Bill Text: FL S1048 | 2015 | Regular Session | Comm Sub
Bill Title: Motor Vehicle Manufacturer Licenses
Spectrum: Slight Partisan Bill (? 2-1)
Status: (Engrossed - Dead) 2015-04-28 - Died on Calendar [S1048 Detail]
Download: Florida-2015-S1048-Comm_Sub.html
Florida Senate - 2015 CS for CS for SB 1048 By the Committees on Rules; and Transportation; and Senator Garcia 595-04192-15 20151048c2 1 A bill to be entitled 2 An act relating to motor vehicle manufacturer 3 licenses; amending s. 320.64, F.S.; providing that a 4 motor vehicle dealer who received approval of a 5 facility from an applicant or licensee within a 6 specified timeframe is deemed to be in full compliance 7 with facility-related requirements; providing that 8 such motor vehicle dealer is entitled to certain 9 benefits under certain circumstances; providing 10 applicability; conforming a cross-reference; revising 11 provisions related to an applicant or licensee who has 12 undertaken or engaged in an audit of service-related 13 payments or incentive payments; reducing the timeframe 14 for the performance of such audits; defining the term 15 “incentive”; authorizing an applicant or licensee to 16 deny or charge back only the portion of a service 17 related claim or incentive claim which the applicant 18 or licensee has proven to be false or fraudulent or 19 for which the dealer failed to substantially comply 20 with certain procedures; prohibiting an applicant or 21 licensee from taking adverse action against a motor 22 vehicle dealer under certain circumstances; 23 prohibiting an applicant or licensee from failing to 24 make any payment due a motor vehicle dealer that 25 substantially complies with the terms of a certain 26 contract between the two parties regarding 27 reimbursement for temporary replacement vehicles under 28 certain circumstances; authorizing a motor vehicle 29 dealer to purchase goods or services from a vendor 30 chosen by the motor vehicle dealer, subject to certain 31 requirements; defining the term “goods or services”; 32 prohibiting an applicant or licensee from requiring a 33 motor vehicle dealer to pay for certain advertising or 34 marketing, or to participate in or affiliate with a 35 dealer advertising or marketing entity; prohibiting an 36 applicant or licensee from taking or threatening to 37 take any adverse action against a motor vehicle dealer 38 who refuses to join or participate in such entity; 39 defining the term “adverse action”; providing that an 40 applicant or licensee may not require a dealer to 41 participate in, or may not preclude only a number of 42 its motor vehicle dealers in a designated market area 43 from establishing, a voluntary motor vehicle dealer 44 advertising or marketing entity; providing that an 45 applicant or licensee is not required to fund such an 46 entity under certain circumstances; providing for 47 retroactive applicability under certain circumstances; 48 providing for severability; providing an effective 49 date. 50 51 Be It Enacted by the Legislature of the State of Florida: 52 53 Section 1. Present paragraph (h) of subsection (10) of 54 section 320.64, Florida Statutes, is redesignated as paragraph 55 (i), a new paragraph (h) is added to that subsection, present 56 paragraph (h) of subsection (10) and subsections (25) and (26) 57 of that section are amended, and subsections (39), (40), and 58 (41) are added to that section, to read: 59 320.64 Denial, suspension, or revocation of license; 60 grounds.—A license of a licensee under s. 320.61 may be denied, 61 suspended, or revoked within the entire state or at any specific 62 location or locations within the state at which the applicant or 63 licensee engages or proposes to engage in business, upon proof 64 that the section was violated with sufficient frequency to 65 establish a pattern of wrongdoing, and a licensee or applicant 66 shall be liable for claims and remedies provided in ss. 320.695 67 and 320.697 for any violation of any of the following 68 provisions. A licensee is prohibited from committing the 69 following acts: 70 (10) 71 (h) If an applicant or licensee offers any bonus, 72 incentive, rebate, or other program, standard, or policy that is 73 available to a motor vehicle dealer in this state and that is 74 premised, wholly or in part, on dealer facility improvements, 75 renovations, expansions, remodeling, alterations, or 76 installations of signs or other image elements, a motor vehicle 77 dealer who completes an approved facility in reliance upon such 78 offer shall be deemed to be in full compliance with all of the 79 applicant’s or licensee’s requirements related to facility, 80 sign, and image for the duration of a 10-year period following 81 such completion. If, during the 10-year period, the applicant or 82 licensee establishes a program, standard, or policy that offers 83 a new bonus, incentive, rebate, or other benefit, a motor 84 vehicle dealer that completed an approved facility in reliance 85 upon the prior program, standard, or policy but does not comply 86 with the provisions related to facility, sign, or image under 87 the new program, standard, or policy, except as hereinafter 88 provided, may not be eligible for benefits under the provisions 89 related to facility, sign, or image of the new program, 90 standard, or policy, but shall remain entitled to all the 91 benefits under the older program, standard, or policy, plus any 92 increase in the benefits between the old and new programs, 93 standards, or policies during the remainder of the 10-year 94 period. Nothing contained in this subsection shall in any way 95 obviate, affect, or alter the provisions of subsection (38). 