independent motor vehicle sales agent dealer’slicense 347 continuously within the past 2 years and who remains in good 348 standing with the department is exempt from the prelicensing 349 requirements of this section. The department shall have the 350 authority to adopt any rule necessary for establishing the 351 training curriculum; length of training, which shall not exceed 352 8 hours for required department topics and shall not exceed an 353 additional 24 hours for topics related to other regulatory 354 agencies’ instructor qualifications; and any other requirements 355 under this section. The curriculum for other subjects shall be 356 approved by any and all other regulatory agencies having 357 jurisdiction over specific subject matters; however, the overall 358 administration of the licensing of these dealer schools and 359 their instructors shall remain with the department. Such schools 360 are authorized to charge a fee. 361 (5) SUPPLEMENTAL LICENSE.—Any person licensed hereunder 362 shall obtain a supplemental license for each permanent 363 additional place or places of business not contiguous to the 364 premises for which the original license is issued, on a form to 365 be furnished by the department, and upon payment of a fee of $50 366 for each such additional location. Upon making renewal 367 applications for such supplemental licenses, such applicant 368 shall pay $50 for each additional location. A supplemental 369 license authorizing off-premises sales shall be issued, at no 370 charge to the dealer, for a period not to exceed 10 consecutive 371 calendar days. To obtain such a temporary supplemental license 372 for off-premises sales, the applicant must be a licensed dealer; 373 must notify the applicable local department office of the 374 specific dates and location for which such license is requested, 375 display a sign at the licensed location clearly identifying the 376 dealer, and provide staff to work at the temporary location for 377 the duration of the off-premises sale; must meet any local 378 government permitting requirements; and must have permission of 379 the property owner to sell at that location. In the case of an 380 off-premises sale by a motor vehicle dealer licensed under 381 subparagraph (1)(c)1. for the sale of new motor vehicles, the 382 applicant must also include documentation notifying the 383 applicable licensee licensed under s. 320.61 of the intent to 384 engage in an off-premises sale 5 working days before prior to385 the date of the off-premises sale. The licensee shall either 386 approve or disapprove of the off-premises sale within 2 working 387 days after receiving notice; otherwise, it will be deemed 388 approved. This section does not apply to a nonselling motor 389 vehicle show or public display of new motor vehicles. 390 (6) RECORDS TO BE KEPT BY LICENSEE.—Every licensee shall 391 keep a book or record in either paper or electronic form as 392 prescribed or approved by the department for a period of 5 393 years, in which the licensee shall keep a record of the 394 purchase, sale, or exchange, or receipt for the purpose of sale, 395 of any motor vehicle, the date upon which any temporary tag was 396 issued, the date of title transfer, and a description of such 397 motor vehicle together with the name and address of the seller, 398 the purchaser, and the alleged owner or other person from whom 399 such motor vehicle was purchased or received or to whom it was 400 sold or delivered, as the case may be. Such description shall 401 include the identification or engine number, maker’s number, if 402 any, chassis number, if any, and such other numbers or 403 identification marks as may be thereon and shall also include a 404 statement that a number has been obliterated, defaced, or 405 changed, if such is the fact. When a licensee chooses to 406 maintain electronic records, the original paper documents may be 407 destroyed after the licensee successfully transfers title and 408 registration to the purchaser as required by chapter 319 for any 409 purchaser who titles and registers the motor vehicle in this 410 state. In the case of a sale to a purchaser who will title and 411 register the motor vehicle in another state or country, the 412 licensee may destroy the original paper documents after 413 successfully delivering a lawfully reassigned title or 414 manufacturer’s certificate or statement of origin to the 415 purchaser and after producing electronic images of all documents 416 related to the sale. 417 (7) CERTIFICATE OF TITLE REQUIRED.