Florida Senate - 2017 COMMITTEE AMENDMENT Bill No. SB 1678 Ì678360+Î678360 LEGISLATIVE ACTION Senate . House Comm: RCS . 04/04/2017 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Transportation (Garcia) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Section 320.64, Florida Statutes, is amended to 6 read: 7 320.64 Denial, suspension, or revocation of license; 8 grounds.—A license of a licensee under s. 320.61 may be denied, 9 suspended, or revoked within the entire state or at any specific 10 location or locations within the state at which the applicant or 11 licensee engages or proposes to engage in business, upon proof 12 that the section was violated with sufficient frequency to 13 establish a pattern of wrongdoing, and a licensee or applicant 14 shall be liable for claims and remedies provided in ss. 320.695 15 and 320.697 for any violation of any of the following 16 provisions. A licensee is prohibited from committing the 17 following acts: 18 (1) The applicant or licensee is determined to be unable to 19 carry out contractual obligations with its motor vehicle 20 dealers. 21 (2) The applicant or licensee has knowingly made a material 22 misstatement in its application for a license. 23 (3) The applicant or licensee willfully has failed to 24 comply with significant provisions of ss. 320.60-320.70 or with 25 any lawful rule or regulation adopted or promulgated by the 26 department. 27 (4) The applicant or licensee has indulged in any illegal 28 act relating to his or her business. 29 (5) The applicant or licensee has coerced or attempted to 30 coerce any motor vehicle dealer into accepting delivery of any 31 motor vehicle or vehicles or parts or accessories therefor or 32 any other commodities which have not been ordered by the dealer. 33 (6) The applicant or licensee has coerced or attempted to 34 coerce any motor vehicle dealer to enter into any agreement with 35 the licensee. 36 (7) The applicant or licensee has threatened to 37 discontinue, cancel, or not to renew a franchise agreement of a 38 licensed motor vehicle dealer, where the threatened 39 discontinuation, cancellation, or nonrenewal, if implemented, 40 would be in violation of any of the provisions of s. 320.641. 41 (8) The applicant or licensee discontinued, canceled, or 42 failed to renew, a franchise agreement of a licensed motor 43 vehicle dealer in violation of any of the provisions of s. 44 320.641. 45 (9) The applicant or licensee has threatened to modify or 46 replace, or has modified or replaced, a franchise agreement with 47 a succeeding franchise agreement which would adversely alter the 48 rights or obligations of a motor vehicle dealer under an 49 existing franchise agreement or which substantially impairs the 50 sales, service obligations, or investment of the motor vehicle 51 dealer. 52 (10)(a) The applicant or licensee has attempted to enter, 53 or has entered, into a franchise agreement with a motor vehicle 54 dealer who does not, at the time of the franchise agreement, 55 have proper facilities to provide the services to his or her 56 purchasers of new motor vehicles which are covered by the new 57 motor vehicle warranty issued by the applicant or licensee. 58 (b) Notwithstanding any provision of a franchise, a 59 licensee may not require a motor vehicle dealer, by agreement, 60 program, policy, standard, or otherwise, to make substantial 61 changes, alterations, or remodeling to, or to replace a motor 62 vehicle dealer’s sales or service facilities unless the 63 licensee’s requirements are reasonable and justifiable in light 64 of the current and reasonably foreseeable projections of 65 economic conditions, financial expectations, and the motor 66 vehicle dealer’s market for the licensee’s motor vehicles. 67 (c) A licensee may, however, consistent with the licensee’s 68 allocation obligations at law and to its other same line-make 69 motor vehicle dealers, provide to a motor vehicle dealer a 70 commitment to supply additional vehicles or provide a loan or 71 grant of money as an inducement for the motor vehicle dealer to 72 expand, improve, remodel, alter, or renovate its facilities if 73 the provisions of the commitment are contained in a writing 74 voluntarily agreed to by the dealer and are made available, on 75 substantially similar terms, to any of the licensee’s other same 76 line-make dealers in this state who voluntarily agree to make a 77 substantially similar facility expansion, improvement, 78 remodeling, alteration, or renovation. 79 (d) Except as provided in paragraph (c), subsection (36), 80 or as otherwise provided by law, this subsection does not 81 require a licensee to provide financial support for, or 82 contribution to, the purchase or sale of the assets of or equity 83 in a motor vehicle dealer or a relocation of a motor vehicle 84 dealer because such support has been provided to other 85 purchases, sales, or relocations. 86 (e) A licensee or its common entity may not take or 87 threaten to take any action that is unfair or adverse to a 88 dealer who does not enter into an agreement with the licensee 89 pursuant to paragraph (c). 90 (f) This subsection does not affect any contract between a 91 licensee and any of its dealers regarding relocation, expansion, 92 improvement, remodeling, renovation, or alteration which exists 93 on the effective date of this act. 94 (g) A licensee may set and uniformly apply reasonable 95 standards for a motor vehicle dealer’s sales and service 96 facilities which are related to upkeep, repair, and cleanliness. 