Florida Senate - 2023                        COMMITTEE AMENDMENT
       Bill No. SB 712
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/20/2023           .                                

       The Committee on Transportation (Avila) recommended the
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (8), (9), (10), (11), (12),
    6  (13), (14), (15), and (16) of section 320.60, Florida Statutes,
    7  are redesignated as subsections (9), (11), (12), (13), (15),
    8  (18), (10), (16), and (17), respectively, new subsections (8)
    9  and (13) are added to that section, and subsection (2) and
   10  present subsection (15) of that section are amended, to read:
   11         320.60 Definitions for ss. 320.61-320.70.—Whenever used in
   12  ss. 320.61-320.70, unless the context otherwise requires, the
   13  following words and terms have the following meanings:
   14         (2) “Common entity” means a person:
   15         (a) Who is directly or indirectly either controlled by or
   16  has more than 30 percent of its equity interest directly or
   17  indirectly owned, beneficially or of record, through any form of
   18  ownership structure, by a manufacturer, an importer, a
   19  distributor, or a licensee, or an affiliate thereof.
   20         (b)Who has more than 30 percent of its equity interest
   21  directly or indirectly controlled or owned, beneficially or of
   22  record, through any form of ownership structure, by one or more
   23  persons who also directly or indirectly control or own,
   24  beneficially or of record, more than 30 40 percent of the voting
   25  equity interests of a manufacturer, an importer, a distributor,
   26  or a licensee, or an affiliate thereof; or
   27         (b)Who shares directors or officers or partners with a
   28  manufacturer.
   29         (c)Notwithstanding the foregoing, an entity that would
   30  otherwise be considered a common entity of a distributor under
   31  paragraph (a) or paragraph (b) because of its relation to a
   32  distributor is not considered a common entity of that
   33  distributor if:
   34         1.The distributor that the entity is related to was a
   35  licensed distributor on March 1, 2023;
   36         2.The entity is not a common entity of a manufacturer or
   37  importer; and
   38         3.The distributor that the entity is related to is not,
   39  and has never been, a common entity of a manufacturer or
   40  importer.
   41         (8)“Independent person” means a person who is not an
   42  agent, parent, subsidiary, common entity, officer, director, or
   43  employee of the licensee or an employed representative of a
   44  licensee, manufacturer, importer, or distributor.
   45         (14)“Motor vehicle dealer association” means a not-for
   46  profit entity organized under the laws of this state and
   47  qualified as tax-exempt under s. 501(c)(6) of the Internal
   48  Revenue Code which acts as a trade association that primarily
   49  represents the interests of franchised motor vehicle dealers and
   50  has a membership of at least 500 franchised motor vehicle
   51  dealers as defined in s. 320.27(1)(c)1.
   52         (16)(15) “Sell,” “selling,” “sold,” “exchange,” “retail
   53  sales,” and “leases” includes:
   54         (a)Accepting a deposit or receiving a payment for the
   55  purchase, lease, or other use of a motor vehicle, but does not
   56  include facilitating a motor vehicle dealer’s acceptance or a
   57  deposit or receipt of a payment from a consumer;
   58         (b)Accepting a reservation from a retail consumer for a
   59  specific motor vehicle identified by a vehicle identification
   60  number or other product identifier;
   61         (c)Setting the retail price for the purchase, lease, or
   62  other use of a motor vehicle;
   63         (d)Offering or negotiating with a retail consumer terms
   64  for the purchase, lease, financing, or other use of a motor
   65  vehicle;
   66         (e)Offering or negotiating with a retail consumer a value
   67  for a motor vehicle being traded in as part of the purchase,
   68  lease, or other use of a motor vehicle, but does not include a
   69  website or other means of electronic communication that
   70  identifies to a consumer a conditional trade-in value and that
   71  contains language informing the consumer that the trade-in value
   72  is not binding on any motor vehicle dealer;
   73         (f)Offering or negotiating with a retail consumer any
   74  service contract, extended warranty, vehicle maintenance
   75  contract, guaranteed asset protection agreement, or any other
   76  vehicle-related products or services in connection with the
   77  purchase or lease of a motor vehicle;
   78         (g) Any transaction where the title of a motor vehicle or a
   79  used motor vehicle is transferred to a retail consumer; or, and
   80  also
   81         (h) Any retail lease transaction where a retail consumer
   82  customer leases a vehicle for a period of at least 12 months,
   83  but does not include administering lease agreements, taking
   84  assignments of leases, performing required actions pursuant to
   85  such leases, or receiving payments under a lease agreement that
   86  was originated by a motor vehicle dealer. Establishing a price
   87  for sale pursuant to s. 320.64(24) does not constitute a sale or
   88  lease.