—For each used motor 418 vehicle in the possession of a licensee and offered for sale by 419 him or her, the licensee either shall have in his or her 420 possession or control a duly assigned certificate of title from 421 the owner in accordance with the provisions of chapter 319, from 422 the time when the motor vehicle is delivered to the licensee and 423 offered for sale by him or her until it has been disposed of by 424 the licensee, or shall have reasonable indicia of ownership or 425 right of possession, or shall have made proper application for a 426 certificate of title or duplicate certificate of title in 427 accordance with the provisions of chapter 319. A motor vehicle 428 dealer or independent motor vehicle sales agent may not sell or 429 offer for sale a vehicle in his or her possession unless the 430 dealer satisfies the requirements of this subsection. Reasonable 431 indicia of ownership shall include a duly assigned certificate 432 of title; in the case of a new motor vehicle, a manufacturer’s 433 certificate of origin issued to or reassigned to the dealer; a 434 consignment contract between the owner and the dealer along with 435 a secure power of attorney from the owner to the dealer 436 authorizing the dealer to apply for a duplicate certificate of 437 title and assign the title on behalf of the owner; a court order 438 awarding title to the vehicle to the dealer; a salvage 439 certificate of title; a photocopy of a duly assigned certificate 440 of title being held by a financial institution as collateral for 441 a business loan of money to the dealer (“floor plan”); a copy of 442 a canceled check or other documentation evidencing that an 443 outstanding lien on a vehicle taken in trade by a licensed 444 dealer has been satisfied and that the certificate of title will 445 be, but has not yet been, received by the dealer; a vehicle 446 purchase order or installment contract for a specific vehicle 447 identifying that vehicle as a trade-in on a replacement vehicle; 448 or a duly executed odometer disclosure statement as required by 449 Title IV of the Motor Vehicle Information and Cost Savings Act 450 of 1972 (Pub. L. No. 92-513, as amended by Pub. L. No. 94-364 451 and Pub. L. No. 100-561) and by 49 C.F.R. part 580 bearing the 452 signatures of the titled owners of a traded-in vehicle. 453 (8) PENALTY.—Any person found guilty of violating any of 454 the provisions of this section is guilty of a misdemeanor of the 455 second degree, punishable as provided in s. 775.082 or s. 456 775.083. 457 (9) DENIAL, SUSPENSION, OR REVOCATION.— 458 (a) The department may deny, suspend, or revoke any license 459 issued hereunder or under the provisions of s. 320.77 or s. 460 320.771 upon proof that an applicant or a licensee has: 461 1. Committed fraud or willful misrepresentation in 462 application for or in obtaining a license. 463 2. Been convicted of a felony. 464 3. Failed to honor a bank draft or check given to a motor 465 vehicle dealer or independent motor vehicle sales agent for the 466 purchase of a motor vehicle by another motor vehicle dealer or 467 independent motor vehicle sales agent within 10 days after 468 notification that the bank draft or check has been dishonored. 469 If the transaction is disputed, the maker of the bank draft or 470 check shall post a bond in accordance with the provisions of s. 471 559.917, and no proceeding for revocation or suspension shall be 472 commenced until the dispute is resolved. 473 4.a. Failed to provide payment within 10 business days to 474 the department for a check payable to the department that was 475 dishonored due to insufficient funds in the amount due plus any 476 statutorily authorized fee for uttering a worthless check. The 477 department shall notify an applicant or licensee when the 478 applicant or licensee makes payment to the department by a check 479 that is subsequently dishonored by the bank due to insufficient 480 funds. The applicant or licensee shall, within 10 business days 481 after receiving the notice, provide payment to the department in 482 the form of cash in the amount due plus any statutorily 483 authorized fee. If the applicant or licensee fails to make such 484 payment within 10 business days, the department may deny, 485 suspend, or revoke the applicant’s or licensee’s motor vehicle 486 dealer or independent motor vehicle sales agent license. 487 b. Stopped payment on a check payable to the department, 488 issued a check payable to the department from an account that 489 has been closed, or charged back a credit card transaction to 490 the department. If an applicant or licensee commits any such 491 act, the department may deny, suspend, or revoke the applicant’s 492 or licensee’s motor vehicle dealer or independent motor vehicle 493 sales agent license. 