97 (h) A violation of paragraphs (b) through (g) is not a 98 violation of s. 320.70 and does not subject any licensee to any 99 criminal penalty under s. 320.70. 100 (i)1. If an applicant or licensee establishes a program, 101 standard, or policy or in any manner offers a bonus, incentive, 102 rebate, or other benefit to a motor vehicle dealer which is 103 based, in whole or in part, on the construction of new sales or 104 service facilities or the remodeling, improvement, renovation, 105 expansion, replacement, or other alteration of the motor vehicle 106 dealer’s existing sales or service facilities, including 107 installation of signs or other image elements, a motor vehicle 108 dealer who completes such construction, alteration, or 109 installation in reliance upon such program, standard, policy, 110 bonus, incentive, rebate, or other benefit is deemed to be in 111 full compliance with the applicant’s or licensee’s requirements 112 related to the new, remodeled, improved, renovated, expanded, 113 replaced, or altered facilities, signs, and image elements for 114 10 years after such completion. 115 2. If, during such 10-year period, the applicant or 116 licensee revises an existing, or establishes a new, program, 117 standard, policy, bonus, incentive, rebate, or other benefit 118 described in subparagraph 1., a motor vehicle dealer who 119 completed a facility in reliance upon a prior program, standard, 120 policy, bonus, incentive, rebate, or other benefit and elects 121 not to comply with the applicant’s or licensee’s requirements 122 for facilities, signs, or image elements under the revised or 123 new program, standard, policy, bonus, incentive, rebate, or 124 other benefit will not be eligible for any benefit under the 125 revised or new program but shall remain entitled to all benefits 126 under the prior program, plus any increase in benefits between 127 the prior and revised or new programs, during the remainder of 128 the 10-year period. 129 130 This paragraph does not obviate, affect, alter, or diminish the 131 provisions of subsection (38). 132 (11) The applicant or licensee has coerced a motor vehicle 133 dealer to provide installment financing for the motor vehicle 134 dealer’s purchasers with a specified financial institution. 135 (12) The applicant or licensee has advertised, printed, 136 displayed, published, distributed, broadcast, or televised, or 137 caused or permitted to be advertised, printed, displayed, 138 published, distributed, broadcast, or televised, in any manner 139 whatsoever, any statement or representation with regard to the 140 sale or financing of motor vehicles which is false, deceptive, 141 or misleading. 142 (13) The applicant or licensee has sold, exchanged, or 143 rented a motorcycle which produces in excess of 5 brake 144 horsepower, knowing the use thereof to be by, or intended for, 145 the holder of a restricted Florida driver license. 146 (14) The applicant or licensee has engaged in previous 147 conduct which would have been a ground for revocation or 148 suspension of a license if the applicant or licensee had been 149 licensed. 150 (15) The applicant or licensee, directly or indirectly, 151 through the actions of any parent of the licensee, subsidiary of 152 the licensee, or common entity causes a termination, 153 cancellation, or nonrenewal of a franchise agreement by a 154 present or previous distributor or importer unless, by the 155 effective date of such action, the applicant or licensee offers 156 the motor vehicle dealer whose franchise agreement is 157 terminated, canceled, or not renewed a franchise agreement 158 containing substantially the same provisions contained in the 159 previous franchise agreement or files an affidavit with the 160 department acknowledging its undertaking to assume and fulfill 161 the rights, duties, and obligations of its predecessor 162 distributor or importer under the terminated, canceled, or 163 nonrenewed franchise agreement and the same is reinstated. 164 (16) Notwithstanding the terms of any franchise agreement, 165 the applicant or licensee prevents or refuses to accept the 166 succession to any interest in a franchise agreement by any legal 167 heir or devisee under the will of a motor vehicle dealer or 168 under the laws of descent and distribution of this state; 169 provided, the applicant or licensee is not required to accept a 170 succession where such heir or devisee does not meet licensee’s 171 written, reasonable, and uniformly applied minimal standard 172 qualifications for dealer applicants or which, after notice and 173 administrative hearing pursuant to chapter 120, is demonstrated 174 to be detrimental to the public interest or to the 175 representation of the applicant or licensee. Nothing contained 176 herein, however, shall prevent a motor vehicle dealer, during 177 his or her lifetime, from designating any person as his or her 178 successor in interest by written instrument filed with and 179 accepted by the applicant or licensee. A licensee who rejects 180 the successor transferee under this subsection shall have the 181 burden of establishing in any proceeding where such rejection is 182 in issue that the rejection of the successor transferee complies 183 with this subsection. 184 (17) The applicant or licensee has included in any 185 franchise agreement with a motor vehicle dealer terms or 186 provisions that are contrary to, prohibited by, or otherwise 187 inconsistent with the provisions contained in ss. 320.60-320.70, 188 or has failed to include in such franchise agreement a provision 189 conforming to the requirements of s. 320.63(3). 