Florida Senate - 2021                                     SB 978
       By Senator Hooper
       16-01185-21                                            2021978__
    1                        A bill to be entitled                      
    2         An act relating to motor vehicle dealers; amending s.
    3         320.60, F.S.; defining the term “motor vehicle dealer
    4         association”; amending s. 320.67, F.S.; requiring the
    5         Department of Highway Safety and Motor Vehicles to
    6         conduct investigations of licensees and inspect
    7         specified materials relating to written complaints
    8         made against licensees by motor vehicle dealers and
    9         motor vehicle dealer associations; revising the
   10         department’s authority relating to conducting
   11         investigations and examinations; authorizing the
   12         department to petition a court if a licensee or any
   13         person refuses to testify, produce materials, or obey
   14         a subpoena or subpoena duces tecum; requiring the
   15         court to issue an order; requiring the subpoenaed
   16         licensee or person to pay certain costs; providing a
   17         penalty for a licensee or person who fails to comply
   18         with the court’s order; authorizing the department to
   19         designate agents for specified purposes; providing
   20         that subpoenaed witnesses are entitled to witness
   21         fees; providing exceptions; prohibiting the use of
   22         information obtained pursuant to certain
   23         investigations and examinations as the basis for
   24         criminal prosecution; requiring the department to take
   25         appropriate action against a licensee if the
   26         department determines the licensee has violated
   27         specified provisions of law; authorizing the
   28         department to adopt rules; amending s. 320.695, F.S.;
   29         authorizing motor vehicle dealer associations to make
   30         application to any circuit court for certain remedies;
   31         amending s. 320.699, F.S.; revising procedures for
   32         administrative hearings and adjudications to include
   33         motor vehicle dealer associations; amending s.
   34         320.642, F.S.; conforming cross-references; providing
   35         an effective date.
   37  Be It Enacted by the Legislature of the State of Florida:
   39         Section 1. Present subsections (12) through (16) of section
   40  320.60, Florida Statutes, are redesignated as subsections (13)
   41  through (17), respectively, and a new subsection (12) is added
   42  to that section, to read:
   43         320.60 Definitions for ss. 320.61-320.70.—Whenever used in
   44  ss. 320.61-320.70, unless the context otherwise requires, the
   45  following words and terms have the following meanings:
   46         (12)“Motor vehicle dealer association” means a not-for
   47  profit entity organized under the laws of this state and
   48  qualified as tax exempt pursuant to s. 501(c)(6) of the Internal
   49  Revenue Code which acts as a trade association and maintains a
   50  membership of at least 30 motor vehicle dealers.
   51         Section 2. Section 320.67, Florida Statutes, is amended to
   52  read:
   53         320.67 Inspection of books or other documents of licensee.—
   54         (1) The department shall conduct an investigation of a
   55  licensee relating to, and may inspect the pertinent books,
   56  records, letters, and contracts of a licensee relating to, any
   57  written complaint made to it against such licensee by any motor
   58  vehicle dealer or motor vehicle dealer association.
   59         (2) For purposes of any investigation or examination
   60  conducted under this section In the exercise of its duties under
   61  this section, the department is granted and authorized to
   62  exercise the power of subpoena to administer oaths or
   63  affirmations, examine witnesses, require affidavits, take
   64  depositions, and compel the attendance of witnesses and the
   65  production of books, papers, documents, records, and other
   66  evidence. An authorized representative of the department may
   67  serve such subpoenas for the attendance of witnesses and the
   68  production of any documentary evidence necessary to the
   69  disposition by it of any written complaint under this section.
   70         (3)If a licensee, or any person, refuses to testify;
   71  produce books, papers, documents, or records; or otherwise obey
   72  the subpoena or subpoena duces tecum, the department may
   73  petition a court of competent jurisdiction in any county in
   74  which an action may be maintained against such licensee or
   75  person pursuant to s. 47.011 or s. 47.051, whereupon the court
   76  shall issue an order requiring such licensee or person to obey
   77  the subpoena or show cause for failing to obey the subpoena.
   78  Unless the licensee or person shows sufficient cause for failing
   79  to obey the subpoena, the court shall direct the licensee or
   80  person to obey the subpoena. Costs incurred by the department to
   81  obtain an order granting, in whole or in part, its petition
   82  shall be paid by the subpoenaed licensee or person, and failure
   83  to comply with such order shall constitute contempt of court.
   84         (4)For purposes of any investigation, examination, or
   85  proceeding initiated by the department under this chapter, the
   86  department may designate agents to serve subpoenas and other
   87  process and administer oaths or affirmations. The department
   88  shall exercise this power on its own initiative in accordance
   89  with ss. 320.615 and 320.71.
   90         (5)Witnesses subpoenaed under this section are entitled to
   91  witness fees at the same rate established by s. 92.142 for
   92  witnesses in a civil case, except that witness fees are not
   93  payable for appearance at the witness’s place of business during
   94  regular business hours or at the witness’s residence.
   95         (6) Any information obtained pursuant to any investigation
   96  or examination conducted under this section may not be used
   97  against the licensee as the basis for a criminal prosecution
   98  under the laws of this state.
   99         (7)If, as the result of an investigation or examination
  100  conducted pursuant to this section, the department determines
  101  that a licensee has violated any provision of ss. 320.60-320.70,
  102  the department shall take appropriate action against the
  103  licensee, which may include license suspension or revocation;
  104  denial of a license renewal application; assessment, imposition,
  105  levy, and collection of an appropriate civil fine; or
  106  instituting a civil action for issuance of an injunction
  107  pursuant to s. 320.695.
