Bill Text: FL S1048 | 2015 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Introduced.html
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-Introduced.html
Florida Senate - 2015 SB 1048 By Senator Garcia 38-00969-15 20151048__ 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; revising 8 provisions relating to when an applicant or licensee 9 has undertaken or engaged in an audit of service 10 related payments or incentive payments; limiting the 11 timeframe for the performance of such audits; defining 12 the term “incentive”; providing that an applicant or 13 licensee may only deny or charge back that portion of 14 a service-related claim or incentive claim which the 15 applicant or licensee has proven to be false or 16 fraudulent or for which the dealer failed to 17 substantially comply with certain procedures; 18 prohibiting an applicant or licensee from taking 19 adverse action against a motor vehicle dealer because 20 a motor vehicle sold, leased, or delivered to a 21 customer was resold or exported within a specified 22 period after delivery to the customer, subject to 23 certain requirements and restrictions; prohibiting an 24 applicant or licensee from failing to make any payment 25 due a motor vehicle dealer that substantially complies 26 with the terms of a certain contract between the two 27 parties regarding reimbursement for temporary 28 replacement vehicles under certain circumstances; 29 prohibiting the applicant or licensee from requiring 30 or coercing a motor vehicle dealer to purchase goods 31 or services from a vendor under certain circumstances; 32 defining the term “goods”; prohibiting the applicant 33 or licensee from failing to provide written notice to 34 a motor vehicle dealer of the motor vehicle dealer’s 35 rights relating to the purchase of goods or services 36 from a vendor; prohibiting the applicant or licensee 37 from failing to provide a motor vehicle dealer a 38 written statement disclosing the identity of a vendor 39 under certain circumstances and subject to certain 40 requirements; prohibiting the applicant or licensee 41 from failing to provide a motor vehicle dealer the 42 right to purchase signs or other image elements from a 43 vendor selected by the motor vehicle dealer under 44 certain circumstances and subject to certain 45 requirements; prohibiting an applicant or licensee 46 from requiring a motor vehicle dealer to participate 47 in or affiliate with a dealer advertising or marketing 48 entity; providing that an applicant or licensee may 49 not take or threaten to take any adverse action 50 against a motor vehicle dealer who refuses to join or 51 participate in such entity; defining the term “adverse 52 action”; providing that an applicant or licensee may 53 not require a dealer to participate in, and may not 54 preclude only some of its motor vehicle dealers in a 55 designated market area from establishing, a voluntary 56 motor vehicle dealer advertising or marketing entity; 57 prohibiting the applicant or licensee from failing to 58 act in good faith or deal fairly with a motor vehicle 59 dealer regarding the terms or provisions of any 60 agreement; requiring the Department of Highway Safety 61 and Motor Vehicles or a court to consider certain 62 factors in determining whether an applicant or 63 licensee has failed to act in good faith or deal 64 fairly with a motor vehicle dealer regarding the terms 65 or provisions of any agreement; conforming a cross 66 reference; amending s. 320.641, F.S.; providing that 67 any motor vehicle dealer may file a petition or 68 complaint with the department or a court for a 69 determination as to whether specified notices of 70 intent are unfair or prohibited, under certain 71 circumstances; specifying the circumstances under 72 which a complainant motor vehicle dealer substantially 73 prevails in a certain cause of action; amending s. 74 320.642, F.S.; providing that a franchised motor 75 vehicle dealer with standing to protest the proposed 76 addition or relocation of a motor vehicle dealer may 77 file a protest with the department or a court; 78 directing the department not to issue a license for 79 the proposed additional or relocated motor vehicle 80 dealer until a certain final decision not subject to 81 further appeal is rendered; amending s. 320.643, F.S.; 82 providing that a motor vehicle dealer whose proposed 83 sale is rejected may file with a court a certain 84 complaint; providing that any person whose proposed 85 sale of stock is rejected may file with a court a 86 certain complaint; creating s. 320.69913, F.S.; 87 providing alternative civil causes of action and 88 procedures for a motor vehicle dealer directly and 89 adversely affected by the action or conduct of an 90 applicant or licensee which is alleged to be in 91 violation of any provision of ss. 320.60-320.70, F.S.; 92 providing an effective date. 93 94 WHEREAS, the Legislature finds that motor vehicle 95 manufacturers control