Florida Senate - 2017 CS for SB 1678
By the Committee on Transportation; and Senator Garcia
596-03406-17 20171678c1
1 A bill to be entitled
2 An act relating to motor vehicle applicants,
3 licensees, and dealers; amending s. 320.64, F.S.;
4 providing that a motor vehicle dealer who constructs
5 or alters sales or service facilities in reliance upon
6 a program or incentive offered by an applicant or
7 licensee is deemed to be in compliance with certain
8 requirements for a specified period; specifying
9 eligibility for benefits under a revised or new
10 program, standard, policy, bonus, incentive, rebate,
11 or other benefit; providing construction; authorizing
12 denial, suspension, or revocation of the license of an
13 applicant or licensee who establishes certain
14 performance measurement criteria that have a material
15 or adverse effect on motor vehicle dealers; requiring
16 an applicant, licensee, or common entity, or an
17 affiliate thereof, under certain circumstances and
18 upon the request of the motor vehicle dealer, to
19 describe in writing to the motor vehicle dealer how
20 certain performance measurement criteria were
21 designed, calculated, established, and uniformly
22 applied; reenacting s. 320.6992, F.S., relating to
23 provisions that apply to all systems of distribution
24 of motor vehicles in this state, to incorporate the
25 amendment made to s. 320.64, F.S., in references
26 thereto; reenacting ss. 320.60, 320.605, 320.61,
27 320.615, 320.62, 320.63, 320.6403, 320.6405, 320.641,
28 320.6412, 320.6415, 320.642, 320.643, 320.644,
29 320.645, 320.646, 320.664, 320.67, 320.68, 320.69,
30 320.695, 320.696, 320.697, 320.6975, 320.698, 320.699,
31 320.69915, and 320.70, F.S., to incorporate the
32 amendment made to s. 320.64, F.S.; providing an
33 effective date.
34
35 Be It Enacted by the Legislature of the State of Florida:
36
37 Section 1. Section 320.64, Florida Statutes, is amended to
38 read:
39 320.64 Denial, suspension, or revocation of license;
40 grounds.—A license of a licensee under s. 320.61 may be denied,
41 suspended, or revoked within the entire state or at any specific
42 location or locations within the state at which the applicant or
43 licensee engages or proposes to engage in business, upon proof
44 that the section was violated with sufficient frequency to
45 establish a pattern of wrongdoing, and a licensee or applicant
46 shall be liable for claims and remedies provided in ss. 320.695
47 and 320.697 for any violation of any of the following
48 provisions. A licensee is prohibited from committing the
49 following acts:
50 (1) The applicant or licensee is determined to be unable to
51 carry out contractual obligations with its motor vehicle
52 dealers.
53 (2) The applicant or licensee has knowingly made a material
54 misstatement in its application for a license.
55 (3) The applicant or licensee willfully has failed to
56 comply with significant provisions of ss. 320.60-320.70 or with
57 any lawful rule or regulation adopted or promulgated by the
58 department.
59 (4) The applicant or licensee has indulged in any illegal
60 act relating to his or her business.
61 (5) The applicant or licensee has coerced or attempted to
62 coerce any motor vehicle dealer into accepting delivery of any
63 motor vehicle or vehicles or parts or accessories therefor or
64 any other commodities which have not been ordered by the dealer.
65 (6) The applicant or licensee has coerced or attempted to
66 coerce any motor vehicle dealer to enter into any agreement with
67 the licensee.
68 (7) The applicant or licensee has threatened to
69 discontinue, cancel, or not to renew a franchise agreement of a
70 licensed motor vehicle dealer, where the threatened
71 discontinuation, cancellation, or nonrenewal, if implemented,
72 would be in violation of any of the provisions of s. 320.641.
73 (8) The applicant or licensee discontinued, canceled, or
74 failed to renew, a franchise agreement of a licensed motor
75 vehicle dealer in violation of any of the provisions of s.
76 320.641.
77 (9) The applicant or licensee has threatened to modify or
78 replace, or has modified or replaced, a franchise agreement with
79 a succeeding franchise agreement which would adversely alter the
80 rights or obligations of a motor vehicle dealer under an
81 existing franchise agreement or which substantially impairs the
82 sales, service obligations, or investment of the motor vehicle
83 dealer.
84 (10)(a) The applicant or licensee has attempted to enter,
85 or has entered, into a franchise agreement with a motor vehicle
86 dealer who does not, at the time of the franchise agreement,
87 have proper facilities to provide the services to his or her
88 purchasers of new motor vehicles which are covered by the new
89 motor vehicle warranty issued by the applicant or licensee.