494 (b) The department may deny, suspend, or revoke any license 495 issued hereunder or under the provisions of s. 320.77 or s. 496 320.771 upon proof that a licensee has committed, with 497 sufficient frequency so as to establish a pattern of wrongdoing 498 on the part of a licensee, violations of one or more of the 499 following activities: 500 1. Representation that a demonstrator is a new motor 501 vehicle, or the attempt to sell or the sale of a demonstrator as 502 a new motor vehicle without written notice to the purchaser that 503 the vehicle is a demonstrator. For the purposes of this section, 504 a “demonstrator,” a “new motor vehicle,” and a “used motor 505 vehicle” shall be defined as under s. 320.60. 506 2. Unjustifiable refusal to comply with a licensee’s 507 responsibility under the terms of the new motor vehicle warranty 508 issued by its respective manufacturer, distributor, or importer. 509 However, if such refusal is at the direction of the 510 manufacturer, distributor, or importer, such refusal shall not 511 be a ground under this section. 512 3. Misrepresentation or false, deceptive, or misleading 513 statements with regard to the sale or financing of motor 514 vehicles which any motor vehicle dealer or independent motor 515 vehicle sales agent has, or causes to have, advertised, printed, 516 displayed, published, distributed, broadcast, televised, or made 517 in any manner with regard to the sale or financing of motor 518 vehicles. 519 4. Failure by any motor vehicle dealer or independent motor 520 vehicle sales agent to provide a customer or purchaser with an 521 odometer disclosure statement and a copy of any bona fide 522 written, executed sales contract or agreement of purchase 523 connected with the purchase of the motor vehicle purchased by 524 the customer or purchaser. 525 5. Failure of any motor vehicle dealer or independent motor 526 vehicle sales agent to comply with the terms of any bona fide 527 written, executed agreement, pursuant to the sale of a motor 528 vehicle. 529 6. Failure to apply for transfer of a title as prescribed 530 in s. 319.23(6). 531 7. Use of the dealer license identification number by any 532 person other than the licensed dealer or his or her designee. 533 8. Failure to continually meet the requirements of the 534 licensure law. 535 9. Representation to a customer or any advertisement to the 536 public representing or suggesting that a motor vehicle is a new 537 motor vehicle if such vehicle lawfully cannot be titled in the 538 name of the customer or other member of the public by the seller 539 using a manufacturer’s statement of origin as permitted in s. 540 319.23(1). 541 10. Requirement by any motor vehicle dealer or independent 542 motor vehicle sales agent that a customer or purchaser accept 543 equipment on his or her motor vehicle which was not ordered by 544 the customer or purchaser. 545 11. Requirement by any motor vehicle dealer or independent 546 motor vehicle sales agent that any customer or purchaser finance 547 a motor vehicle with a specific financial institution or 548 company. 549 12. Requirement by any motor vehicle dealer or independent 550 motor vehicle sales agent that the purchaser of a motor vehicle 551 contract with the dealer for physical damage insurance. 552 13. Perpetration of a fraud upon any person as a result of 553 dealing in motor vehicles, including, without limitation, the 554 misrepresentation to any person by the licensee of the 555 licensee’s relationship to any manufacturer, importer, or 556 distributor. 557 14. Violation of any of the provisions of s. 319.35 by any 558 motor vehicle dealer or independent motor vehicle sales agent. 559 15. Sale by a motor vehicle dealer or independent motor 560 vehicle sales agent of a vehicle offered in trade by a customer 561 before prior toconsummation of the sale, exchange, or transfer 562 of a newly acquired vehicle to the customer, unless the customer 563 provides written authorization for the sale of the trade-in 564 vehicle before prior todelivery of the newly acquired vehicle. 565 16. Willful failure to comply with any administrative rule 566 adopted by the department or the provisions of s. 320.131(8). 