Florida Senate - 2018 CS for CS for CS for SB 616
By the Committees on Rules; Commerce and Tourism; and
Transportation; and Senators Passidomo, Perry, and Hutson
595-03546-18 2018616c3
1 A bill to be entitled
2 An act relating to motor vehicle dealers; amending s.
3 320.27, F.S.; revising the definitions of the terms
4 “motor vehicle dealer,” “franchised motor vehicle
5 dealer,” “independent motor vehicle dealer,” and
6 “wholesale motor vehicle dealer”; deleting the
7 definition of “motor vehicle broker”; adding an
8 exception to the prohibition against persons other
9 than licensed motor vehicle dealers from advertising
10 for sale or lease any motor vehicle belonging to
11 another party; authorizing owners of motor vehicles
12 titled in their names to advertise and offer motor
13 vehicles for sale on their own behalf, provided such
14 vehicles are acquired and sold in good faith and not
15 for the purpose of avoiding specified requirements;
16 prohibiting a licensed motor vehicle dealer from
17 allowing any person other than its bona fide employee
18 to use its motor vehicle dealer license for the
19 purpose of acting in the capacity of or conducting
20 motor vehicle lease transactions as a motor vehicle
21 dealer; providing that any person acting in violation
22 of specified licensing requirements or misrepresenting
23 to any person his or her relationship with any motor
24 vehicle dealer is deemed to have committed an unfair
25 and deceptive trade practice in violation of specified
26 provisions; requiring, within a specified timeframe,
27 the Department of Highway Safety and Motor Vehicles to
28 deliver or mail to each licensee the necessary renewal
29 forms along with a statement that the licensee is
30 required to complete any applicable continuing
31 education or industry certification requirements;
32 deleting certain continuing education and
33 certification requirements; requiring any licensee who
34 does not file his or her application and fees and any
35 other requisite documents, as required by law, before
36 the license expiration date to cease engaging in
37 business as a motor vehicle dealer on the license
38 expiration date; requiring applications received by
39 the department for renewal of independent motor
40 vehicle dealer licenses to certify that the dealer has
41 completed continuing education before filing the
42 renewal forms with the department, subject to certain
43 requirements; providing requirements for continuing
44 education and dealer schools; authorizing such schools
45 to charge a fee for providing continuing education;
46 requiring applications received by the department for
47 renewal of franchised motor vehicle dealer licenses to
48 certify that the dealer has completed certain industry
49 certification before filing the renewal forms with the
50 department, subject to certain requirements; providing
51 requirements for industry certification and certain
52 statewide industry associations of franchised motor
53 vehicle dealers; authorizing an association to charge
54 up to a specified fee for providing the industry
55 certification; providing for annual adjustments to the
56 maximum fee, beginning on a specified date;
57 authorizing industry certification for licensees
58 belonging to a dealership group to be accomplished by
59 a certain designated person; defining the term
60 “dealership group”; requiring a licensee who seeks to
61 satisfy the certification through a dealership group
62 to provide the department with certain evidence at the
63 time of filing the certificate of completion;
64 providing an effective date.
65
66 Be It Enacted by the Legislature of the State of Florida:
67
68 Section 1. Paragraphs (c) and (d) of subsection (1) and
69 subsections (2) and (4) of section 320.27, Florida Statutes, are
70 amended to read:
71 320.27 Motor vehicle dealers.—
72 (1) DEFINITIONS.—The following words, terms, and phrases
73 when used in this section have the meanings respectively
74 ascribed to them in this subsection, except where the context
75 clearly indicates a different meaning:
76 (c) “Motor vehicle dealer” means any person engaged in the
77 business of buying, selling, or leasing dealing in motor
78 vehicles or offering or displaying motor vehicles for sale or
79 lease at wholesale, excluding sales from a manufacturer, factory
80 branch, distributor, or importer licensed pursuant to s. 320.61
81 to a franchised motor vehicle dealer licensed pursuant to this
82 section, or at retail, or who may service and repair motor
83 vehicles pursuant to an agreement as defined in s. 320.60(1).