190 (18) The applicant or licensee has established a system of 191 motor vehicle allocation or distribution or has implemented a 192 system of allocation or distribution of motor vehicles to one or 193 more of its franchised motor vehicle dealers which reduces or 194 alters allocations or supplies of new motor vehicles to the 195 dealer to achieve, directly or indirectly, a purpose that is 196 prohibited by ss. 320.60-320.70, or which otherwise is unfair, 197 inequitable, unreasonably discriminatory, or not supportable by 198 reason and good cause after considering the equities of the 199 affected motor vehicles dealer or dealers. An applicant or 200 licensee shall maintain for 3 years records that describe its 201 methods or formula of allocation and distribution of its motor 202 vehicles and records of its actual allocation and distribution 203 of motor vehicles to its motor vehicle dealers in this state. As 204 used in this subsection, “unfair” includes, without limitation, 205 the refusal or failure to offer to any dealer an equitable 206 supply of new vehicles under its franchise, by model, mix, or 207 colors as the licensee offers or allocates to its other same 208 line-make dealers in the state. 209 (19) The applicant or licensee, without good and fair 210 cause, has delayed, refused, or failed to provide a supply of 211 motor vehicles by series in reasonable quantities, including the 212 models publicly advertised by the applicant or licensee as being 213 available, or has delayed, refused, or failed to deliver motor 214 vehicle parts and accessories within a reasonable time after 215 receipt of an order by a franchised dealer. However, this 216 subsection is not violated if such failure is caused by acts or 217 causes beyond the control of the applicant or licensee. 218 (20) The applicant or licensee has required, or threatened 219 to require, a motor vehicle dealer to prospectively assent to a 220 release, assignment, novation, waiver, or estoppel, which 221 instrument or document operates, or is intended by the applicant 222 or licensee to operate, to relieve any person from any liability 223 or obligation under the provisions of ss. 320.60-320.70. 224 (21) The applicant or licensee has threatened or coerced a 225 motor vehicle dealer toward conduct or action whereby the dealer 226 would waive or forego its right to protest the establishment or 227 relocation of a motor vehicle dealer in the community or 228 territory serviced by the threatened or coerced dealer. 229 (22) The applicant or licensee has refused to deliver, in 230 reasonable quantities and within a reasonable time, to any duly 231 licensed motor vehicle dealer who has an agreement with such 232 applicant or licensee for the retail sale of new motor vehicles 233 and parts for motor vehicles sold or distributed by the 234 applicant or licensee, any such motor vehicles or parts as are 235 covered by such agreement. Such refusal includes the failure to 236 offer to its same line-make franchised motor vehicle dealers all 237 models manufactured for that line-make, or requiring a dealer to 238 pay any extra fee, require a dealer to execute a separate 239 franchise agreement, purchase unreasonable advertising displays 240 or other materials, or relocate, expand, improve, remodel, 241 renovate, recondition, or alter the dealer’s existing 242 facilities, or provide exclusive facilities as a prerequisite to 243 receiving a model or series of vehicles. However, the failure to 244 deliver any motor vehicle or part will not be considered a 245 violation of this section if the failure is due to an act of 246 God, work stoppage, or delay due to a strike or labor 247 difficulty, a freight embargo, product shortage, or other cause 248 over which the applicant or licensee has no control. An 249 applicant or licensee may impose reasonable requirements on the 250 motor vehicle dealer, other than the items listed above, 251 including, but not limited to, the purchase of special tools 252 required to properly service a motor vehicle and the undertaking 253 of sales person or service person training related to the motor 254 vehicle. 255 (23) The applicant or licensee has competed or is competing 256 with respect to any activity covered by the franchise agreement 257 with a motor vehicle dealer of the same line-make located in 258 this state with whom the applicant or licensee has entered into 259 a franchise agreement, except as permitted in s. 320.645. 260 (24) The applicant or licensee has sold a motor vehicle to 261 any retail consumer in the state except through a motor vehicle 262 dealer holding a franchise agreement for the line-make that 263 includes the motor vehicle. This section does not apply to sales 264 by the applicant or licensee of motor vehicles to its current 265 employees, employees of companies affiliated by common 266 ownership, charitable not-for-profit-organizations, and the 267 federal government. 