567 17. Violation of chapter 319, this chapter, or ss. 559.901 568 559.9221, which has to do with dealing in or repairing motor 569 vehicles or mobile homes. Additionally, in the case of used 570 motor vehicles, the willful violation of the federal law and 571 rule in 15 U.S.C. s. 2304, 16 C.F.R. part 455, pertaining to the 572 consumer sales window form. 573 18. Failure to maintain evidence of notification to the 574 owner or coowner of a vehicle regarding registration or titling 575 fees owed as required in s. 320.02(16). 576 19. Failure to register a mobile home salesperson with the 577 department as required by this section. 578 (c) When a motor vehicle dealer or independent motor 579 vehicle sales agent is convicted of a crime which results in his 580 or her being prohibited from continuing in that capacity, the 581 dealer may not continue in any capacity within the industry. The 582 offender shall have no financial interest, management, sales, or 583 other role in the operation of a dealership. Further, the 584 offender may not derive income from the dealership beyond 585 reasonable compensation for the sale of his or her ownership 586 interest in the business. 587 (10) SURETY BOND OR IRREVOCABLE LETTER OF CREDIT REQUIRED.— 588 (a) Annually, before any license shall be issued to a motor 589 vehicle dealer or independent motor vehicle sales agent, the 590 applicant-dealer of new or used motor vehicles shall deliver to 591 the department a good and sufficient surety bond or irrevocable 592 letter of credit, executed by the applicant-dealer as principal, 593 in the sum of $25,000. 594 (b) Surety bonds and irrevocable letters of credit shall be 595 in a form to be approved by the department and shall be 596 conditioned that the motor vehicle dealer or independent motor 597 vehicle sales agent shall comply with the conditions of any 598 written contract made by such dealer or sales agent in 599 connection with the sale or exchange of any motor vehicle and 600 shall not violate any of the provisions of chapter 319 and this 601 chapter in the conduct of the business for which the dealer or 602 sales agent is licensed. Such bonds and letters of credit shall 603 be to the department and in favor of any person in a retail or 604 wholesale transaction who shall suffer any loss as a result of 605 any violation of the conditions hereinabove contained. When the 606 department determines that a person has incurred a loss as a 607 result of a violation of chapter 319 or this chapter, it shall 608 notify the person in writing of the existence of the bond or 609 letter of credit. Such bonds and letters of credit shall be for 610 the license period, and a new bond or letter of credit or a 611 proper continuation certificate shall be delivered to the 612 department at the beginning of each license period. However, the 613 aggregate liability of the surety in any one year shall in no 614 event exceed the sum of the bond or, in the case of a letter of 615 credit, the aggregate liability of the issuing bank shall not 616 exceed the sum of the credit. 617 (c) Surety bonds shall be executed by a surety company 618 authorized to do business in the state as surety, and 619 irrevocable letters of credit shall be issued by a bank 620 authorized to do business in the state as a bank. 621 (d) Irrevocable letters of credit shall be engaged by a 622 bank as an agreement to honor demands for payment as specified 623 in this section. 624 (e) The department shall, upon denial, suspension, or 625 revocation of any license, notify the surety company of the 626 licensee, or bank issuing an irrevocable letter of credit for 627 the licensee, in writing, that the license has been denied, 628 suspended, or revoked and shall state the reason for such 629 denial, suspension, or revocation. 630 (f) Any surety company which pays any claim against the 631 bond of any licensee or any bank which honors a demand for 632 payment as a condition specified in a letter of credit of a 633 licensee shall notify the department in writing that such action 634 has been taken and shall state the amount of the claim or 635 payment. 636 (g) Any surety company which cancels the bond of any 637 licensee or any bank which cancels an irrevocable letter of 638 credit shall notify the department in writing of such 639 cancellation, giving reason for the cancellation. 640 (11) INJUNCTION.