84 Any person who buys, sells, or leases deals in three or more
85 motor vehicles in any 12-month period or who offers or displays
86 for sale or lease three or more motor vehicles in any 12-month
87 period is shall be prima facie presumed to be a motor vehicle
88 dealer. Any person who engages in any of the following
89 activities is deemed to be a motor vehicle dealer: possessing,
90 storing, advertising, or displaying motor vehicles that such
91 person offers for retail sale or lease; compensating customers
92 for vehicles at wholesale or retail, also known as trade-ins;
93 negotiating with customers regarding the terms of sale or lease
94 for a motor vehicle offered for retail sale or lease by such
95 person; providing test drives of motor vehicles that such person
96 offers for retail sale or lease; delivering or arranging for the
97 delivery of a motor vehicle in conjunction with the retail sale
98 or lease of the motor vehicle by such person engaged in such
99 business. The terms “selling” and “sale” include lease-purchase
100 transactions. A motor vehicle dealer may, at retail or
101 wholesale, sell a recreational vehicle as described in s.
102 320.01(1)(b)1.-6. and 8., acquired in exchange for the sale or
103 lease of a motor vehicle, provided such acquisition is
104 incidental to the principal business of being a motor vehicle
105 dealer. However, a motor vehicle dealer may not buy a
106 recreational vehicle for the purpose of resale unless licensed
107 as a recreational vehicle dealer pursuant to s. 320.771. A motor
108 vehicle dealer may apply for a certificate of title to a motor
109 vehicle required to be registered under s. 320.08(2)(b), (c),
110 and (d), using a manufacturer’s statement of origin as permitted
111 by s. 319.23(1), only if such dealer is authorized by a
112 franchised agreement as defined in s. 320.60(1), to buy, sell,
113 or deal in such vehicle and is authorized by such agreement to
114 perform delivery and preparation obligations and warranty defect
115 adjustments on the motor vehicle; provided this limitation shall
116 not apply to recreational vehicles, van conversions, or any
117 other motor vehicle manufactured on a truck chassis. The
118 transfer of a motor vehicle by a dealer not meeting these
119 qualifications shall be titled as a used vehicle. The
120 classifications of motor vehicle dealers are defined as follows:
121 1. “Franchised motor vehicle dealer” means any person who
122 engages in the business of repairing, servicing, buying,
123 selling, or leasing dealing in motor vehicles pursuant to an
124 agreement as defined in s. 320.60(1). A motor vehicle dealer may
125 apply for a certificate of title to a motor vehicle required to
126 be registered under s. 320.08(2)(b), (c), and (d) or s.
127 320.08(3)(a), (b), or (c), using a manufacturer’s statement of
128 origin as permitted by s. 319.23(1), only if such dealer is
129 authorized by a franchise agreement as defined in s. 320.60(1)
130 to buy, sell, or lease such vehicles and to perform delivery and
131 preparation obligations and warranty defect adjustments on the
132 motor vehicle. This limitation does not apply to recreational
133 vehicles, van conversions, or any other motor vehicle
134 manufactured on a truck chassis. A motor vehicle dealer may not
135 transfer a manufacturer’s statement of origin for a motor
136 vehicle to any person who intends to sell such motor vehicle in
137 this state unless such person is a licensed motor vehicle dealer
138 authorized by a franchise agreement to buy, sell, or lease such
139 vehicles.
140 2. “Independent motor vehicle dealer” means any person
141 other than a franchised or wholesale motor vehicle dealer who
142 engages in the business of buying, selling, or leasing dealing
143 in motor vehicles, and who may service and repair motor
144 vehicles.
145 3. “Wholesale motor vehicle dealer” means any person who
146 engages exclusively in the business of buying or, selling, or
147 dealing in motor vehicles at wholesale or with motor vehicle
148 auctions. Such person shall be licensed to do business in this
149 state, shall not sell or auction a vehicle to any person who is
150 not a licensed dealer, and shall not have the privilege of the
151 use of dealer license plates. Any person who buys, sells, or
152 deals in motor vehicles at wholesale or with motor vehicle
153 auctions on behalf of a licensed motor vehicle dealer and as a
154 bona fide employee of such licensed motor vehicle dealer is not
155 required to be licensed as a wholesale motor vehicle dealer. In
156 such cases it shall be prima facie presumed that a bona fide
157 employer-employee relationship exists. A wholesale motor vehicle
158 dealer shall be exempt from the display provisions of this
159 section but shall maintain an office wherein records are kept in
160 order that those records may be inspected.