nearly every aspect of a motor vehicle 96 dealer’s operations, and 97 WHEREAS, at the beginning of the relationship and at 98 renewal periods, which are determined entirely by the 99 manufacturer, a dealer must sign a contract of adhesion drafted 100 by the manufacturer and must do so generally without any 101 negotiation, and 102 WHEREAS, due to the unequal bargaining power wielded by 103 manufacturers, which has been recognized by state and federal 104 courts, state legislatures, and the Congress over the last 40 105 years, licensees or franchisors operating under ss. 320.60 106 320.70, Florida Statutes, have been able to demand that motor 107 vehicle dealers, at the time of their appointment, provide 108 dealership facilities that meet size, configuration, and 109 appearance requirements imposed by the manufacturer, and 110 WHEREAS, such facilities require dealer investments of tens 111 of millions of dollars which benefit the public by their 112 location and appearance and improve the working conditions of 113 the dealership’s employees, and 114 WHEREAS, without regard to such investments, manufacturers 115 often establish new facility standards or offer so-called 116 “voluntary” incentive programs for additional renovations or 117 alterations, or both, before the dealer has had time to 118 sufficiently depreciate and recover its original facility 119 investment, and 120 WHEREAS, such programs, in effect, economically coerce a 121 dealer to comply with the demands of the manufacturer or risk 122 not benefitting from the incentive program and being placed at 123 an unfair competitive disadvantage, and 124 WHEREAS, the foregoing negatively affects Florida consumers 125 by reducing competition and increasing consumer costs and 126 requiring potential customers to travel farther to transact 127 business with a motor vehicle dealer, among other things, and 128 WHEREAS, the Legislature intends to allow motor vehicle 129 dealers in this state to have the use and benefit of dealership 130 facility investments for at least 10 years before the dealers 131 may be required by the manufacturers to make additional 132 improvements as a condition of participation in bonus or 133 incentive programs, NOW, THEREFORE, 134 135 Be It Enacted by the Legislature of the State of Florida: 136 137 Section 1. Present paragraph (h) of subsection (10) of 138 section 320.64, Florida Statutes, is redesignated as paragraph 139 (i) and amended, a new paragraph (h) is added to that 140 subsection, subsections (25) and (26) of that section are 141 amended, and subsections (39) through (42) are added to that 142 section, to read: 143 320.64 Denial, suspension, or revocation of license; 144 grounds.—A license of a licensee under s. 320.61 may be denied, 145 suspended, or revoked within the entire state or at any specific 146 location or locations within the state at which the applicant or 147 licensee engages or proposes to engage in business, upon proof 148 that the section was violated with sufficient frequency to 149 establish a pattern of wrongdoing, and a licensee or applicant 150 shall be liable for claims and remedies provided in ss. 320.695 151 and 320.697 for any violation of any of the following 152 provisions. A licensee is prohibited from committing the 153 following acts: 154 (10) 155 (h) If an applicant or licensee offers any bonus, 156 incentive, rebate, or other program that is available to a motor 157 vehicle dealer in this state which is premised, wholly or in 158 part, on dealer facility improvements, renovations, expansion, 159 remodeling, alterations, or installation of signs or other image 160 elements, a motor vehicle dealer who received approval of its 161 facility from the applicant or licensee within 10 years prior to 162 the offer shall be deemed to be in full compliance with 163 facility-related requirements under the offer for the duration 164 of that 10-year period. 165 (i)(h)A violation of paragraphs (b) through (h)(g)is not 166 a violation of s. 320.70 and does not subject any licensee to 167 any criminal penalty under s. 320.70. 168 (25) The applicant or licensee has undertaken or engaged in 169 an audit of warranty, maintenance, and other service-related 170 payments or incentive payments, including payments to a motor 171 vehicle dealer under any licensee-issued program, policy, or 172 other benefit, which previously have been paid to a motor 173 vehicle dealer in violation of this section or has failed to 174 comply with any of its obligations under s. 320.696. An 175 applicant or licensee may reasonably and periodically audit a 176 motor vehicle dealer to determine the validity of paid claims as 177 provided in s. 320.696. Audits of warranty, maintenance, and 178 other service-related payments shall be performed by an 179 applicant or licensee only during the 6-month1-yearperiod 180 immediately following the date the claim was paid. AuditsAudit181 of incentive payments shallonlybe performed only