  108         (8)The department may adopt rules to administer this
  109  section.
  110         Section 3. Section 320.695, Florida Statutes, is amended to
  111  read:
  112         320.695 Injunction.—In addition to the remedies provided in
  113  this chapter, and notwithstanding the existence of any adequate
  114  remedy at law, the department, or any motor vehicle dealer, or
  115  any motor vehicle dealer association in the name of the
  116  department and state and for the use and benefit of the motor
  117  vehicle dealer, is authorized to make application to any circuit
  118  court of the state for the grant, upon a hearing and for cause
  119  shown, of a temporary or permanent injunction, or both,
  120  restraining any person from acting as a licensee under the terms
  121  of ss. 320.60-320.70 without being properly licensed hereunder,
  122  or from violating or continuing to violate any of the provisions
  123  of ss. 320.60-320.70, or from failing or refusing to comply with
  124  the requirements of this law or any rule or regulation adopted
  125  hereunder. Such injunction shall be issued without bond. A
  126  single act in violation of the provisions of ss. 320.60-320.70
  127  shall be sufficient to authorize the issuance of an injunction.
  128  However, this statutory remedy shall not be applicable to any
  129  motor vehicle dealer after final determination by the department
  130  under s. 320.641(3).
  131         Section 4. Section 320.699, Florida Statutes, is amended to
  132  read:
  133         320.699 Administrative hearings and adjudications;
  134  procedure.—
  135         (1) A motor vehicle dealer, or person with entitlements to
  136  or in a motor vehicle dealer, who is directly and adversely
  137  affected by the action or conduct of an applicant or licensee
  138  which is alleged to be in violation of any provision of ss.
  139  320.60-320.70, or a motor vehicle dealer association with a
  140  member who is directly and adversely affected by the action or
  141  conduct of an applicant or a licensee which is alleged to be in
  142  violation of any provision of ss. 320.60-320.70, may seek a
  143  declaration and adjudication of its rights with respect to the
  144  alleged action or conduct of the applicant or licensee by:
  145         (a) filing with the department a request for a proceeding
  146  and an administrative hearing which conforms substantially with
  147  the requirements of ss. 120.569 and 120.57.; or
  148         (2)(b)A motor vehicle dealer with standing under s.
  149  320.642(3) may file Filing with the department a written
  150  objection or notice of protest pursuant to s. 320.642.
  151         (3)(2) If a written objection or notice of protest is filed
  152  with the department under subsection (2) paragraph (1)(b), a
  153  hearing shall be held not sooner than 180 days nor later than
  154  240 days from the date of filing of the first objection or
  155  notice of protest, unless the time is extended by the
  156  administrative law judge for good cause shown. This subsection
  157  shall govern the schedule of hearings in lieu of any other
  158  provision of law with respect to administrative hearings
  159  conducted by the Department of Highway Safety and Motor Vehicles
  160  or the Division of Administrative Hearings, including
  161  performance standards of state agencies, which may be included
  162  in current and future appropriations acts.
  163         Section 5. Subsection (6) of section 320.642, Florida
  164  Statutes, is amended to read:
  165         320.642 Dealer licenses in areas previously served;
  166  procedure.—
  167         (6) When a proposed addition or relocation concerns a
  168  dealership that performs or is to perform only service, as
  169  defined in s. 320.60(17) s. 320.60(16), and will not or does not
  170  sell or lease new motor vehicles, as defined in s. 320.60(16) s.
  171  320.60(15), the proposal shall be subject to notice and protest
  172  pursuant to the provisions of this section.
  173         (a) Standing to protest the addition or relocation of a
  174  service-only dealership shall be limited to those instances in
  175  which the applicable mileage requirement established in
  176  subparagraphs (3)(a)2. and (3)(b)1. is met.
  177         (b) The addition or relocation of a service-only dealership
  178  shall not be subject to protest if:
  179         1. The applicant for the service-only dealership location
  180  is an existing motor vehicle dealer of the same line-make as the
  181  proposed additional or relocated service-only dealership;
  182         2. There is no existing dealer of the same line-make closer
  183  than the applicant to the proposed location of the additional or
  184  relocated service-only dealership; and
  185         3. The proposed location of the additional or relocated
  186  service-only dealership is at least 7 miles from all existing
  187  motor vehicle dealerships of the same line-make, other than
  188  motor vehicle dealerships owned by the applicant.
  189         (c) In determining whether existing franchised motor
  190  vehicle dealers are providing adequate representations in the
  191  community or territory for the line-make in question in a
  192  protest of the proposed addition or relocation of a service-only
  193  dealership, the department may consider the elements set forth
  194  in paragraph (2)(b), provided:
  195         1. With respect to subparagraph (2)(b)1., only the impact
  196  as it relates to service may be considered;
  197         2. Subparagraph (2)(b)3. shall not be considered;
  198         3. With respect to subparagraph (2)(b)9., only service
  199  facilities shall be considered; and
  200         4. With respect to subparagraph (2)(b)11., only the volume
  201  of service business transacted shall be considered.
  202         (d) If an application for a service-only dealership is
  203  granted, the department shall issue a license which permits only
  204  service, as defined in s. 320.60(17) s. 320.60(16), and does not
  205  permit the selling or leasing of new motor vehicles, as defined
  206  in s. 320.60(16) s. 320.60(15). If a service-only dealership
  207  subsequently seeks to sell new motor vehicles at its location,
  208  the notice and protest provisions of this section shall apply.
  209         Section 6. This act shall take effect July 1, 2021.