268 (25) The applicant or licensee has undertaken or engaged in 269 an audit of warranty, maintenance, and other service-related 270 payments or incentive payments, including payments to a motor 271 vehicle dealer under any licensee-issued program, policy, or 272 other benefit, which were previously paid to a motor vehicle 273 dealer in violation of this section or has failed to comply with 274 any of its obligations under s. 320.696. An applicant or 275 licensee may reasonably and periodically audit a motor vehicle 276 dealer to determine the validity of paid claims as provided in 277 s. 320.696. Audits of warranty, maintenance, and other service 278 related payments shall be performed by an applicant or licensee 279 only during the 12-month period immediately following the date 280 the claim was paid. Audits of incentive payments shall be 281 performed only during the 12-month period immediately following 282 the date the incentive was paid. As used in this section, the 283 term “incentive” includes any bonus, incentive, or other 284 monetary or nonmonetary consideration. After such time periods 285 have elapsed, all warranty, maintenance, and other service 286 related payments and incentive payments shall be deemed final 287 and incontrovertible for any reason notwithstanding any 288 otherwise applicable law, and the motor vehicle dealer shall not 289 be subject to any chargeback or repayment. An applicant or 290 licensee may deny a claim or, as a result of a timely conducted 291 audit, impose a chargeback against a motor vehicle dealer for 292 warranty, maintenance, or other service-related payments or 293 incentive payments only if the applicant or licensee can show 294 that the warranty, maintenance, or other service-related claim 295 or incentive claim was false or fraudulent or that the motor 296 vehicle dealer failed to substantially comply with the 297 reasonable written and uniformly applied procedures of the 298 applicant or licensee for such repairs or incentives, but only 299 for that portion of the claim so shown. Notwithstanding the 300 terms of any franchise agreement, guideline, program, policy, or 301 procedure, an applicant or licensee may deny or charge back only 302 that portion of a warranty, maintenance, or other service 303 related claim or incentive claim which the applicant or licensee 304 has proven to be false or fraudulent or for which the dealer 305 failed to substantially comply with the reasonable written and 306 uniformly applied procedures of the applicant or licensee for 307 such repairs or incentives, as set forth in this subsection. An 308 applicant or licensee may not charge back a motor vehicle dealer 309 subsequent to the payment of a warranty, maintenance, or 310 service-related claim or incentive claim unless, within 30 days 311 after a timely conducted audit, a representative of the 312 applicant or licensee first meets in person, by telephone, or by 313 video teleconference with an officer or employee of the dealer 314 designated by the motor vehicle dealer. At such meeting the 315 applicant or licensee must provide a detailed explanation, with 316 supporting documentation, as to the basis for each of the claims 317 for which the applicant or licensee proposed a chargeback to the 318 dealer and a written statement containing the basis upon which 319 the motor vehicle dealer was selected for audit or review. 320 Thereafter, the applicant or licensee must provide the motor 321 vehicle dealer’s representative a reasonable period after the 322 meeting within which to respond to the proposed chargebacks, 323 with such period to be commensurate with the volume of claims 324 under consideration, but in no case less than 45 days after the 325 meeting. The applicant or licensee is prohibited from changing 326 or altering the basis for each of the proposed chargebacks as 327 presented to the motor vehicle dealer’s representative following 328 the conclusion of the audit unless the applicant or licensee 329 receives new information affecting the basis for one or more 330 chargebacks and that new information is received within 30 days 331 after the conclusion of the timely conducted audit. If the 332 applicant or licensee claims the existence of new information, 333 the dealer must be given the same right to a meeting and right 334 to respond as when the chargeback was originally presented. 335 After all internal dispute resolution processes provided through 336 the applicant or licensee have been completed, the applicant or 337 licensee shall give written notice to the motor vehicle dealer 338 of the final amount of its proposed chargeback. If the dealer 339 disputes that amount, the dealer may file a protest with the 340 department within 30 days after receipt of the notice. If a 341 protest is timely filed, the department shall notify the 342 applicant or licensee of the filing of the protest, and the 343 applicant or licensee may not take any action to recover the 344 amount of the proposed chargeback until the department renders a 345 final determination, which is not subject to further appeal, 346 that the chargeback is in compliance with the provisions of this 347 section. In any hearing pursuant to this subsection, the 348 applicant or licensee has the burden of proof that its audit and 349 resulting chargeback are in compliance with this subsection. 350 (26) Notwithstanding the terms of any franchise agreement, 351 including any licensee’s program, policy, or procedure, the 352 applicant or licensee has refused to allocate, sell, or deliver 353 motor vehicles; charged back or withheld payments or other 354 things of value for which the dealer is otherwise eligible under 355 a sales promotion, program, or contest; prevented a motor 356 vehicle dealer from participating in any promotion, program, or 357 contest; or has taken or threatened to take any adverse action 358 against a dealer, including chargebacks, reducing vehicle 359 allocations, or terminating or threatening to terminate a 360 franchise because the dealer sold or leased a motor vehicle to a 361 customer who exported the vehicle to a foreign country or who 362 resold the vehicle, unless the licensee proves that the dealer 363 knew or reasonably should have known that the customer intended 364 to export or resell the motor vehicle. There is a rebuttable 