96 (i)(h)A violation of paragraphs (b)-(h)(b) through (g)is 97 not a violation of s. 320.70 and does not subject any licensee 98 to any criminal penalty under s. 320.70. 99 (25) The applicant or licensee has undertaken or engaged in 100 an audit of warranty, maintenance, and other service-related 101 payments or incentive payments, including payments to a motor 102 vehicle dealer under any licensee-issued program, policy, or 103 other benefit, which previously have been paid to a motor 104 vehicle dealer in violation of this section or has failed to 105 comply with any of its obligations under s. 320.696. An 106 applicant or licensee may reasonably and periodically audit a 107 motor vehicle dealer to determine the validity of paid claims as 108 provided in s. 320.696. Audits of warranty, maintenance, and 109 other service-related payments shall be performed by an 110 applicant or licensee only during the 12-month1-yearperiod 111 immediately following the date the claim was paid. AuditsAudit112 of incentive payments shallonlybe performed only during the 113 12-monthfor an 18-monthperiod immediately following the date 114 the incentive was paid. As used in this section, the term 115 “incentive” includes any bonus, incentive, or other monetary or 116 nonmonetary thing of value. After such time periods have 117 elapsed, all warranty, maintenance, and other service-related 118 payments and incentive payments shall be deemed final and 119 incontrovertible for any reason notwithstanding any otherwise 120 applicable law, and the motor vehicle dealer shall not be 121 subject to any charge-back or repayment. An applicant or 122 licensee may deny a claim or, as a result of a timely conducted 123 audit, impose a charge-back against a motor vehicle dealer for 124 warranty, maintenance, or other service-related payments or 125 incentive payments only if the applicant or licensee can show 126 that the warranty, maintenance, or other service-related claim 127 or incentive claim was false or fraudulent or that the motor 128 vehicle dealer failed to substantially comply with the 129 reasonable written and uniformly applied procedures of the 130 applicant or licensee for such repairs or incentives, but only 131 for that portion of the claim so shown. Notwithstanding the 132 terms of any franchise agreement, guideline, program, policy, or 133 procedure, an applicant or licensee may deny or charge back only 134 that portion of a warranty, maintenance, or other service 135 related claim or incentive claim which the applicant or licensee 136 has proven to be false or fraudulent or for which the dealer 137 failed to substantially comply with the reasonable written and 138 uniformly applied procedures of the applicant or licensee for 139 such repairs or incentives, as set forth in this subsection. An 140 applicant or licensee may not charge back a motor vehicle dealer 141backsubsequent to the payment of a warranty, maintenance, or 142 service-related claim or incentive claim unless, within 30 days 143 after a timely conducted audit, a representative of the 144 applicant or licensee first meets in person, by telephone, or by 145 video teleconference with an officer or employee of the dealer 146 designated by the motor vehicle dealer. At such meeting the 147 applicant or licensee must provide a detailed explanation, with 148 supporting documentation, as to the basis for each of the claims 149 for which the applicant or licensee proposed a charge-back to 150 the dealer and a written statement containing the basis upon 151 which the motor vehicle dealer was selected for audit or review. 152 Thereafter, the applicant or licensee must provide the motor 153 vehicle dealer’s representative a reasonable period after the 154 meeting within which to respond to the proposed charge-backs, 155 with such period to be commensurate with the volume of claims 156 under consideration, but in no case less than 45 days after the 157 meeting. The applicant or licensee is prohibited from changing 158 or altering the basis for each of the proposed charge-backs as 159 presented to the motor vehicle dealer’s representative following 160 the conclusion of the audit unless the applicant or licensee 161 receives new information affecting the basis for one or more 162 charge-backs and that new information is received within 30 days 163 after the conclusion of the timely conducted audit. If the 164 applicant or licensee claims the existence of new information, 165 the dealer must be given the same right to a meeting and right 166 to respond as when the charge-back was originally presented. 