90 (b) Notwithstanding any provision of a franchise, a
91 licensee may not require a motor vehicle dealer, by agreement,
92 program, policy, standard, or otherwise, to make substantial
93 changes, alterations, or remodeling to, or to replace a motor
94 vehicle dealer’s sales or service facilities unless the
95 licensee’s requirements are reasonable and justifiable in light
96 of the current and reasonably foreseeable projections of
97 economic conditions, financial expectations, and the motor
98 vehicle dealer’s market for the licensee’s motor vehicles.
99 (c) A licensee may, however, consistent with the licensee’s
100 allocation obligations at law and to its other same line-make
101 motor vehicle dealers, provide to a motor vehicle dealer a
102 commitment to supply additional vehicles or provide a loan or
103 grant of money as an inducement for the motor vehicle dealer to
104 expand, improve, remodel, alter, or renovate its facilities if
105 the provisions of the commitment are contained in a writing
106 voluntarily agreed to by the dealer and are made available, on
107 substantially similar terms, to any of the licensee’s other same
108 line-make dealers in this state who voluntarily agree to make a
109 substantially similar facility expansion, improvement,
110 remodeling, alteration, or renovation.
111 (d) Except as provided in paragraph (c), subsection (36),
112 or as otherwise provided by law, this subsection does not
113 require a licensee to provide financial support for, or
114 contribution to, the purchase or sale of the assets of or equity
115 in a motor vehicle dealer or a relocation of a motor vehicle
116 dealer because such support has been provided to other
117 purchases, sales, or relocations.
118 (e) A licensee or its common entity may not take or
119 threaten to take any action that is unfair or adverse to a
120 dealer who does not enter into an agreement with the licensee
121 pursuant to paragraph (c).
122 (f) This subsection does not affect any contract between a
123 licensee and any of its dealers regarding relocation, expansion,
124 improvement, remodeling, renovation, or alteration which exists
125 on the effective date of this act.
126 (g) A licensee may set and uniformly apply reasonable
127 standards for a motor vehicle dealer’s sales and service
128 facilities which are related to upkeep, repair, and cleanliness.
129 (h) A violation of paragraphs (b) through (g) is not a
130 violation of s. 320.70 and does not subject any licensee to any
131 criminal penalty under s. 320.70.
132 (i)1. If an applicant or licensee establishes a program,
133 standard, or policy or in any manner offers a bonus, incentive,
134 rebate, or other benefit to a motor vehicle dealer which is
135 based, in whole or in part, on the construction of new sales or
136 service facilities or the remodeling, improvement, renovation,
137 expansion, replacement, or other alteration of the motor vehicle
138 dealer’s existing sales or service facilities, including
139 installation of signs or other image elements, a motor vehicle
140 dealer who completes such construction, alteration, or
141 installation in reliance upon such program, standard, policy,
142 bonus, incentive, rebate, or other benefit is deemed to be in
143 full compliance with the applicant’s or licensee’s requirements
144 related to the new, remodeled, improved, renovated, expanded,
145 replaced, or altered facilities, signs, and image elements for
146 10 years after such completion.
147 2. If, during such 10-year period, the applicant or
148 licensee revises an existing, or establishes a new, program,
149 standard, policy, bonus, incentive, rebate, or other benefit
150 described in subparagraph 1., a motor vehicle dealer who
151 completed a facility in reliance upon a prior program, standard,
152 policy, bonus, incentive, rebate, or other benefit and elects
153 not to comply with the applicant’s or licensee’s requirements
154 for facilities, signs, or image elements under the revised or
155 new program, standard, policy, bonus, incentive, rebate, or
156 other benefit will not be eligible for any benefit under the
157 revised or new program but shall remain entitled to all benefits
158 under the prior program, plus any increase in benefits between
159 the prior and revised or new programs, during the remainder of
160 the 10-year period.
161
162 This paragraph does not obviate, affect, alter, or diminish the
163 provisions of subsection (38).
164 (11) The applicant or licensee has coerced a motor vehicle
165 dealer to provide installment financing for the motor vehicle
166 dealer’s purchasers with a specified financial institution.
167 (12) The applicant or licensee has advertised, printed,
168 displayed, published, distributed, broadcast, or televised, or
169 caused or permitted to be advertised, printed, displayed,
170 published, distributed, broadcast, or televised, in any manner
171 whatsoever, any statement or representation with regard to the
172 sale or financing of motor vehicles which is false, deceptive,
173 or misleading.
174 (13) The applicant or licensee has sold, exchanged, or
175 rented a motorcycle which produces in excess of 5 brake
176 horsepower, knowing the use thereof to be by, or intended for,
177 the holder of a restricted Florida driver license.
178 (14) The applicant or licensee has engaged in previous
179 conduct which would have been a ground for revocation or
180 suspension of a license if the applicant or licensee had been
181 licensed.