365 presumption that the dealer neither knew nor reasonably should 366 have known of its customer’s intent to export or resell the 367 vehicle if the vehicle is titled or registered in any state in 368 this country. A licensee may not take any action against a motor 369 vehicle dealer, including reducing its allocations or supply of 370 motor vehicles to the dealer or charging back to a dealer any 371 incentive payment previously paid, unless the licensee first 372 meets in person, by telephone, or video conference with an 373 officer or other designated employee of the dealer. At such 374 meeting, the licensee must provide a detailed explanation, with 375 supporting documentation, as to the basis for its claim that the 376 dealer knew or reasonably should have known of the customer’s 377 intent to export or resell the motor vehicle. Thereafter, the 378 motor vehicle dealer shall have a reasonable period, 379 commensurate with the number of motor vehicles at issue, but not 380 less than 15 days, to respond to the licensee’s claims. If, 381 following the dealer’s response and completion of all internal 382 dispute resolution processes provided through the applicant or 383 licensee, the dispute remains unresolved, the dealer may file a 384 protest with the department within 30 days after receipt of a 385 written notice from the licensee that it still intends to take 386 adverse action against the dealer with respect to the motor 387 vehicles still at issue. If a protest is timely filed, the 388 department shall notify the applicant or licensee of the filing 389 of the protest, and the applicant or licensee may not take any 390 action adverse to the dealer until the department renders a 391 final determination, which is not subject to further appeal, 392 that the licensee’s proposed action is in compliance with the 393 provisions of this subsection. In any hearing pursuant to this 394 subsection, the applicant or licensee has the burden of proof on 395 all issues raised by this subsection. An applicant or licensee 396 may not take any adverse action against a motor vehicle dealer 397 because the dealer sold or leased a motor vehicle to a customer 398 who exported the vehicle to a foreign country or who resold the 399 vehicle unless the applicant or licensee provides written 400 notification to the motor vehicle dealer of such resale or 401 export within 12 months after the date the dealer sold or leased 402 the vehicle to the customer. 403 (27) Notwithstanding the terms of any franchise agreement, 404 the applicant or licensee has failed or refused to indemnify and 405 hold harmless any motor vehicle dealer against any judgment for 406 damages, or settlements agreed to by the applicant or licensee, 407 including, without limitation, court costs and reasonable 408 attorney
attorneysfees, arising out of complaints, claims, or 409 lawsuits, including, without limitation, strict liability, 410 negligence, misrepresentation, express or implied warranty, or 411 revocation or rescission of acceptance of the sale of a motor 412 vehicle, to the extent the judgment or settlement relates to the 413 alleged negligent manufacture, design, or assembly of motor 414 vehicles, parts, or accessories. Nothing herein shall obviate 415 the licensee’s obligations pursuant to chapter 681. 416 (28) The applicant or licensee has published, disclosed, or 417 otherwise made available in any form information provided by a 418 motor vehicle dealer with respect to sales prices of motor 419 vehicles or profit per motor vehicle sold. Other confidential 420 financial information provided by motor vehicle dealers shall 421 not be published, disclosed, or otherwise made publicly 422 available except in composite form. However, this information 423 may be disclosed with the written consent of the dealer or in 424 response to a subpoena or order of the department, a court or a 425 lawful tribunal, or introduced into evidence in such a 426 proceeding, after timely notice to an affected dealer. 427 (29) The applicant or licensee has failed to reimburse a 428 motor vehicle dealer in full for the reasonable cost of 429 providing a loaner vehicle to any customer who is having a 430 vehicle serviced at the motor vehicle dealer, if a loaner is 431 required by the applicant or licensee, or a loaner is expressly 432 part of an applicant or licensee’s customer satisfaction index 433 or computation. 434 (30) The applicant or licensee has conducted or threatened 435 to conduct any audit of a motor vehicle dealer in order to 436 coerce or attempt to coerce the dealer to forego any rights 437 granted to the dealer under ss. 320.60-320.70 or under the 438 agreement between the licensee and the motor vehicle dealer. 439 Nothing in this section shall prohibit an applicant or licensee 440 from reasonably and periodically auditing a dealer to determine 441 the validity of paid claims, as permitted under this chapter, if 442 the licensee complies with the provisions of ss. 320.60-320.70 443 applicable to such audits. 444 (31) From and after the effective date of enactment of this 445 provision, the applicant or licensee has offered to any motor 446 vehicle dealer a franchise agreement that: 447 (a) Requires that a motor vehicle dealer bring an 448 administrative or legal action in a venue outside of this state; 449 (b) Requires that any arbitration, mediation, or other 450 legal proceeding be conducted outside of this state; or 451 (c) Requires that a law of a state other than Florida be 452 applied to any legal proceeding between a motor vehicle dealer 453 and a licensee. 