during the 6 182 monthfor an 18-monthperiod immediately following the date the 183 incentive was paid. As used in this section, the term 184 “incentive” includes any bonus, incentive, or other monetary or 185 nonmonetary thing of value. After such time periods have 186 elapsed, all warranty, maintenance, and other service-related 187 payments and incentive payments shall be deemed final and 188 incontrovertible for any reason notwithstanding any otherwise 189 applicable law, and the motor vehicle dealer shall not be 190 subject to any charge-back or repayment. An applicant or 191 licensee may deny a claim or, as a result of a timely conducted 192 audit, impose a charge-back against a motor vehicle dealer for 193 warranty, maintenance, or other service-related payments or 194 incentive payments only if the applicant or licensee can show 195 that the warranty, maintenance, or other service-related claim 196 or incentive claim was false or fraudulent or that the motor 197 vehicle dealer failed to substantially comply with the 198 reasonable written and uniformly applied procedures of the 199 applicant or licensee for such repairs or incentives, but only 200 for that portion of the claim shown to be false or fraudulent. 201 Notwithstanding the terms of any franchise agreement, guideline, 202 program, policy, or procedure, an applicant or licensee may only 203 deny or charge back that portion of a warranty, maintenance, or 204 other service-related claim or incentive claim which the 205 applicant or licensee has proven to be false or fraudulent or 206 for which the dealer failed to substantially comply with the 207 reasonable, written, and uniformly applied procedures of the 208 applicant or licensee for such repairs or incentives, as set 209 forth in this subsection. An applicant or licensee may not 210 charge back a motor vehicle dealerbacksubsequent to the 211 payment of a warranty, maintenance, or service-related claim or 212 incentive claim unless, within 30 days after a timely conducted 213 audit, a representative of the applicant or licensee first meets 214 in person, by telephone, or by video teleconference with an 215 officer or employee of the dealer designated by the motor 216 vehicle dealer. At such meeting the applicant or licensee must 217 provide a detailed explanation, with supporting documentation, 218 as to the basis for each of the claims for which the applicant 219 or licensee proposed a charge-back to the dealer and a written 220 statement containing the basis upon which the motor vehicle 221 dealer was selected for audit or review. Thereafter, the 222 applicant or licensee must provide the motor vehicle dealer’s 223 representative a reasonable period after the meeting within 224 which to respond to the proposed charge-backs, with such period 225 to be commensurate with the volume of claims under 226 consideration, but in no case less than 45 days after the 227 meeting. The applicant or licensee is prohibited from changing 228 or altering the basis for each of the proposed charge-backs as 229 presented to the motor vehicle dealer’s representative following 230 the conclusion of the audit unless the applicant or licensee 231 receives new information affecting the basis for one or more 232 charge-backs and that new information is received within 30 days 233 after the conclusion of the timely conducted audit. If the 234 applicant or licensee claims the existence of new information, 235 the dealer must be given the same right to a meeting and right 236 to respond as when the charge-back was originally presented. 237 After all internal dispute resolution processes provided through 238 the applicant or licensee have been completed, the applicant or 239 licensee shall give written notice to the motor vehicle dealer 240 of the final amount of its proposed charge-back. If the dealer 241 disputes that amount, the dealer may file a protest with the 242 department within 30 days after receipt of the notice. If a 243 protest is timely filed, the department shall notify the 244 applicant or licensee of the filing of the protest, and the 245 applicant or licensee may not take any action to recover the 246 amount of the proposed charge-back until the department renders 247 a final determination, which is not subject to further appeal, 248 that the charge-back is in compliance with the provisions of 249 this section. In any hearing pursuant to this subsection, the 250 applicant or licensee has the burden of proof that its audit and 251 resulting charge-back are in compliance with this subsection. 