   89         Section 2. Section 320.605, Florida Statutes, is amended to
   90  read:
   91         320.605 Legislative intent.—It is the intent of the
   92  Legislature to protect the public health, safety, and welfare of
   93  the citizens of the state by regulating the licensing of motor
   94  vehicle dealers and manufacturers, maintaining competition,
   95  providing consumer protection and fair trade and providing
   96  minorities with opportunities for full participation as motor
   97  vehicle dealers. Sections 320.61-320.70 are intended to apply
   98  solely to the licensing of motor vehicle dealers and
   99  manufacturers and do not apply to non-motor-vehicle-related
  100  businesses.
  101         Section 3. Subsections (18), (23), and (24) of section
  102  320.64, Florida Statutes, are amended to read:
  103         320.64 Denial, suspension, or revocation of license;
  104  grounds.—A license of a licensee under s. 320.61 may be denied,
  105  suspended, or revoked within the entire state or at any specific
  106  location or locations within the state at which the applicant or
  107  licensee engages or proposes to engage in business, upon proof
  108  that the section was violated with sufficient frequency to
  109  establish a pattern of wrongdoing, and a licensee or applicant
  110  shall be liable for claims and remedies provided in ss. 320.695
  111  and 320.697 for any violation of any of the following
  112  provisions. A licensee is prohibited from committing the
  113  following acts:
  114         (18) The applicant or licensee has established a system of
  115  motor vehicle allocation or distribution or has implemented a
  116  system of allocation or distribution of motor vehicles to one or
  117  more of its franchised motor vehicle dealers which:
  118         (a) Reduces or alters allocations or supplies of new motor
  119  vehicles to the dealer to achieve, directly or indirectly, a
  120  purpose that is prohibited by ss. 320.60-320.70;
  121         (b)Conditionally or unconditionally reserves a specific
  122  motor vehicle identified by vehicle identification number or
  123  other unique identifier for a specifically named person, except
  124  for purposes of replacing a consumer’s vehicle pursuant to
  125  chapter 681;
  126         (c)Requires or incentivizes motor vehicle dealers to sell
  127  or lease, or to negotiate the sale or lease of, a specific motor
  128  vehicle identified by vehicle identification number or other
  129  unique identifier to a specifically named person;
  130         (d)Requires or incentivizes motor vehicle dealers to sell
  131  or lease a motor vehicle at a specified price or profit margin
  132  or restricts the price at which a motor vehicle dealer may sell
  133  or lease a motor vehicle; or
  134         (e)Is, or which otherwise is unfair, inequitable,
  135  unreasonably discriminatory, or not supportable by reason and
  136  good cause after considering the equities of the affected motor
  137  vehicles dealer or dealers. As used in this paragraph, “unfair”
  138  includes, but is not limited to, refusing or failing to offer to
  139  any dealer an equitable supply of new vehicles under its
  140  franchise, by model, mix, or color, as the licensee offers or
  141  allocates to its other same line-make dealers in this state or
  142  using the number of motor vehicles preordered or reserved by
  143  consumers as a factor in determining the allocation of motor
  144  vehicles to motor vehicle dealers.
  146  An applicant or licensee shall maintain for 3 years records that
  147  describe its methods or formula of allocation and distribution
  148  of its motor vehicles and records of its actual allocation and
  149  distribution of motor vehicles to its motor vehicle dealers in
  150  this state. As used in this subsection, “unfair” includes,
  151  without limitation, the refusal or failure to offer to any
  152  dealer an equitable supply of new vehicles under its franchise,
  153  by model, mix, or colors as the licensee offers or allocates to
  154  its other same line-make dealers in the state.