454 (32) Notwithstanding the terms of any franchise agreement, 455 the applicant or licensee has rejected or withheld approval of 456 any proposed transfer in violation of s. 320.643 or a proposed 457 change of executive management in violation of s. 320.644. 458 (33) The applicant or licensee has attempted to sell or 459 lease, or has sold or leased, used motor vehicles at retail of a 460 line-make that is the subject of any franchise agreement with a 461 motor vehicle dealer in this state, other than trucks with a net 462 weight of more than 8,000 pounds. 463 (34) The applicant or licensee, after the effective date of 464 this subsection, has included in any franchise agreement with a 465 motor vehicle dealer a mandatory obligation or requirement of 466 the motor vehicle dealer to purchase, sell, or lease, or offer 467 for purchase, sale, or lease, any quantity of used motor 468 vehicles. 469 (35) The applicant or licensee has refused to assign 470 allocation earned by a motor vehicle dealer, or has refused to 471 sell motor vehicles to a motor vehicle dealer, because the motor 472 vehicle dealer has failed or refused to purchase, sell, lease, 473 or certify a certain quantity of used motor vehicles prescribed 474 by the licensee. 475 (36)(a) Notwithstanding the terms of any franchise 476 agreement, in addition to any other statutory or contractual 477 rights of recovery after the voluntary or involuntary 478 termination, cancellation, or nonrenewal of a franchise, failing 479 to pay the motor vehicle dealer, as provided in paragraph (d), 480 the following amounts: 481 1. The net cost paid by the dealer for each new car or 482 truck in the dealer’s inventory with mileage of 2,000 miles or 483 less, or a motorcycle with mileage of 100 miles or less, 484 exclusive of mileage placed on the vehicle before it was 485 delivered to the dealer. 486 2. The current price charged for each new, unused, 487 undamaged, or unsold part or accessory that: 488 a. Is in the current parts catalogue and is still in the 489 original, resalable merchandising package and in an unbroken 490 lot, except that sheet metal may be in a comparable substitute 491 for the original package; and 492 b. Was purchased by the dealer directly from the 493 manufacturer or distributor or from an outgoing authorized 494 dealer as a part of the dealer’s initial inventory. 495 3. The fair market value of each undamaged sign owned by 496 the dealer which bears a trademark or trade name used or claimed 497 by the applicant or licensee or its representative which was 498 purchased from or at the request of the applicant or licensee or 499 its representative. 500 4. The fair market value of all special tools, data 501 processing equipment, and automotive service equipment owned by 502 the dealer which: 503 a. Were recommended in writing by the applicant or licensee 504 or its representative and designated as special tools and 505 equipment; 506 b. Were purchased from or at the request of the applicant 507 or licensee or its representative; and 508 c. Are in usable and good condition except for reasonable 509 wear and tear. 510 5. The cost of transporting, handling, packing, storing, 511 and loading any property subject to repurchase under this 512 section. 513 (b) If the termination, cancellation, or nonrenewal of the 514 dealer’s franchise is the result of the bankruptcy or 515 reorganization of a licensee or its common entity, or the result 516 of a licensee’s plan, scheme, or policy, whether or not publicly 517 declared, which is intended to or has the effect of decreasing 518 the number of, or eliminating, the licensee’s franchised motor 519 vehicle dealers of a line-make in this state, or the result of a 520 termination, elimination, or cessation of manufacture or 521 reorganization of a licensee or its common entity, or the result 522 of a termination, elimination, or cessation of manufacture or 523 distribution of a line-make, in addition to the above payments 524 to the dealer, the licensee or its common entity, shall be 525 liable to and shall pay the motor vehicle dealer for an amount 526 at least equal to the fair market value of the franchise for the 527 line-make, which shall be the greater of the value determined as 528 of the day the licensee announces the action that results in the 529 termination, cancellation, or nonrenewal, or the value 530 determined on the day that is 12 months before that date. Fair 531 market value of the franchise for the line-make includes only 532 the goodwill value of the dealer’s franchise for that line-make 533 in the dealer’s community or territory. 534 (c) This subsection does not apply to a termination, 535 cancellation, or nonrenewal that is implemented as a result of 536 the sale of the assets or corporate stock or other ownership 537 interests of the dealer. 538 (d) The dealer shall return the property listed in this 539 subsection to the licensee within 90 days after the effective 540 date of the termination, cancellation, or nonrenewal. The 541 licensee shall supply the dealer with reasonable instructions 542 regarding the method by which the dealer must return the 543 property. Absent shipping instructions and prepayment of 544 shipping costs from the licensee or its common entity, the 545 dealer shall tender the inventory and other items to be returned 546 at the dealer’s facility. The compensation for the property 547 shall be paid by the licensee or its common entity 548 simultaneously with the tender of inventory and other items, 549 provided that, if the dealer does not have clear title to the 550 inventory and other items and is not in a position to convey 551 that title to the licensee, payment for the property being 552 returned may be made jointly to the dealer and the holder of any 553 security interest. 