167 After all internal dispute resolution processes provided through 168 the applicant or licensee have been completed, the applicant or 169 licensee shall give written notice to the motor vehicle dealer 170 of the final amount of its proposed charge-back. If the dealer 171 disputes that amount, the dealer may file a protest with the 172 department within 30 days after receipt of the notice. If a 173 protest is timely filed, the department shall notify the 174 applicant or licensee of the filing of the protest, and the 175 applicant or licensee may not take any action to recover the 176 amount of the proposed charge-back until the department renders 177 a final determination, which is not subject to further appeal, 178 that the charge-back is in compliance with the provisions of 179 this section. In any hearing pursuant to this subsection, the 180 applicant or licensee has the burden of proof that its audit and 181 resulting charge-back are in compliance with this subsection. 182 (26) Notwithstanding the terms of any franchise agreement, 183 including any licensee’s program, policy, or procedure, the 184 applicant or licensee has refused to allocate, sell, or deliver 185 motor vehicles; charged back or withheld payments or other 186 things of value for which the dealer is otherwise eligible under 187 a sales promotion, program, or contest; prevented a motor 188 vehicle dealer from participating in any promotion, program, or 189 contest; or has taken or threatened to take any adverse action 190 against a dealer, including charge-backs, reducing vehicle 191 allocations, or terminating or threatening to terminate a 192 franchise because the dealer sold or leased a motor vehicle to a 193 customer who exported the vehicle to a foreign country or who 194 resold the vehicle, unless the licensee proves that the dealer 195 knew or reasonably should have known that the customer intended 196 to export or resell the motor vehicle. There is a rebuttable 197 presumption that the dealer neither knew nor reasonably should 198 have known of its customer’s intent to export or resell the 199 vehicle if the vehicle is titled or registered in any state in 200 this country. A licensee may not take any action against a motor 201 vehicle dealer, including reducing its allocations or supply of 202 motor vehicles to the dealer, or charging back a dealer for an 203 incentive payment previously paid, unless the licensee first 204 meets in person, by telephone, or video conference with an 205 officer or other designated employee of the dealer. At such 206 meeting, the licensee must provide a detailed explanation, with 207 supporting documentation, as to the basis for its claim that the 208 dealer knew or reasonably should have known of the customer’s 209 intent to export or resell the motor vehicle. Thereafter, the 210 motor vehicle dealer shall have a reasonable period, 211 commensurate with the number of motor vehicles at issue, but not 212 less than 15 days, to respond to the licensee’s claims. If, 213 following the dealer’s response and completion of all internal 214 dispute resolution processes provided through the applicant or 215 licensee, the dispute remains unresolved, the dealer may file a 216 protest with the department within 30 days after receipt of a 217 written notice from the licensee that it still intends to take 218 adverse action against the dealer with respect to the motor 219 vehicles still at issue. If a protest is timely filed, the 220 department shall notify the applicant or licensee of the filing 221 of the protest, and the applicant or licensee may not take any 222 action adverse to the dealer until the department renders a 223 final determination, which is not subject to further appeal, 224 that the licensee’s proposed action is in compliance with the 225 provisions of this subsection. In any hearing pursuant to this 226 subsection, the applicant or licensee has the burden of proof on 227 all issues raised by this subsection. An applicant or licensee 228 may not take any adverse action against a motor vehicle dealer 229 because the dealer sold or leased a motor vehicle to a customer 230 who exported the vehicle to a foreign country or who resold the 231 vehicle unless the applicant or licensee provides written 232 notification to the motor vehicle dealer of such resale or 233 export within 12 months after the date the dealer sold or leased 234 the vehicle to the customer. 235 (39) Notwithstanding the terms of any agreement, program, 236 incentive, bonus, policy, or rule, an applicant or licensee 237 fails to make any payment pursuant to any of the foregoing for 238 any temporary replacement motor vehicle loaned, rented, or 239 provided by a motor vehicle dealer to or for its service or 240 repair customers, even if the temporary replacement motor 241 vehicle has been leased, rented, titled, or registered to the 242 motor vehicle dealer’s rental or leasing division or an entity 243 that is owned or controlled by the motor vehicle dealer, 244 provided that the motor vehicle dealer or its rental or leasing 245 division or entity complies with the written and uniformly 246 enforced vehicle eligibility, use, and reporting requirements 247 specified by the applicant or licensee in its agreement, 248 program, policy, bonus, incentive, or rule relating to loaner 249 vehicles. 