  155         (23) The applicant or licensee has engaged in any of the
  156  activities of a motor vehicle dealer as defined in s. 320.60 or
  157  has competed or is competing with respect to any activity
  158  covered by the franchise agreement with a motor vehicle dealer
  159  of the same line-make located in this state with whom the
  160  applicant or licensee has entered into a franchise agreement,
  161  except as permitted in s. 320.645 or in subsection (24) with
  162  respect to the remote electronic transmission of a motor vehicle
  163  accessory, option, add-on, feature, improvement, or upgrade.
  164         (24) The applicant or licensee, or common entity thereof,
  165  has sold or leased a motor vehicle of a line-make to any retail
  166  consumer in this state, or has sold or activated for a fee any
  167  permanent or temporary motor vehicle accessory, option, add-on,
  168  feature, improvement, or upgrade to any retail consumer in the
  169  state, except through a motor vehicle dealer properly licensed
  170  pursuant to s. 320.27 and holding a franchise agreement for the
  171  line-make that includes the motor vehicle. Notwithstanding this
  172  subsection, an applicant, a licensee, or their common entity may
  173  sell or activate for a fee a permanent or temporary motor
  174  vehicle accessory, option, add-on, feature, improvement, or
  175  upgrade for a motor vehicle of a line-make manufactured,
  176  imported, or distributed by the applicant or licensee and
  177  registered in this state only if the accessory, option, add-on,
  178  feature, improvement, or upgrade is provided directly to the
  179  motor vehicle through remote electronic transmission, provided
  180  that if such motor vehicle was sold or leased as new by a
  181  Florida-franchised motor vehicle dealer within the 3-year period
  182  preceding such remote electronic transmission, the applicant or
  183  licensee must pay the Florida-franchised motor vehicle dealer a
  184  percentage of the gross sale price for the accessory, option,
  185  add-on, feature, improvement, or upgrade which is at least
  186  commensurate with the dealer margin structure established by the
  187  applicant or licensee for the sale of the vehicle to which the
  188  accessory, option, add-on, feature, improvement, or upgrade was
  189  remotely transmitted. As used in this subsection, the dealer
  190  margin structure is calculated by the applicant or licensee
  191  subtracting the invoiced vehicle wholesale price from the
  192  manufacturer’s suggested retail price, then adding to that
  193  figure all monetary per-vehicle incentives offered by the
  194  applicant or licensee whether or not received by the motor
  195  vehicle dealer, and then dividing that sum by the invoiced
  196  vehicle wholesale price. This subsection section does not apply
  197  to sales by the applicant or licensee of motor vehicles to its
  198  current employees, employees of companies affiliated by common
  199  ownership, charitable not-for-profit organizations, and the
  200  Federal Government.
  202  A motor vehicle dealer who can demonstrate that a violation of,
  203  or failure to comply with, any of the preceding provisions by an
  204  applicant or licensee will or may adversely and pecuniarily
  205  affect the complaining dealer, shall be entitled to pursue all
  206  of the remedies, procedures, and rights of recovery available
  207  under ss. 320.695 and 320.697.
  208         Section 4. Subsection (6) of section 320.642, Florida
  209  Statutes, is amended to read:
  210         320.642 Dealer licenses in areas previously served;
  211  procedure.—
  212         (6) When a proposed addition or relocation concerns a
  213  dealership that performs or is to perform only service, as
  214  defined in s. 320.60 s. 320.60(16), and will not or does not
  215  sell or lease new motor vehicles, as defined in s. 320.60 s.
  216  320.60(15), the proposal shall be subject to notice and protest
  217  pursuant to the provisions of this section.
  218         (a) Standing to protest the addition or relocation of a
  219  service-only dealership shall be limited to those instances in
  220  which the applicable mileage requirement established in
  221  subparagraphs (3)(a)2. and (3)(b)1. is met.
  222         (b) The addition or relocation of a service-only dealership
  223  shall not be subject to protest if:
  224         1. The applicant for the service-only dealership location
  225  is an existing motor vehicle dealer of the same line-make as the
  226  proposed additional or relocated service-only dealership;
  227         2. There is no existing dealer of the same line-make closer
  228  than the applicant to the proposed location of the additional or
  229  relocated service-only dealership; and
  230         3. The proposed location of the additional or relocated
  231  service-only dealership is at least 7 miles from all existing
  232  motor vehicle dealerships of the same line-make, other than
  233  motor vehicle dealerships owned by the applicant.