161 4. “Motor vehicle auction” means any person offering motor
162 vehicles or recreational vehicles for sale to the highest bidder
163 where buyers are licensed motor vehicle dealers. Such person
164 shall not sell a vehicle to anyone other than a licensed motor
165 vehicle dealer.
166 5. “Salvage motor vehicle dealer” means any person who
167 engages in the business of acquiring salvaged or wrecked motor
168 vehicles for the purpose of reselling them and their parts.
169
170 Notwithstanding anything in this subsection to the contrary, the
171 term “motor vehicle dealer” does not include persons not engaged
172 in the purchase, or sale, or lease of motor vehicles as a
173 business who are disposing of vehicles acquired for their own
174 use or for use in their business or acquired by foreclosure or
175 by operation of law, provided such vehicles are acquired and
176 sold in good faith and not for the purpose of avoiding the
177 provisions of this law; persons engaged in the business of
178 manufacturing, selling, or offering or displaying for sale or
179 lease at wholesale or retail no more than 25 trailers in a 12-
180 month period; public officers while performing their official
181 duties; receivers; trustees, administrators, executors,
182 guardians, or other persons appointed by, or acting under the
183 judgment or order of, any court; banks, finance companies, or
184 other loan agencies that acquire motor vehicles as an incident
185 to their regular business; persons whose sole dealing in motor
186 vehicles is owning a publication in which, or hosting a website
187 on which, licensed motor vehicle dealers display vehicles for
188 sale or lease; persons primarily engaged in the business of the
189 short-term rental of motor vehicles, which rental term may not
190 exceed 12 months, who are not involved in the retail sale or
191 lease of motor vehicles; motor vehicle brokers; and motor
192 vehicle rental and leasing companies that sell motor vehicles
193 only to motor vehicle dealers licensed under this section.
194 Vehicles owned under circumstances described in this paragraph
195 may be disposed of at retail, wholesale, or auction, unless
196 otherwise restricted. A manufacturer of fire trucks, ambulances,
197 or school buses may sell such vehicles directly to governmental
198 agencies or to persons who contract to perform or provide
199 firefighting, ambulance, or school transportation services
200 exclusively to governmental agencies without processing such
201 sales through dealers if such fire trucks, ambulances, school
202 buses, or similar vehicles are not presently available through
203 motor vehicle dealers licensed by the department.
204 (d) “Motor vehicle broker” means any person engaged in the
205 business of offering to procure or procuring motor vehicles for
206 the general public, or who holds himself or herself out through
207 solicitation, advertisement, or otherwise as one who offers to
208 procure or procures motor vehicles for the general public, and
209 who does not store, display, or take ownership of any vehicles
210 for the purpose of selling such vehicles.
211 (2) LICENSE REQUIRED.—No person shall engage in business
212 as, serve in the capacity of, or act as a motor vehicle dealer
213 in this state without first obtaining a license therefor in the
214 appropriate classification as provided in this section. With the
215 exception of transactions with motor vehicle auctions, no person
216 other than a licensed motor vehicle dealer may advertise for
217 sale or lease any motor vehicle belonging to another party
218 unless as a direct result of a bona fide legal proceeding, court
219 order, settlement of an estate, or by operation of law, or if
220 done by a person whose sole dealing in motor vehicles is owning
221 a publication in which, or hosting a website on which, licensed
222 motor vehicle dealers display vehicles for sale or lease.
223 However, owners of motor vehicles titled in their names may
224 advertise and offer motor vehicles for sale on their own behalf,
225 provided such vehicles are acquired and sold in good faith and
226 not for the purpose of avoiding the requirements of this
227 section. It shall be unlawful for a licensed motor vehicle
228 dealer to allow any person other than its a bona fide employee
229 to use the motor vehicle dealer license for the purpose of
230 acting in the capacity of or conducting motor vehicle sales or
231 lease transactions as a motor vehicle dealer. Any person acting
232 selling or offering a motor vehicle for sale in violation of the
233 licensing requirements of this subsection, or who misrepresents
234 to any person his or her its relationship with any manufacturer,
235 importer, or distributor, or motor vehicle dealer, in addition
236 to the penalties provided herein, shall be deemed to have
237 committed guilty of an unfair and deceptive trade practice as
238 defined in violation of part II of chapter 501 and shall be
239 subject to the provisions of subsections (8) and (9).