182 (15) The applicant or licensee, directly or indirectly,
183 through the actions of any parent of the licensee, subsidiary of
184 the licensee, or common entity causes a termination,
185 cancellation, or nonrenewal of a franchise agreement by a
186 present or previous distributor or importer unless, by the
187 effective date of such action, the applicant or licensee offers
188 the motor vehicle dealer whose franchise agreement is
189 terminated, canceled, or not renewed a franchise agreement
190 containing substantially the same provisions contained in the
191 previous franchise agreement or files an affidavit with the
192 department acknowledging its undertaking to assume and fulfill
193 the rights, duties, and obligations of its predecessor
194 distributor or importer under the terminated, canceled, or
195 nonrenewed franchise agreement and the same is reinstated.
196 (16) Notwithstanding the terms of any franchise agreement,
197 the applicant or licensee prevents or refuses to accept the
198 succession to any interest in a franchise agreement by any legal
199 heir or devisee under the will of a motor vehicle dealer or
200 under the laws of descent and distribution of this state;
201 provided, the applicant or licensee is not required to accept a
202 succession where such heir or devisee does not meet licensee’s
203 written, reasonable, and uniformly applied minimal standard
204 qualifications for dealer applicants or which, after notice and
205 administrative hearing pursuant to chapter 120, is demonstrated
206 to be detrimental to the public interest or to the
207 representation of the applicant or licensee. Nothing contained
208 herein, however, shall prevent a motor vehicle dealer, during
209 his or her lifetime, from designating any person as his or her
210 successor in interest by written instrument filed with and
211 accepted by the applicant or licensee. A licensee who rejects
212 the successor transferee under this subsection shall have the
213 burden of establishing in any proceeding where such rejection is
214 in issue that the rejection of the successor transferee complies
215 with this subsection.
216 (17) The applicant or licensee has included in any
217 franchise agreement with a motor vehicle dealer terms or
218 provisions that are contrary to, prohibited by, or otherwise
219 inconsistent with the provisions contained in ss. 320.60-320.70,
220 or has failed to include in such franchise agreement a provision
221 conforming to the requirements of s. 320.63(3).
222 (18) The applicant or licensee has established a system of
223 motor vehicle allocation or distribution or has implemented a
224 system of allocation or distribution of motor vehicles to one or
225 more of its franchised motor vehicle dealers which reduces or
226 alters allocations or supplies of new motor vehicles to the
227 dealer to achieve, directly or indirectly, a purpose that is
228 prohibited by ss. 320.60-320.70, or which otherwise is unfair,
229 inequitable, unreasonably discriminatory, or not supportable by
230 reason and good cause after considering the equities of the
231 affected motor vehicles dealer or dealers. An applicant or
232 licensee shall maintain for 3 years records that describe its
233 methods or formula of allocation and distribution of its motor
234 vehicles and records of its actual allocation and distribution
235 of motor vehicles to its motor vehicle dealers in this state. As
236 used in this subsection, “unfair” includes, without limitation,
237 the refusal or failure to offer to any dealer an equitable
238 supply of new vehicles under its franchise, by model, mix, or
239 colors as the licensee offers or allocates to its other same
240 line-make dealers in the state.
241 (19) The applicant or licensee, without good and fair
242 cause, has delayed, refused, or failed to provide a supply of
243 motor vehicles by series in reasonable quantities, including the
244 models publicly advertised by the applicant or licensee as being
245 available, or has delayed, refused, or failed to deliver motor
246 vehicle parts and accessories within a reasonable time after
247 receipt of an order by a franchised dealer. However, this
248 subsection is not violated if such failure is caused by acts or
249 causes beyond the control of the applicant or licensee.
250 (20) The applicant or licensee has required, or threatened
251 to require, a motor vehicle dealer to prospectively assent to a
252 release, assignment, novation, waiver, or estoppel, which
253 instrument or document operates, or is intended by the applicant
254 or licensee to operate, to relieve any person from any liability
255 or obligation under the provisions of ss. 320.60-320.70.
256 (21) The applicant or licensee has threatened or coerced a
257 motor vehicle dealer toward conduct or action whereby the dealer
258 would waive or forego its right to protest the establishment or
259 relocation of a motor vehicle dealer in the community or
260 territory serviced by the threatened or coerced dealer.
261 (22) The applicant or licensee has refused to deliver, in
262 reasonable quantities and within a reasonable time, to any duly
263 licensed motor vehicle dealer who has an agreement with such
264 applicant or licensee for the retail sale of new motor vehicles
265 and parts for motor vehicles sold or distributed by the
266 applicant or licensee, any such motor vehicles or parts as are
267 covered by such agreement. Such refusal includes the failure to
268 offer to its same line-make franchised motor vehicle dealers all
269 models manufactured for that line-make, or requiring a dealer to
270 pay any extra fee, require a dealer to execute a separate
271 franchise agreement, purchase unreasonable advertising displays
272 or other materials, or relocate, expand, improve, remodel,
273 renovate, recondition, or alter the dealer’s existing
274 facilities, or provide exclusive facilities as a prerequisite to
275 receiving a model or series of vehicles. However, the failure to
276 deliver any motor vehicle or part will not be considered a
277 violation of this section if the failure is due to an act of
278 God, work stoppage, or delay due to a strike or labor
279 difficulty, a freight embargo, product shortage, or other cause
280 over which the applicant or licensee has no control. An
281 applicant or licensee may impose reasonable requirements on the
282 motor vehicle dealer, other than the items listed above,
283 including, but not limited to, the purchase of special tools
284 required to properly service a motor vehicle and the undertaking
285 of sales person or service person training related to the motor
286 vehicle.