250 (40) Notwithstanding the terms of any franchise agreement, 251 the applicant or licensee has required or coerced, or attempted 252 to require or coerce, a motor vehicle dealer to purchase goods 253 or services from a vendor selected, identified, or designated by 254 the applicant or licensee, or one of its parents, subsidiaries, 255 divisions, or affiliates, by agreement, standard, policy, 256 program, incentive provision, or otherwise, without making 257 available to the motor vehicle dealer the option to obtain the 258 goods or services of substantially similar design and quality 259 from a vendor chosen by the motor vehicle dealer. If the motor 260 vehicle dealer exercises such option, the dealer must provide 261 written notice of its desire to use the alternative goods or 262 services to the applicant or licensee, along with samples or 263 clear descriptions of the alternative goods or services that the 264 dealer desires to use. The licensee or applicant shall have the 265 opportunity to evaluate the alternative goods or services for up 266 to 30 days to determine whether it will provide a written 267 approval to the motor vehicle dealer to use said alternative 268 goods or services. Approval may not be unreasonably withheld by 269 the applicant or licensee. If the motor vehicle dealer does not 270 receive a response from the applicant or licensee within 30 271 days, approval to use the alternative goods or services shall be 272 deemed granted. If a dealer using alternative goods or services 273 complies with the terms of this subsection and has received 274 approval from the licensee or applicant, the dealer shall not be 275 ineligible for all benefits described in the agreement, 276 standard, policy, program, incentive provision, or otherwise 277 solely for having used such alternative goods or services. As 278 used in this subsection, the term “goods or services” is limited 279 to such goods and services used to construct or renovate 280 dealership facilities, or furniture and fixtures at the 281 dealership facilities. The term does not include: 282 (a) Any intellectual property of the applicant or licensee, 283 including signage incorporating the applicant’s or licensee’s 284 trademark or copyright, or facility or building materials to the 285 extent that the applicant’s or licensee’s trademark is displayed 286 thereon; 287 (b) Any special tool and training as required by the 288 licensee or applicant; 289 (c) Any part to be used in repairs under warranty 290 obligations of an applicant or licensee; 291 (d) Any good or service paid for entirely by the applicant 292 or licensee; or 293 (e) Any applicant’s or licensee’s design or architectural 294 review service. 295 (41)(a) The applicant or licensee, by agreement, policy, 296 program, standard, or otherwise, requires a motor vehicle 297 dealer, directly or indirectly, to advance or pay for, or to 298 reimburse the applicant or licensee for, any costs related to 299 the creation, development, showing, placement, or publication in 300 any media of any advertisement for a motor vehicle; requires a 301 motor vehicle dealer to participate in, contribute to, affiliate 302 with, or join a dealer advertising or marketing group, fund, 303 pool, association, or other entity; or takes or threatens to 304 take any adverse action against a motor vehicle dealer that 305 refuses to join or participate in such group, fund, pool, 306 association, or other entity. As used in this subsection, the 307 term “adverse action” includes, but is not limited to, reducing 308 allocations, charging fees for a licensee’s or dealer’s 309 advertising or a marketing group’s advertising or marketing, 310 terminating or threatening to terminate the motor vehicle 311 dealer’s franchise agreement, reducing any incentive for which 312 the motor vehicle dealer is eligible, or engaging in any action 313 that fails to take into account the equities of the motor 314 vehicle dealer. 315 (b) The applicant or licensee requires a dealer to 316 participate in, or precludes a number of its motor vehicle 317 dealers in a designated market area from establishing, a 318 voluntary motor vehicle dealer advertising or marketing group, 319 fund, pool, association, or other entity. Except as provided in 320 an agreement, if a motor vehicle dealer chooses to form an 321 independent advertising or marketing group, the applicant or 322 licensee is not required to fund such group. 323 (c) This subsection does not prohibit an applicant or 324 licensee from offering advertising or promotional materials to a 325 motor vehicle dealer for a fee or charge, if the use of such 326 advertising or promotional materials is voluntary for the motor 327 vehicle dealer. 328 329 A motor vehicle dealer who can demonstrate that a violation of, 330 or failure to comply with, any of the preceding provisions by an 331 applicant or licensee will or can adversely and pecuniarily 332 affect the complaining dealer, shall be entitled to pursue all 333 of the remedies, procedures, and rights of recovery available 334 under ss. 320.695 and 320.697. 335 Section 2. This act applies to all franchise agreements 336 entered into, renewed, or amended after October 1, 1988, except 337 to the extent that such application would impair valid 338 contractual agreements in violation of the State Constitution or 339 the United States Constitution. 340 Section 3. If any provision of this act or its application 341 to any person or circumstances is held invalid, the invalidity 342 does not affect other provisions or applications of this act 343 which can be given effect without the invalid provision or 344 application, and to this end the provisions of this act are 345 severable. 346 Section 4. This act shall take effect upon becoming a law.