240 (4) LICENSE CERTIFICATE.—
241 (a) A license certificate shall be issued by the department
242 in accordance with such application when the application is
243 regular in form and in compliance with the provisions of this
244 section. The license certificate may be in the form of a
245 document or a computerized card as determined by the department.
246 The actual cost of each original, additional, or replacement
247 computerized card shall be borne by the licensee and is in
248 addition to the fee for licensure. Such license, when so issued,
249 entitles the licensee to carry on and conduct the business of a
250 motor vehicle dealer. Each license issued to a franchise motor
251 vehicle dealer expires on December 31 of the year of its
252 expiration unless revoked or suspended before prior to that
253 date. Each license issued to an independent or wholesale dealer
254 or auction expires on April 30 of the year of its expiration
255 unless revoked or suspended prior to that date. At least 60 days
256 before the license expiration date, the department shall deliver
257 or mail to each licensee the necessary renewal forms along with
258 a statement that the licensee is required to complete any
259 applicable continuing education or industry certification
260 requirements. Each independent dealer shall certify that the
261 dealer (owner, partner, officer, or director of the licensee, or
262 a full-time employee of the licensee that holds a responsible
263 management-level position) has completed 8 hours of continuing
264 education prior to filing the renewal forms with the department.
265 Such certification shall be filed once every 2 years. The
266 continuing education shall include at least 2 hours of legal or
267 legislative issues, 1 hour of department issues, and 5 hours of
268 relevant motor vehicle industry topics. Continuing education
269 shall be provided by dealer schools licensed under paragraph (b)
270 either in a classroom setting or by correspondence. Such schools
271 shall provide certificates of completion to the department and
272 the customer which shall be filed with the license renewal form,
273 and such schools may charge a fee for providing continuing
274 education. Any licensee who does not file his or her application
275 and fees and any other requisite documents, as required by law,
276 with the department at least 30 days prior to the license
277 expiration date shall cease to engage in business as a motor
278 vehicle dealer on the license expiration date. A renewal filed
279 with the department within 45 days after the expiration date
280 shall be accompanied by a delinquent fee of $100. Thereafter, a
281 new application is required, accompanied by the initial license
282 fee. A license certificate duly issued by the department may be
283 modified by endorsement to show a change in the name of the
284 licensee, provided, as shown by affidavit of the licensee, the
285 majority ownership interest of the licensee has not changed or
286 the name of the person appearing as franchisee on the sales and
287 service agreement has not changed. Modification of a license
288 certificate to show any name change as herein provided shall not
289 require initial licensure or reissuance of dealer tags; however,
290 any dealer obtaining a name change shall transact all business
291 in and be properly identified by that name. All documents
292 relative to licensure shall reflect the new name. In the case of
293 a franchise dealer, the name change shall be approved by the
294 manufacturer, distributor, or importer. A licensee applying for
295 a name change endorsement shall pay a fee of $25 which fee shall
296 apply to the change in the name of a main location and all
297 additional locations licensed under the provisions of subsection
298 (5). Each initial license application received by the department
299 shall be accompanied by verification that, within the preceding
300 6 months, the applicant, or one or more of his or her designated
301 employees, has attended a training and information seminar
302 conducted by a licensed motor vehicle dealer training school.
303 Any applicant for a new franchised motor vehicle dealer license
304 who has held a valid franchised motor vehicle dealer license
305 continuously for the past 2 years and who remains in good
306 standing with the department is exempt from the prelicensing
307 training requirement. Such seminar shall include, but is not
308 limited to, statutory dealer requirements, which requirements
309 include required bookkeeping and recordkeeping procedures,
310 requirements for the collection of sales and use taxes, and such
311 other information that in the opinion of the department will
312 promote good business practices. No seminar may exceed 8 hours
313 in length.