287 (23) The applicant or licensee has competed or is competing
288 with respect to any activity covered by the franchise agreement
289 with a motor vehicle dealer of the same line-make located in
290 this state with whom the applicant or licensee has entered into
291 a franchise agreement, except as permitted in s. 320.645.
292 (24) The applicant or licensee has sold a motor vehicle to
293 any retail consumer in the state except through a motor vehicle
294 dealer holding a franchise agreement for the line-make that
295 includes the motor vehicle. This section does not apply to sales
296 by the applicant or licensee of motor vehicles to its current
297 employees, employees of companies affiliated by common
298 ownership, charitable not-for-profit-organizations, and the
299 federal government.
300 (25) The applicant or licensee has undertaken or engaged in
301 an audit of warranty, maintenance, and other service-related
302 payments or incentive payments, including payments to a motor
303 vehicle dealer under any licensee-issued program, policy, or
304 other benefit, which were previously paid to a motor vehicle
305 dealer in violation of this section or has failed to comply with
306 any of its obligations under s. 320.696. An applicant or
307 licensee may reasonably and periodically audit a motor vehicle
308 dealer to determine the validity of paid claims as provided in
309 s. 320.696. Audits of warranty, maintenance, and other service
310 related payments shall be performed by an applicant or licensee
311 only during the 12-month period immediately following the date
312 the claim was paid. Audits of incentive payments shall be
313 performed only during the 12-month period immediately following
314 the date the incentive was paid. As used in this section, the
315 term “incentive” includes any bonus, incentive, or other
316 monetary or nonmonetary consideration. After such time periods
317 have elapsed, all warranty, maintenance, and other service
318 related payments and incentive payments shall be deemed final
319 and incontrovertible for any reason notwithstanding any
320 otherwise applicable law, and the motor vehicle dealer shall not
321 be subject to any chargeback or repayment. An applicant or
322 licensee may deny a claim or, as a result of a timely conducted
323 audit, impose a chargeback against a motor vehicle dealer for
324 warranty, maintenance, or other service-related payments or
325 incentive payments only if the applicant or licensee can show
326 that the warranty, maintenance, or other service-related claim
327 or incentive claim was false or fraudulent or that the motor
328 vehicle dealer failed to substantially comply with the
329 reasonable written and uniformly applied procedures of the
330 applicant or licensee for such repairs or incentives, but only
331 for that portion of the claim so shown. Notwithstanding the
332 terms of any franchise agreement, guideline, program, policy, or
333 procedure, an applicant or licensee may deny or charge back only
334 that portion of a warranty, maintenance, or other service
335 related claim or incentive claim which the applicant or licensee
336 has proven to be false or fraudulent or for which the dealer
337 failed to substantially comply with the reasonable written and
338 uniformly applied procedures of the applicant or licensee for
339 such repairs or incentives, as set forth in this subsection. An
340 applicant or licensee may not charge back a motor vehicle dealer
341 subsequent to the payment of a warranty, maintenance, or
342 service-related claim or incentive claim unless, within 30 days
343 after a timely conducted audit, a representative of the
344 applicant or licensee first meets in person, by telephone, or by
345 video teleconference with an officer or employee of the dealer
346 designated by the motor vehicle dealer. At such meeting the
347 applicant or licensee must provide a detailed explanation, with
348 supporting documentation, as to the basis for each of the claims
349 for which the applicant or licensee proposed a chargeback to the
350 dealer and a written statement containing the basis upon which
351 the motor vehicle dealer was selected for audit or review.
352 Thereafter, the applicant or licensee must provide the motor
353 vehicle dealer’s representative a reasonable period after the
354 meeting within which to respond to the proposed chargebacks,
355 with such period to be commensurate with the volume of claims
356 under consideration, but in no case less than 45 days after the
357 meeting. The applicant or licensee is prohibited from changing
358 or altering the basis for each of the proposed chargebacks as
359 presented to the motor vehicle dealer’s representative following
360 the conclusion of the audit unless the applicant or licensee
361 receives new information affecting the basis for one or more
362 chargebacks and that new information is received within 30 days
363 after the conclusion of the timely conducted audit. If the
364 applicant or licensee claims the existence of new information,
365 the dealer must be given the same right to a meeting and right
366 to respond as when the chargeback was originally presented.