  234         (c) In determining whether existing franchised motor
  235  vehicle dealers are providing adequate representations in the
  236  community or territory for the line-make in question in a
  237  protest of the proposed addition or relocation of a service-only
  238  dealership, the department may consider the elements set forth
  239  in paragraph (2)(b), provided:
  240         1. With respect to subparagraph (2)(b)1., only the impact
  241  as it relates to service may be considered;
  242         2. Subparagraph (2)(b)3. shall not be considered;
  243         3. With respect to subparagraph (2)(b)9., only service
  244  facilities shall be considered; and
  245         4. With respect to subparagraph (2)(b)11., only the volume
  246  of service business transacted shall be considered.
  247         (d) If an application for a service-only dealership is
  248  granted, the department shall issue a license which permits only
  249  service, as defined in s. 320.60 s. 320.60(16), and does not
  250  permit the selling or leasing of new motor vehicles, as defined
  251  in s. 320.60 s. 320.60(15). If a service-only dealership
  252  subsequently seeks to sell new motor vehicles at its location,
  253  the notice and protest provisions of this section shall apply.
  254         Section 5. Subsection (1), paragraph (a) of subsection (2),
  255  and subsection (4) of section 320.645, Florida Statutes, are
  256  amended to read:
  257         320.645 Restriction upon ownership of dealership by
  258  licensee.—
  259         (1) A No licensee, manufacturer, importer, or distributor,
  260  manufacturer, or agent of the licensee, a manufacturer,
  261  importer, or distributor, or any parent, subsidiary, common
  262  entity, or officer, or employed representative of the licensee,
  263  manufacturer, importer, or distributor may not directly or
  264  indirectly shall own, or operate, or control, by contract,
  265  agreement, or otherwise either directly or indirectly, a motor
  266  vehicle dealership for any line-make in this state if the
  267  licensee, manufacturer, importer, or distributor has
  268  manufactured, imported, or distributed for the sale or service
  269  of motor vehicles of any line-make which have been or are
  270  offered for sale under a franchise agreement with a motor
  271  vehicle dealer in this state with an independent person. Any
  272  person who is not prohibited by this section from owning,
  273  operating, or controlling a motor vehicle dealership may be
  274  issued a license pursuant to s. 320.27. Any person prohibited by
  275  this section from owning, operating, or controlling a motor
  276  vehicle dealership. A licensee may not be issued a motor vehicle
  277  dealer license pursuant to s. 320.27. However, a no such
  278  licensee subject to the prohibition in this section is not will
  279  be deemed to be in violation of this section:
  280         (a) When operating a motor vehicle dealership for a
  281  temporary period, not to exceed 1 year, during the transition
  282  from one owner of the motor vehicle dealership to another;
  283         (b) When operating a motor vehicle dealership temporarily
  284  for a reasonable period for the exclusive purpose of broadening
  285  the diversity of its dealer body and enhancing opportunities for
  286  qualified persons who are part of a group that has historically
  287  been underrepresented in its dealer body, or for other qualified
  288  persons who the licensee deems lack the resources to purchase or
  289  capitalize the dealership outright, in a bona fide relationship
  290  with an independent person, other than a licensee or its agent
  291  or affiliate, who has made a significant investment that is
  292  subject to loss in the dealership within the dealership’s first
  293  year of operation and who can reasonably expect to acquire full
  294  ownership of the dealership on reasonable terms and conditions;
  295  or
  296         (c) If the department determines, after a hearing on the
  297  matter, pursuant to chapter 120, at the request of any person,
  298  that there is no independent person available in the community
  299  or territory to own and operate the motor vehicle dealership in
  300  a manner consistent with the public interest. This paragraph
  301  shall apply only if the motor vehicle dealership at issue sells
  302  motor vehicles of a line-make that, at the time of the hearing,
  303  is offered for sale by at least one other existing motor vehicle
  304  dealership not owned, operated, or controlled by the licensee,
  305  an officer or employed representative of the licensee, a parent,
  306  subsidiary, or common entity of the licensee, or a manufacturer,
  307  importer, or distributor. A motor vehicle dealer association has
  308  standing to intervene in any hearing held pursuant to this
  309  subsection.