—In addition to the remedies provided in 641 this chapter and notwithstanding the existence of any adequate 642 remedy at law, the department is authorized to make application 643 to any circuit court of the state, and such circuit court shall 644 have jurisdiction, upon a hearing and for cause shown, to grant 645 a temporary or permanent injunction, or both, restraining any 646 person from acting as a motor vehicle dealer or independent 647 motor vehicle sales agent under the terms of this section 648 without being properly licensed hereunder, from violating or 649 continuing to violate any of the provisions of chapter 319, this 650 chapter, or ss. 559.901-559.9221, or for failing or refusing to 651 comply with the requirements of chapter 319, this chapter, or 652 ss. 559.901-559.9221, or any rule or regulation adopted 653 thereunder, such injunction to be issued without bond. A single 654 act in violation of the provisions of chapter 319, this chapter, 655 or chapter 559 shall be sufficient to authorize the issuance of 656 an injunction. 657 (12) CIVIL FINES; PROCEDURE.—In addition to the exercise of 658 other powers provided in this section, the department may levy 659 and collect a civil fine, in an amount not to exceed $1,000 for 660 each violation, against any licensee if it finds that the 661 licensee has violated any provision of this section or has 662 violated any other law of this state or the federal law and 663 administrative rule set forth in paragraph (9)(a) related to 664 dealing in motor vehicles. Any licensee shall be entitled to a 665 hearing pursuant to chapter 120 if the licensee contests the 666 fine levied, or about to be levied, upon him or her. 667 (13) DEPOSIT AND USE OF FEES.—The fees charged applicants 668 for both the required background investigation and the 669 computerized card as provided in this section shall be deposited 670 into the Highway Safety Operating Trust Fund and shall be used 671 to cover the cost of such service. 672 (14) EXEMPTION.—The provisions of this section do not apply 673 to persons who sell or deliver motorized disability access 674 vehicles as defined in s. 320.01. 675 Section 2. Paragraph (a) of subsection (1) and paragraph 676 (b) of subsection (5) of section 316.2935, Florida Statutes, are 677 amended to read: 678 316.2935 Air pollution control equipment; tampering 679 prohibited; penalty.— 680 (1)(a) It is unlawful for any person or motor vehicle 681 dealer or independent motor vehicle sales agent as defined in s. 682 320.27 to offer or display for retail sale or lease, sell, 683 lease, or transfer title to, a motor vehicle in Florida that has 684 been tampered with in violation of this section, as determined 685 pursuant to subsection (7). Tampering is defined as the 686 dismantling, removal, or rendering ineffective of any air 687 pollution control device or system which has been installed on a 688 motor vehicle by the vehicle manufacturer except to replace such 689 device or system with a device or system equivalent in design 690 and function to the part that was originally installed on the 691 motor vehicle. All motor vehicles sold, reassigned, or traded to 692 a licensed motor vehicle dealer are exempt from this paragraph. 693 (5) Any person who knowingly and willfully violates 694 subsection (1) shall be punished as follows: 695 (b) For a second or subsequent offense, violators, 696 including motor vehicle dealers or independent motor vehicle 697 sales agents, shall be guilty of a misdemeanor of the first 698 degree, punishable as provided in s. 775.082 or s. 775.083. In 699 addition, the Department of Highway Safety and Motor Vehicles 700 may temporarily or permanently revoke or suspend the motor 701 vehicle dealer or independent motor vehicle sales agent license 702 authorized pursuant to the provisions of s. 320.27. 703 Section 3. Paragraph (a) of subsection (7) of section 704 319.33, Florida Statutes, is amended to read: 705 319.33 Offenses involving vehicle identification numbers, 706 applications, certificates, papers; penalty.— 707 (7)(a) If all identifying numbers of a motor vehicle or 708 mobile home do not exist or have been destroyed, removed, 709 covered, altered, or defaced, or if the real identity of the 710 motor vehicle or mobile home cannot be determined, the motor 711 vehicle or mobile home shall constitute contraband and shall be 712 subject to forfeiture by a seizing law enforcement agency, 713 pursuant to applicable provisions of ss. 932.701-932.704. Such 714 motor vehicle shall not be operated on the streets and highways 715 of the state unless, by written order of a court of competent 716 jurisdiction, the department is directed to assign to the 717 vehicle a replacement vehicle identification number which shall 718 thereafter be used for identification purposes. If the motor 719 vehicle is confiscated from a licensed motor vehicle dealer or 720 independent motor vehicle sales agent as defined in s. 320.27, 721 the dealer or sales agent dealer’slicense shall be revoked. 