367 After all internal dispute resolution processes provided through
368 the applicant or licensee have been completed, the applicant or
369 licensee shall give written notice to the motor vehicle dealer
370 of the final amount of its proposed chargeback. If the dealer
371 disputes that amount, the dealer may file a protest with the
372 department within 30 days after receipt of the notice. If a
373 protest is timely filed, the department shall notify the
374 applicant or licensee of the filing of the protest, and the
375 applicant or licensee may not take any action to recover the
376 amount of the proposed chargeback until the department renders a
377 final determination, which is not subject to further appeal,
378 that the chargeback is in compliance with the provisions of this
379 section. In any hearing pursuant to this subsection, the
380 applicant or licensee has the burden of proof that its audit and
381 resulting chargeback are in compliance with this subsection.
382 (26) Notwithstanding the terms of any franchise agreement,
383 including any licensee’s program, policy, or procedure, the
384 applicant or licensee has refused to allocate, sell, or deliver
385 motor vehicles; charged back or withheld payments or other
386 things of value for which the dealer is otherwise eligible under
387 a sales promotion, program, or contest; prevented a motor
388 vehicle dealer from participating in any promotion, program, or
389 contest; or has taken or threatened to take any adverse action
390 against a dealer, including chargebacks, reducing vehicle
391 allocations, or terminating or threatening to terminate a
392 franchise because the dealer sold or leased a motor vehicle to a
393 customer who exported the vehicle to a foreign country or who
394 resold the vehicle, unless the licensee proves that the dealer
395 knew or reasonably should have known that the customer intended
396 to export or resell the motor vehicle. There is a rebuttable
397 presumption that the dealer neither knew nor reasonably should
398 have known of its customer’s intent to export or resell the
399 vehicle if the vehicle is titled or registered in any state in
400 this country. A licensee may not take any action against a motor
401 vehicle dealer, including reducing its allocations or supply of
402 motor vehicles to the dealer or charging back to a dealer any
403 incentive payment previously paid, unless the licensee first
404 meets in person, by telephone, or video conference with an
405 officer or other designated employee of the dealer. At such
406 meeting, the licensee must provide a detailed explanation, with
407 supporting documentation, as to the basis for its claim that the
408 dealer knew or reasonably should have known of the customer’s
409 intent to export or resell the motor vehicle. Thereafter, the
410 motor vehicle dealer shall have a reasonable period,
411 commensurate with the number of motor vehicles at issue, but not
412 less than 15 days, to respond to the licensee’s claims. If,
413 following the dealer’s response and completion of all internal
414 dispute resolution processes provided through the applicant or
415 licensee, the dispute remains unresolved, the dealer may file a
416 protest with the department within 30 days after receipt of a
417 written notice from the licensee that it still intends to take
418 adverse action against the dealer with respect to the motor
419 vehicles still at issue. If a protest is timely filed, the
420 department shall notify the applicant or licensee of the filing
421 of the protest, and the applicant or licensee may not take any
422 action adverse to the dealer until the department renders a
423 final determination, which is not subject to further appeal,
424 that the licensee’s proposed action is in compliance with the
425 provisions of this subsection. In any hearing pursuant to this
426 subsection, the applicant or licensee has the burden of proof on
427 all issues raised by this subsection. An applicant or licensee
428 may not take any adverse action against a motor vehicle dealer
429 because the dealer sold or leased a motor vehicle to a customer
430 who exported the vehicle to a foreign country or who resold the
431 vehicle unless the applicant or licensee provides written
432 notification to the motor vehicle dealer of such resale or
433 export within 12 months after the date the dealer sold or leased
434 the vehicle to the customer.
435 (27) Notwithstanding the terms of any franchise agreement,
436 the applicant or licensee has failed or refused to indemnify and
437 hold harmless any motor vehicle dealer against any judgment for
438 damages, or settlements agreed to by the applicant or licensee,
439 including, without limitation, court costs and reasonable
440 attorney attorneys fees, arising out of complaints, claims, or
441 lawsuits, including, without limitation, strict liability,
442 negligence, misrepresentation, express or implied warranty, or
443 revocation or rescission of acceptance of the sale of a motor
444 vehicle, to the extent the judgment or settlement relates to the
445 alleged negligent manufacture, design, or assembly of motor
446 vehicles, parts, or accessories. Nothing herein shall obviate
447 the licensee’s obligations pursuant to chapter 681.
448 (28) The applicant or licensee has published, disclosed, or
449 otherwise made available in any form information provided by a
450 motor vehicle dealer with respect to sales prices of motor
451 vehicles or profit per motor vehicle sold. Other confidential
452 financial information provided by motor vehicle dealers shall
453 not be published, disclosed, or otherwise made publicly
454 available except in composite form. However, this information
455 may be disclosed with the written consent of the dealer or in
456 response to a subpoena or order of the department, a court or a
457 lawful tribunal, or introduced into evidence in such a
458 proceeding, after timely notice to an affected dealer.