  311  In the any such case of a, the licensee must continue to make
  312  the motor vehicle dealership owned or operated pursuant to
  313  paragraph (a), paragraph (b), or paragraph (c), the dealership
  314  must be continually made available for sale to an independent
  315  person at a fair and reasonable price. Approval of the sale of
  316  such a motor vehicle dealership to a proposed motor vehicle
  317  dealer shall not be unreasonably withheld.
  318         (2) As used in this section, the term:
  319         (a) “Independent person” is a person who is not an officer,
  320  director, or employee of the licensee.
  321         (4) Nothing in this chapter shall prohibit a distributor as
  322  defined in s. 320.60 s. 320.60(5) or common entity an affiliate
  323  thereof that is not a manufacturer or importer, a division of a
  324  manufacturer or importer, an entity that is controlled by a
  325  manufacturer or importer, or a common entity of a manufacturer
  326  or importer, and that is not owned, in whole or in part,
  327  directly or indirectly, by a manufacturer or importer, as
  328  defined in s. 320.60 s. 320.60(9), from receiving a license or
  329  licenses as defined in s. 320.27 and owning and operating a
  330  motor vehicle dealership or dealerships that sell or service
  331  motor vehicles other than any line-make of motor vehicles
  332  distributed by the distributor. Neither a distributor nor an
  333  affiliate thereof may receive a license pursuant to s. 320.27
  334  for a motor vehicle dealership, or own or operate a motor
  335  vehicle dealership, that sells or services motor vehicles of the
  336  line-make of motor vehicles distributed by the distributor.
  337         Section 6. Section 320.67, Florida Statutes, is amended to
  338  read:
  339         320.67 Inquiry and inspection of books or other documents
  340  of licensee.—
  341         (1) The department shall conduct an inquiry of a licensee
  342  may inspect the pertinent books, records, letters, and contracts
  343  of a licensee relating to any written complaint alleging a
  344  violation of any provision of ss. 320.60-320.70 made to it
  345  against such licensee made by a motor vehicle dealer with a
  346  current franchise agreement issued by the licensee, or a motor
  347  vehicle dealer association with at least one member with a
  348  current franchise agreement issued by the licensee.
  349         (2) In the exercise of its duties under this section, the
  350  department is granted and authorized to exercise the power of
  351  subpoena for the purposes of compelling production of and
  352  inspecting pertinent books, records, letters, and contracts of a
  353  licensee and compelling the attendance of witnesses at
  354  deposition and the production of any documentary evidence
  355  necessary to the disposition by it of any written complaint
  356  under this section. The inquiry required by this section must be
  357  commenced within 30 days after receipt of the written complaint.
  358  The department may allow the licensee that is the subject of the
  359  complaint no more than 60 days from commencement of the inquiry
  360  to provide a written response. Within 30 days after the deadline
  361  for a written response by the licensee, the department must
  362  provide a written response to the complainant stating whether
  363  the department intends to take action against the licensee under
  364  subsection (3) and, if so, what action the department intends to
  365  take. Any information obtained may not be used against the
  366  licensee as the basis for a criminal prosecution under the laws
  367  of this state.
  368         (3)If, as the result of an inquiry conducted under this
  369  section, the department determines that a licensee has violated
  370  ss. 320.60-320.70, the department must take appropriate action
  371  against the licensee, which may include license suspension or
  372  revocation; denial of a license renewal application; assessment,
  373  imposition, levy, and collection of an appropriate civil fine;
  374  or instituting a civil action for issuance of an injunction
  375  pursuant to s. 320.695.
  376         (4)If the complainant is a motor vehicle dealer
  377  association and the department’s inquiry determines that a
  378  licensee has violated ss. 320.60-320.70, the motor vehicle
  379  dealer association may seek a declaration and adjudication that
  380  the alleged conduct of the licensee violated ss. 320.60-320.70
  381  by filing with the department a request for a proceeding and an
  382  administrative hearing which conforms substantially with the
  383  requirements of ss. 120.569 and 120.57.
  384         (5)This section does not alter or affect the rights of a
  385  motor vehicle dealer to bring a claim or action against a
  386  licensee pursuant to any other provision of ss. 320.60-320.70.