314 (b) Each initial license application received by the
315 department for licensure under subparagraph (1)(c)2. shall be
316 accompanied by verification that, within the preceding 6 months,
317 the applicant (owner, partner, officer, or director of the
318 applicant, or a full-time employee of the applicant that holds a
319 responsible management-level position) has successfully
320 completed training conducted by a licensed motor vehicle dealer
321 training school. Such training must include training in titling
322 and registration of motor vehicles, laws relating to unfair and
323 deceptive trade practices, laws relating to financing with
324 regard to buy-here, pay-here operations, and such other
325 information that in the opinion of the department will promote
326 good business practices. Successful completion of this training
327 shall be determined by examination administered at the end of
328 the course and attendance of no less than 90 percent of the
329 total hours required by such school. Any applicant who had held
330 a valid motor vehicle dealer’s license continuously within the
331 past 2 years and who remains in good standing with the
332 department is exempt from the prelicensing requirements of this
333 section. The department shall have the authority to adopt any
334 rule necessary for establishing the training curriculum; length
335 of training, which shall not exceed 8 hours for required
336 department topics and shall not exceed an additional 24 hours
337 for topics related to other regulatory agencies’ instructor
338 qualifications; and any other requirements under this section.
339 The curriculum for other subjects shall be approved by any and
340 all other regulatory agencies having jurisdiction over specific
341 subject matters; however, the overall administration of the
342 licensing of these dealer schools and their instructors shall
343 remain with the department. Such schools are authorized to
344 charge a fee.
345 (c) Each application received by the department for renewal
346 of a license under subparagraph (1)(c)2. must certify that the
347 dealer (owner, partner, officer, or director of the licensee, or
348 a full-time employee of the licensee that holds a responsible
349 management-level position) has completed 8 hours of continuing
350 education prior to filing the renewal forms with the department.
351 Such certification must be filed once every 2 years. The
352 continuing education must include at least 2 hours of legal or
353 legislative issues, 1 hour of department issues, and 5 hours of
354 relevant motor vehicle industry topics. Continuing education
355 shall be provided by dealer schools licensed under paragraph (b)
356 either in a classroom setting or by correspondence. Such schools
357 shall provide certificates of completion to the department and
358 the customer which shall be filed with the license renewal form,
359 and such schools may charge a fee for providing continuing
360 education.
361 (d) Each application received by the department for renewal
362 of a license under subparagraph (1)(c)1. must certify that the
363 dealer (dealer operator, owner, partner, officer, director, or
364 general manager of the licensee) has completed 4 hours of
365 industry certification on legal and legislative issues each year
366 prior to filing the renewal forms with the department. Industry
367 certification shall be provided by a Florida-based, nonprofit,
368 dealer-owned, statewide industry association of franchised motor
369 vehicle dealers with state and federal compliance credentials
370 approved by the department, and shall be in a classroom setting
371 in convenient locations within the state. Such association shall
372 provide certificates of completion to the department and the
373 customer which shall be filed with the license renewal form. An
374 application for renewal of a license previously issued for 1
375 year must be accompanied by a certificate establishing
376 completion of 4 hours of industry certification during the prior
377 year. An application for renewal of a license previously issued
378 for 2 years must be accompanied by certificates establishing
379 completion of 8 hours of industry certification, except that
380 renewal of a 2-year license that expires on December 31, 2019,
381 must be accompanied by a certificate establishing completion of
382 4 hours of industry certification. An association may charge a
383 fee not to exceed $500 per 4 hours for providing the industry
384 certification. In 2020 and for each subsequent year, the maximum
385 fee of $500 per 4 hours shall be increased by a percentage equal
386 to the annual Consumer Price Index for All Urban Consumers
387 calculated for the previous year by the Bureau of Labor
388 Statistics of the United States Department of Labor. In the case
389 of licensees belonging to a dealership group, the required
390 industry certification may be satisfied for all licensees in the
391 dealership group through completion of the industry
392 certification by a single designated owner, officer, director,
393 or manager of the dealership group. For purposes of this
394 section, the term “dealership group” means two or more licensed
395 franchised motor vehicle dealers with at least one common
396 officer or with common owners having legal or equitable title of
397 at least 50 percent of each dealer in the group. A licensee who
398 seeks to satisfy the required industry certification through a
399 dealership group must provide the department with evidence of
400 the required common ownership at the time of filing the
401 certificate of completion.
402 Section 2. This act shall take effect January 1, 2019.