459 (29) The applicant or licensee has failed to reimburse a
460 motor vehicle dealer in full for the reasonable cost of
461 providing a loaner vehicle to any customer who is having a
462 vehicle serviced at the motor vehicle dealer, if a loaner is
463 required by the applicant or licensee, or a loaner is expressly
464 part of an applicant or licensee’s customer satisfaction index
465 or computation.
466 (30) The applicant or licensee has conducted or threatened
467 to conduct any audit of a motor vehicle dealer in order to
468 coerce or attempt to coerce the dealer to forego any rights
469 granted to the dealer under ss. 320.60-320.70 or under the
470 agreement between the licensee and the motor vehicle dealer.
471 Nothing in this section shall prohibit an applicant or licensee
472 from reasonably and periodically auditing a dealer to determine
473 the validity of paid claims, as permitted under this chapter, if
474 the licensee complies with the provisions of ss. 320.60-320.70
475 applicable to such audits.
476 (31) From and after the effective date of enactment of this
477 provision, the applicant or licensee has offered to any motor
478 vehicle dealer a franchise agreement that:
479 (a) Requires that a motor vehicle dealer bring an
480 administrative or legal action in a venue outside of this state;
481 (b) Requires that any arbitration, mediation, or other
482 legal proceeding be conducted outside of this state; or
483 (c) Requires that a law of a state other than Florida be
484 applied to any legal proceeding between a motor vehicle dealer
485 and a licensee.
486 (32) Notwithstanding the terms of any franchise agreement,
487 the applicant or licensee has rejected or withheld approval of
488 any proposed transfer in violation of s. 320.643 or a proposed
489 change of executive management in violation of s. 320.644.
490 (33) The applicant or licensee has attempted to sell or
491 lease, or has sold or leased, used motor vehicles at retail of a
492 line-make that is the subject of any franchise agreement with a
493 motor vehicle dealer in this state, other than trucks with a net
494 weight of more than 8,000 pounds.
495 (34) The applicant or licensee, after the effective date of
496 this subsection, has included in any franchise agreement with a
497 motor vehicle dealer a mandatory obligation or requirement of
498 the motor vehicle dealer to purchase, sell, or lease, or offer
499 for purchase, sale, or lease, any quantity of used motor
500 vehicles.
501 (35) The applicant or licensee has refused to assign
502 allocation earned by a motor vehicle dealer, or has refused to
503 sell motor vehicles to a motor vehicle dealer, because the motor
504 vehicle dealer has failed or refused to purchase, sell, lease,
505 or certify a certain quantity of used motor vehicles prescribed
506 by the licensee.
507 (36)(a) Notwithstanding the terms of any franchise
508 agreement, in addition to any other statutory or contractual
509 rights of recovery after the voluntary or involuntary
510 termination, cancellation, or nonrenewal of a franchise, failing
511 to pay the motor vehicle dealer, as provided in paragraph (d),
512 the following amounts:
513 1. The net cost paid by the dealer for each new car or
514 truck in the dealer’s inventory with mileage of 2,000 miles or
515 less, or a motorcycle with mileage of 100 miles or less,
516 exclusive of mileage placed on the vehicle before it was
517 delivered to the dealer.
518 2. The current price charged for each new, unused,
519 undamaged, or unsold part or accessory that:
520 a. Is in the current parts catalogue and is still in the
521 original, resalable merchandising package and in an unbroken
522 lot, except that sheet metal may be in a comparable substitute
523 for the original package; and
524 b. Was purchased by the dealer directly from the
525 manufacturer or distributor or from an outgoing authorized
526 dealer as a part of the dealer’s initial inventory.
527 3. The fair market value of each undamaged sign owned by
528 the dealer which bears a trademark or trade name used or claimed
529 by the applicant or licensee or its representative which was
530 purchased from or at the request of the applicant or licensee or
531 its representative.
532 4. The fair market value of all special tools, data
533 processing equipment, and automotive service equipment owned by
534 the dealer which:
535 a. Were recommended in writing by the applicant or licensee
536 or its representative and designated as special tools and
537 equipment;
538 b. Were purchased from or at the request of the applicant
539 or licensee or its representative; and
540 c. Are in usable and good condition except for reasonable
541 wear and tear.
542 5. The cost of transporting, handling, packing, storing,
543 and loading any property subject to repurchase under this
544 section.