  387         Section 7. Subsection (13) of section 681.102, Florida
  388  Statutes, is amended to read:
  389         681.102 Definitions.—As used in this chapter, the term:
  390         (13) “Manufacturer” means any person, whether a resident or
  391  nonresident of this state, who manufactures or assembles motor
  392  vehicles, or who manufactures or assembles chassis for
  393  recreational vehicles, or who manufactures or installs on
  394  previously assembled truck or recreational vehicle chassis
  395  special bodies or equipment which, when installed, forms an
  396  integral part of the motor vehicle, or a distributor or an
  397  importer as those terms are defined in s. 320.60 s. 320.60(5),
  398  or an importer as defined in s. 320.60(7). A dealer as defined
  399  in s. 320.60 s. 320.60(11)(a) shall not be deemed to be a
  400  manufacturer, distributor, or importer as provided in this
  401  section.
  402         Section 8. Section 681.113, Florida Statutes, is amended to
  403  read:
  404         681.113 Dealer liability.—Except as provided in ss.
  405  681.103(3) and 681.114(2), nothing in this chapter imposes any
  406  liability on a dealer as defined in s. 320.60 s. 320.60(11)(a)
  407  or creates a cause of action by a consumer against a dealer,
  408  except for written express warranties made by the dealer apart
  409  from the manufacturer’s warranties. A dealer may not be made a
  410  party defendant in any action involving or relating to this
  411  chapter, except as provided in this section. The manufacturer
  412  shall not charge back or require reimbursement by the dealer for
  413  any costs, including, but not limited to, any refunds or vehicle
  414  replacements, incurred by the manufacturer arising out of this
  415  chapter, in the absence of evidence that the related repairs had
  416  been carried out by the dealer in a manner substantially
  417  inconsistent with the manufacturer’s published instructions.
  418         Section 9. This act shall take effect July 1, 2023.
  420  ================= T I T L E  A M E N D M E N T ================
  421  And the title is amended as follows:
  422         Delete everything before the enacting clause
  423  and insert:
  424                        A bill to be entitled                      
  425         An act relating to motor vehicle sales; amending s.
  426         320.60, F.S.; revising and providing definitions;
  427         amending s. 320.605, F.S.; providing legislative
  428         intent; amending s. 320.64, F.S.; prohibiting an
  429         applicant or a licensee from certain actions in the
  430         allocation or distribution of motor vehicles to
  431         franchised motor vehicle dealers; revising the
  432         definition of the term “unfair”; prohibiting
  433         applicants and licensees from engaging in certain
  434         activities of motor vehicle dealers; authorizing an
  435         applicant, a licensee, or their common entity to sell
  436         or activate certain motor vehicle accessories or
  437         features through remote electronic transmission;
  438         providing for revenue-sharing regarding such sale or
  439         activation; providing for the calculation of the
  440         dealer margin structure; providing applicability;
  441         amending s. 320.642, F.S.; conforming cross
  442         references; amending s. 320.645, F.S.; revising
  443         provisions prohibiting a manufacturer, a distributor,
  444         or an importer from owning, operating, or controlling
  445         a motor vehicle dealership in this state; specifying
  446         when certain licenses may be and are prohibited from
  447         being issued; revising exceptions to certain
  448         prohibitions on licensees; providing applicability;
  449         providing that a motor vehicle dealer association has
  450         standing to intervene under certain circumstances;
  451         making technical changes; deleting the definition of
  452         the term “independent person”; conforming cross
  453         references; amending s. 320.67, F.S.; requiring the
  454         Department of Highway Safety and Motor Vehicles to
  455         conduct an inquiry relating to certain written
  456         complaints; providing purposes of the department’s use
  457         of a subpoena; authorizing the department to allow a
  458         written response to the complaint; requiring the
  459         department to commence the inquiry by a certain
  460         timeframe; requiring the department to provide a
  461         certain written response to the complainant by a
  462         certain date; requiring the department to take certain
  463         action if the department determines that a licensee
  464         violated certain statutes; authorizing a motor vehicle
  465         dealer association to file an administrative action
  466         regarding such complaint in certain circumstances;
  467         providing construction; amending ss. 681.102 and
  468         681.113, F.S.; conforming cross-references; providing
  469         an effective date.