554 (37) Notwithstanding the terms of any franchise agreement, 555 the applicant or licensee has refused to allow or has limited or 556 restricted a motor vehicle dealer from acquiring or adding a 557 sales or service operation for another line-make of motor 558 vehicles at the same or expanded facility at which the motor 559 vehicle dealer currently operates a dealership unless the 560 applicant or licensee can demonstrate that such refusal, 561 limitation, or restriction is justified by consideration of 562 reasonable facility and financial requirements and the dealer’s 563 performance for the existing line-make. 564 (38) The applicant or licensee has failed or refused to 565 offer a bonus, incentive, or other benefit program, in whole or 566 in part, to a dealer or dealers in this state which it offers to 567 all of its other same line-make dealers nationally or to all of 568 its other same line-make dealers in the licensee’s designated 569 zone, region, or other licensee-designated area of which this 570 state is a part, unless the failure or refusal to offer the 571 program in this state is reasonably supported by substantially 572 different economic or marketing considerations than are 573 applicable to the licensee’s same line-make dealers in this 574 state. For purposes of this chapter, a licensee may not 575 establish this state alone as a designated zone, region, or area 576 or any other designation for a specified territory. A licensee 577 may offer a bonus, rebate, incentive, or other benefit program 578 to its dealers in this state which is calculated or paid on a 579 per vehicle basis and is related in part to a dealer’s facility 580 or the expansion, improvement, remodeling, alteration, or 581 renovation of a dealer’s facility. Any dealer who does not 582 comply with the facility criteria or eligibility requirements of 583 such program is entitled to receive a reasonable percentage of 584 the bonus, incentive, rebate, or other benefit offered by the 585 licensee under that program by complying with the criteria or 586 eligibility requirements unrelated to the dealer’s facility 587 under that program. For purposes of the previous sentence, the 588 percentage unrelated to the facility criteria or requirements is 589 presumed to be “reasonable” if it is not less than 80 percent of 590 the total of the per vehicle bonus, incentive, rebate, or other 591 benefits offered under the program. 592 (39) Notwithstanding any agreement, program, incentive, 593 bonus, policy, or rule, an applicant or licensee may not fail to 594 make any payment pursuant to any agreement, program, incentive, 595 bonus, policy, or rule for any temporary replacement motor 596 vehicle loaned, rented, or provided by a motor vehicle dealer to 597 or for its service or repair customers, even if the temporary 598 replacement motor vehicle has been leased, rented, titled, or 599 registered to the motor vehicle dealer’s rental or leasing 600 division or an entity that is owned or controlled by the motor 601 vehicle dealer, provided that the motor vehicle dealer or its 602 rental or leasing division or entity complies with the written 603 and uniformly enforced vehicle eligibility, use, and reporting 604 requirements specified by the applicant or licensee in its 605 agreement, program, policy, bonus, incentive, or rule relating 606 to loaner vehicles. 607 (40) Notwithstanding the terms of any franchise agreement, 608 the applicant or licensee may not require or coerce, or attempt 609 to require or coerce, a motor vehicle dealer to purchase goods 610 or services from a vendor selected, identified, or designated by 611 the applicant or licensee, or one of its parents, subsidiaries, 612 divisions, or affiliates, by agreement, standard, policy, 613 program, incentive provision, or otherwise, without making 614 available to the motor vehicle dealer the option to obtain the 615 goods or services of substantially similar design and quality 616 from a vendor chosen by the motor vehicle dealer. If the motor 617 vehicle dealer exercises such option, the dealer must provide 618 written notice of its desire to use the alternative goods or 619 services to the applicant or licensee, along with samples or 620 clear descriptions of the alternative goods or services that the 621 dealer desires to use. The licensee or applicant shall have the 622 opportunity to evaluate the alternative goods or services for up 623 to 30 days to determine whether it will provide a written 624 approval to the motor vehicle dealer to use said alternative 625 goods or services. Approval may not be unreasonably withheld by 626 the applicant or licensee. If the motor vehicle dealer does not 627 receive a response from the applicant or licensee within 30 628 days, approval to use the alternative goods or services is 629 deemed granted. If a dealer using alternative goods or services 630 complies with this subsection and has received approval from the 631 licensee or applicant, the dealer is not ineligible for all 632 benefits described in the agreement, standard, policy, program, 633 incentive provision, or otherwise solely for having used such 634 alternative goods or services. As used in this subsection, the 635 term “goods or services” is limited to such goods and services 636 used to construct or renovate dealership facilities or furniture 637 and fixtures at the dealership facilities. The term does not 638 include: 639 (a) Any materials subject to the applicant’s or licensee’s 640 intellectual property rights, including copyright, trademark, or 641 trade dress rights; 642 (b) Any special tool and training as required by the 643 applicant or licensee; 644 (c) Any part to be used in repairs under warranty 645 obligations of an applicant or licensee; 646 (d) Any good or service paid for entirely by the applicant 647 or licensee; or 648 (e) Any applicant’s or licensee’s design or architectural 649 review service. 