545 (b) If the termination, cancellation, or nonrenewal of the
546 dealer’s franchise is the result of the bankruptcy or
547 reorganization of a licensee or its common entity, or the result
548 of a licensee’s plan, scheme, or policy, whether or not publicly
549 declared, which is intended to or has the effect of decreasing
550 the number of, or eliminating, the licensee’s franchised motor
551 vehicle dealers of a line-make in this state, or the result of a
552 termination, elimination, or cessation of manufacture or
553 reorganization of a licensee or its common entity, or the result
554 of a termination, elimination, or cessation of manufacture or
555 distribution of a line-make, in addition to the above payments
556 to the dealer, the licensee or its common entity, shall be
557 liable to and shall pay the motor vehicle dealer for an amount
558 at least equal to the fair market value of the franchise for the
559 line-make, which shall be the greater of the value determined as
560 of the day the licensee announces the action that results in the
561 termination, cancellation, or nonrenewal, or the value
562 determined on the day that is 12 months before that date. Fair
563 market value of the franchise for the line-make includes only
564 the goodwill value of the dealer’s franchise for that line-make
565 in the dealer’s community or territory.
566 (c) This subsection does not apply to a termination,
567 cancellation, or nonrenewal that is implemented as a result of
568 the sale of the assets or corporate stock or other ownership
569 interests of the dealer.
570 (d) The dealer shall return the property listed in this
571 subsection to the licensee within 90 days after the effective
572 date of the termination, cancellation, or nonrenewal. The
573 licensee shall supply the dealer with reasonable instructions
574 regarding the method by which the dealer must return the
575 property. Absent shipping instructions and prepayment of
576 shipping costs from the licensee or its common entity, the
577 dealer shall tender the inventory and other items to be returned
578 at the dealer’s facility. The compensation for the property
579 shall be paid by the licensee or its common entity
580 simultaneously with the tender of inventory and other items,
581 provided that, if the dealer does not have clear title to the
582 inventory and other items and is not in a position to convey
583 that title to the licensee, payment for the property being
584 returned may be made jointly to the dealer and the holder of any
585 security interest.
586 (37) Notwithstanding the terms of any franchise agreement,
587 the applicant or licensee has refused to allow or has limited or
588 restricted a motor vehicle dealer from acquiring or adding a
589 sales or service operation for another line-make of motor
590 vehicles at the same or expanded facility at which the motor
591 vehicle dealer currently operates a dealership unless the
592 applicant or licensee can demonstrate that such refusal,
593 limitation, or restriction is justified by consideration of
594 reasonable facility and financial requirements and the dealer’s
595 performance for the existing line-make.
596 (38) The applicant or licensee has failed or refused to
597 offer a bonus, incentive, or other benefit program, in whole or
598 in part, to a dealer or dealers in this state which it offers to
599 all of its other same line-make dealers nationally or to all of
600 its other same line-make dealers in the licensee’s designated
601 zone, region, or other licensee-designated area of which this
602 state is a part, unless the failure or refusal to offer the
603 program in this state is reasonably supported by substantially
604 different economic or marketing considerations than are
605 applicable to the licensee’s same line-make dealers in this
606 state. For purposes of this chapter, a licensee may not
607 establish this state alone as a designated zone, region, or area
608 or any other designation for a specified territory. A licensee
609 may offer a bonus, rebate, incentive, or other benefit program
610 to its dealers in this state which is calculated or paid on a
611 per vehicle basis and is related in part to a dealer’s facility
612 or the expansion, improvement, remodeling, alteration, or
613 renovation of a dealer’s facility. Any dealer who does not
614 comply with the facility criteria or eligibility requirements of
615 such program is entitled to receive a reasonable percentage of
616 the bonus, incentive, rebate, or other benefit offered by the
617 licensee under that program by complying with the criteria or
618 eligibility requirements unrelated to the dealer’s facility
619 under that program. For purposes of the previous sentence, the
620 percentage unrelated to the facility criteria or requirements is
621 presumed to be “reasonable” if it is not less than 80 percent of
622 the total of the per vehicle bonus, incentive, rebate, or other
623 benefits offered under the program.
624 (39) Notwithstanding any agreement, program, incentive,
625 bonus, policy, or rule, an applicant or licensee may not fail to
626 make any payment pursuant to any agreement, program, incentive,
627 bonus, policy, or rule for any temporary replacement motor
628 vehicle loaned, rented, or provided by a motor vehicle dealer to
629 or for its service or repair customers, even if the temporary
630 replacement motor vehicle has been leased, rented, titled, or
631 registered to the motor vehicle dealer’s rental or leasing
632 division or an entity that is owned or controlled by the motor
633 vehicle dealer, provided that the motor vehicle dealer or its
634 rental or leasing division or entity complies with the written
635 and uniformly enforced vehicle eligibility, use, and reporting
636 requirements specified by the applicant or licensee in its
637 agreement, program, policy, bonus, incentive, or rule relating
638 to loaner vehicles.