722 Section 4. Subsection (3) of section 320.1316, Florida 723 Statutes, is amended to read: 724 320.1316 Failure to surrender vehicle or vessel.— 725 (3) The registered owner of the vehicle may dispute a 726 notice to surrender the vehicle by notifying the department of 727 the dispute in writing on forms provided by the department and 728 presenting proof that the vehicle was sold to a motor vehicle 729 dealer or independent motor vehicle sales agent licensed under 730 s. 320.27, a mobile home dealer licensed under s. 320.77, or a 731 recreational vehicle dealer licensed under s. 320.771. 732 Section 5. Section 320.273, Florida Statutes, is amended to 733 read: 734 320.273 Reinstatement of license of motor vehicle dealers. 735 When the license of a motor vehicle dealer or independent motor 736 vehicle sales agent has been revoked or suspended by the 737 department pursuant to the provisions of s. 320.27, the 738 department may for good cause reinstate the license of any 739 former licensee under this law if it determines that said former 740 licensee is rehabilitated, meets the requirements of s. 320.27, 741 files an application for license pursuant to s. 320.27(3), and 742 complies with said section. 743 Section 6. Section 501.021, Florida Statutes, is amended to 744 read: 745 501.021 Home solicitation sale; definitions.—As used in ss. 746 501.021-501.055: 747 (1) “Home solicitation sale” means a sale, lease, or rental 748 of consumer goods or services with a purchase price in excess of 749 $25 which includes all interest, service charges, finance 750 charges, postage, freight, insurance, and service or handling 751 charges, whether under single or multiple contracts, made 752 pursuant to an installment contract, a loan agreement, other 753 evidence of indebtedness, or a cash transaction or other 754 consumer credit transaction, in which:501.021 Home solicitation 755 sale; definitions.—As used in ss. 501.021-501.055: 756 (a) The seller or a person acting for him or her engages in 757 a personal solicitation of the sale, lease, or rental at a place 758 other than at the seller’s fixed location business establishment 759 where goods or services are offered or exhibited for sale, 760 lease, or rental, and 761 (b) The buyer’s agreement or offer to purchase is given to 762 the seller and the sale, lease, or rental is consummated at a 763 place other than at the seller’s fixed location business 764 establishment, 765 766 including a transaction unsolicited by the consumer and 767 consummated by telephone and without any other contact between 768 the buyer and the seller or its representative before prior to769 delivery of the goods or performance of the services. It does 770 not include a sale, lease, or rental made at any fair or similar 771 commercial exhibit or a sale, lease, or rental that results from 772 a request for specific goods or services by the purchaser or 773 lessee or a sale made by a motor vehicle dealer or independent 774 motor vehicle sales agent licensed under s. 320.27 which occurs 775 at a location or facility open to the general public or to a 776 designated group. 777 Section 7. Subsection (3) of section 537.012, Florida 778 Statutes, is amended to read: 779 537.012 Repossession, disposal of pledged property; excess 780 proceeds.— 781 (3) Upon taking possession of titled personal property, the 782 lender may dispose of the titled personal property by sale but 783 may do so only through a motor vehicle dealer or independent 784 motor vehicle sales agent licensed under s. 320.27. At least 10 785 days before prior tosale, the lender shall notify the borrower 786 of the date, time, and place of the sale and provide the 787 borrower with a written accounting of the principal amount due 788 on the title loan, interest accrued through the date the lender 789 takes possession of the titled personal property, and any 790 reasonable expenses incurred to date by the lender in taking 791 possession of, preparing for sale, and selling the titled 792 personal property. At any time before prior tosuch sale, the 793 lender shall permit the borrower to redeem the titled personal 794 property by tendering a money order or certified check for the 795 principal amount of the title loan, interest accrued through the 796 date the lender takes possession, and any reasonable expenses 797 incurred to date by the lender in taking possession of, 798 preparing for sale, and selling the titled personal property. 799 Nothing in this act nor in any title loan agreement shall 800 preclude a borrower from purchasing the titled personal property 801 at any sale. 802 Section 8. This act shall take effect July 1, 2013.