650 (41)(a) The applicant or licensee has established, 651 implemented, or enforced criteria for measuring the sales or 652 service performance of any of its franchised motor vehicle 653 dealers in this state which have a material or adverse effect on 654 any motor vehicle dealer and which: 655 1. Are unfair, unreasonable, arbitrary, or inequitable; or 656 2. Do not include all relevant and material local and 657 regional criteria, data, and facts. Relevant and material 658 criteria, data, or facts include, but are not limited to, those 659 of motor vehicle dealerships of comparable size in comparable 660 markets. If such performance measurement criteria are based, in 661 whole or in part, on a survey, such survey must be based on a 662 statistically significant and valid random sample. 663 (b) An applicant, licensee, or common entity, or an 664 affiliate thereof, which enforces against any motor vehicle 665 dealer any such performance measurement criteria shall, upon the 666 request of the motor vehicle dealer, describe in writing to the 667 motor vehicle dealer, in detail, how the performance measurement 668 criteria were designed, calculated, established, and uniformly 669 applied. 670 671 A motor vehicle dealer who can demonstrate that a violation of, 672 or failure to comply with, any of the preceding provisions by an 673 applicant or licensee will or may canadversely and pecuniarily 674 affect the complaining dealer, shall be entitled to pursue all 675 of the remedies, procedures, and rights of recovery available 676 under ss. 320.695 and 320.697. 677 Section 2. For the purpose of incorporating the amendment 678 made by this act to section 320.64, Florida Statutes, in 679 references thereto, section 320.6992, Florida Statutes, is 680 reenacted to read: 681 320.6992 Application.—Sections 320.60-320.70, including 682 amendments to ss. 320.60-320.70, apply to all presently existing 683 or hereafter established systems of distribution of motor 684 vehicles in this state, except to the extent that such 685 application would impair valid contractual agreements in 686 violation of the State Constitution or Federal Constitution. 687 Sections 320.60-320.70 do not apply to any judicial or 688 administrative proceeding pending as of October 1, 1988. All 689 agreements renewed, amended, or entered into subsequent to 690 October 1, 1988, shall be governed by ss. 320.60-320.70, 691 including any amendments to ss. 320.60-320.70 which have been or 692 may be from time to time adopted, unless the amendment 693 specifically provides otherwise, and except to the extent that 694 such application would impair valid contractual agreements in 695 violation of the State Constitution or Federal Constitution. 696 Section 3. Sections 320.60, 320.605, 320.61, 320.615, 697 320.62, 320.63, 320.6403, 320.6405, 320.641, 320.6412, 320.6415, 698 320.642, 320.643, 320.644, 320.645, 320.646, 320.664, 320.67, 699 320.68, 320.69, 320.695, 320.696, 320.697, 320.6975, 320.698, 700 320.699, 320.69915, and 320.70, Florida Statutes, are reenacted 701 for the purpose of incorporating the amendment made by this act 702 to s. 320.64, Florida Statutes. 703 Section 4. This act shall take effect upon becoming a law. 704 705 ================= T I T L E A M E N D M E N T ================ 706 And the title is amended as follows: 707 Delete everything before the enacting clause 708 and insert: 709 A bill to be entitled 710 An act relating to motor vehicle applicants, 711 licensees, and dealers; amending s. 320.64, F.S.; 712 providing that a motor vehicle dealer who constructs 713 or alters sales or service facilities in reliance upon 714 a program or incentive offered by an applicant or 715 licensee is deemed to be in compliance with certain 716 requirements for a specified period; specifying 717 eligibility for benefits under a revised or new 718 program, standard, policy, bonus, incentive, rebate, 719 or other benefit; providing construction; authorizing 720 denial, suspension, or revocation of the license of an 721 applicant or licensee who establishes certain 722 performance measurement criteria that have a material 723 or adverse effect on motor vehicle dealers; requiring 724 an applicant, licensee, or common entity, or an 725 affiliate thereof, under certain circumstances and 726 upon the request of the motor vehicle dealer, to 727 describe in writing to the motor vehicle dealer how 728 certain performance measurement criteria were 729 designed, calculated, established, and uniformly 730 applied; reenacting s. 320.6992, F.S., relating to 731 provisions that apply to all systems of distribution 732 of motor vehicles in this state, to incorporate the 733 amendment made to s. 320.64, F.S., in references 734 thereto; reenacting ss. 320.60, 320.605, 320.61, 735 320.615, 320.62, 320.63, 320.6403, 320.6405, 320.641, 736 320.6412, 320.6415, 320.642, 320.643, 320.644, 737 320.645, 320.646, 320.664, 320.67, 320.68, 320.69, 738 320.695, 320.696, 320.697, 320.6975, 320.698, 320.699, 739 320.69915, and 320.70, F.S., to incorporate the 740 amendment made to s. 320.64, F.S.; providing an 741 effective date.