639 (40) Notwithstanding the terms of any franchise agreement,
640 the applicant or licensee may not require or coerce, or attempt
641 to require or coerce, a motor vehicle dealer to purchase goods
642 or services from a vendor selected, identified, or designated by
643 the applicant or licensee, or one of its parents, subsidiaries,
644 divisions, or affiliates, by agreement, standard, policy,
645 program, incentive provision, or otherwise, without making
646 available to the motor vehicle dealer the option to obtain the
647 goods or services of substantially similar design and quality
648 from a vendor chosen by the motor vehicle dealer. If the motor
649 vehicle dealer exercises such option, the dealer must provide
650 written notice of its desire to use the alternative goods or
651 services to the applicant or licensee, along with samples or
652 clear descriptions of the alternative goods or services that the
653 dealer desires to use. The licensee or applicant shall have the
654 opportunity to evaluate the alternative goods or services for up
655 to 30 days to determine whether it will provide a written
656 approval to the motor vehicle dealer to use said alternative
657 goods or services. Approval may not be unreasonably withheld by
658 the applicant or licensee. If the motor vehicle dealer does not
659 receive a response from the applicant or licensee within 30
660 days, approval to use the alternative goods or services is
661 deemed granted. If a dealer using alternative goods or services
662 complies with this subsection and has received approval from the
663 licensee or applicant, the dealer is not ineligible for all
664 benefits described in the agreement, standard, policy, program,
665 incentive provision, or otherwise solely for having used such
666 alternative goods or services. As used in this subsection, the
667 term “goods or services” is limited to such goods and services
668 used to construct or renovate dealership facilities or furniture
669 and fixtures at the dealership facilities. The term does not
670 include:
671 (a) Any materials subject to the applicant’s or licensee’s
672 intellectual property rights, including copyright, trademark, or
673 trade dress rights;
674 (b) Any special tool and training as required by the
675 applicant or licensee;
676 (c) Any part to be used in repairs under warranty
677 obligations of an applicant or licensee;
678 (d) Any good or service paid for entirely by the applicant
679 or licensee; or
680 (e) Any applicant’s or licensee’s design or architectural
681 review service.
682 (41)(a) The applicant or licensee has established,
683 implemented, or enforced criteria for measuring the sales or
684 service performance of any of its franchised motor vehicle
685 dealers in this state which have a material or adverse effect on
686 any motor vehicle dealer and which:
687 1. Are unfair, unreasonable, arbitrary, or inequitable; or
688 2. Do not include all relevant and material local and
689 regional criteria, data, and facts. Relevant and material
690 criteria, data, or facts include, but are not limited to, those
691 of motor vehicle dealerships of comparable size in comparable
692 markets. If such performance measurement criteria are based, in
693 whole or in part, on a survey, such survey must be based on a
694 statistically significant and valid random sample.
695 (b) An applicant, licensee, or common entity, or an
696 affiliate thereof, which enforces against any motor vehicle
697 dealer any such performance measurement criteria shall, upon the
698 request of the motor vehicle dealer, describe in writing to the
699 motor vehicle dealer, in detail, how the performance measurement
700 criteria were designed, calculated, established, and uniformly
701 applied.
702
703 A motor vehicle dealer who can demonstrate that a violation of,
704 or failure to comply with, any of the preceding provisions by an
705 applicant or licensee will or may can adversely and pecuniarily
706 affect the complaining dealer, shall be entitled to pursue all
707 of the remedies, procedures, and rights of recovery available
708 under ss. 320.695 and 320.697.
709 Section 2. For the purpose of incorporating the amendment
710 made by this act to section 320.64, Florida Statutes, in
711 references thereto, section 320.6992, Florida Statutes, is
712 reenacted to read:
713 320.6992 Application.—Sections 320.60-320.70, including
714 amendments to ss. 320.60-320.70, apply to all presently existing
715 or hereafter established systems of distribution of motor
716 vehicles in this state, except to the extent that such
717 application would impair valid contractual agreements in
718 violation of the State Constitution or Federal Constitution.
719 Sections 320.60-320.70 do not apply to any judicial or
720 administrative proceeding pending as of October 1, 1988. All
721 agreements renewed, amended, or entered into subsequent to
722 October 1, 1988, shall be governed by ss. 320.60-320.70,
723 including any amendments to ss. 320.60-320.70 which have been or
724 may be from time to time adopted, unless the amendment
725 specifically provides otherwise, and except to the extent that
726 such application would impair valid contractual agreements in
727 violation of the State Constitution or Federal Constitution.
728 Section 3. Sections 320.60, 320.605, 320.61, 320.615,
729 320.62, 320.63, 320.6403, 320.6405, 320.641, 320.6412, 320.6415,
730 320.642, 320.643, 320.644, 320.645, 320.646, 320.664, 320.67,
731 320.68, 320.69, 320.695, 320.696, 320.697, 320.6975, 320.698,
732 320.699, 320.69915, and 320.70, Florida Statutes, are reenacted
733 for the purpose of incorporating the amendment made by this act
734 to s. 320.64, Florida Statutes.
735 Section 4. This act shall take effect upon becoming a law.