252 (26) Notwithstanding the terms of any franchise agreement, 253 including any licensee’s program, policy, or procedure, the 254 applicant or licensee has refused to allocate, sell, or deliver 255 motor vehicles; charged back or withheld payments or other 256 things of value for which the dealer is otherwise eligible under 257 a sales promotion, program, or contest; prevented a motor 258 vehicle dealer from participating in any promotion, program, or 259 contest; or has taken or threatened to take any adverse action 260 against a dealer, including charge-backs, reducing vehicle 261 allocations, or terminating or threatening to terminate a 262 franchise because the dealer sold or leased a motor vehicle to a 263 customer who exported the vehicle to a foreign country or who 264 resold the vehicle, unless the licensee proves that the dealer 265 knew or reasonably should have known that the customer intended 266 to export or resell the motor vehicle. There is a rebuttable 267 presumption that the dealer neither knew nor reasonably should 268 have known of its customer’s intent to export or resell the 269 vehicle if the vehicle is titled or registered in any state in 270 this country. A licensee may not take any action against a motor 271 vehicle dealer, including reducing its allocations or supply of 272 motor vehicles to the dealer, or charging back a dealer for an 273 incentive payment previously paid, unless the licensee first 274 meets in person, by telephone, or video conference with an 275 officer or other designated employee of the dealer. At such 276 meeting, the licensee must provide a detailed explanation, with 277 supporting documentation, as to the basis for its claim that the 278 dealer knew or reasonably should have known of the customer’s 279 intent to export or resell the motor vehicle. Thereafter, the 280 motor vehicle dealer shall have a reasonable period, 281 commensurate with the number of motor vehicles at issue, but not 282 less than 15 days, to respond to the licensee’s claims. If, 283 following the dealer’s response and completion of all internal 284 dispute resolution processes provided through the applicant or 285 licensee, the dispute remains unresolved, the dealer may file a 286 protest with the department within 30 days after receipt of a 287 written notice from the licensee that it still intends to take 288 adverse action against the dealer with respect to the motor 289 vehicles still at issue. If a protest is timely filed, the 290 department shall notify the applicant or licensee of the filing 291 of the protest, and the applicant or licensee may not take any 292 action adverse to the dealer until the department renders a 293 final determination, which is not subject to further appeal, 294 that the licensee’s proposed action is in compliance with the 295 provisions of this subsection. In any hearing pursuant to this 296 subsection, the applicant or licensee has the burden of proof on 297 all issues raised by this subsection. In addition to the 298 requirements, protections, and procedures set forth in this 299 subsection, an applicant or licensee, by agreement, program, 300 rule, policy, standard, or otherwise, may not take adverse 301 action against a motor vehicle dealer, including, without 302 limitation, reducing allocations, product deliveries, or 303 planning volumes, or imposing any penalty or charge-back, 304 because a motor vehicle sold, leased, or delivered to a customer 305 was resold or exported more than 90 days after it was delivered 306 to the customer. If the applicant or licensee does not provide 307 written notification to the motor vehicle dealer of such resale 308 or export within 6 months of the date of the motor vehicle 309 dealer’s delivery of the vehicle to the customer, the motor 310 vehicle dealer is not subject to any adverse action. 311 Notwithstanding the provisions of any franchise agreement, 312 program, policy, or procedure, a motor vehicle dealer’s 313 franchise agreement may not be terminated, canceled, 314 discontinued, or nonrenewed by an applicant or licensee on the 315 basis of any act related to a customer’s exporting or reselling 316 of a motor vehicle, unless the applicant or licensee proves by 317 clear and convincing evidence before a trier of fact that the 318 majority owner, or if there is no majority owner, the person 319 designated as the dealer-principal or a person similarly 320 designated in the franchise agreement, had actual knowledge that 321 the customer intended to export or resell the motor vehicle. 322 (39) Regarding reimbursement for temporary replacement 323 vehicles loaned, rented, or provided by a motor vehicle dealer 324 to or for its service or repair customers, the applicant or 325 licensee has failed to make a payment due a motor vehicle dealer 326 who substantially complied with the terms of the franchise 327 agreement or other contract with the applicant or licensee, 328 notwithstanding that the temporary replacement motor vehicle has 329 been titled or registered to the motor vehicle dealer’s rental 330 or leasing division or an entity that is owned or controlled by 331 the motor vehicle dealer. 332 (40) Notwithstanding the terms of any franchise agreement, 333 the applicant or licensee has done any of the following: 334 (a) Required or coerced, or attempted to require or coerce, 335 a motor vehicle dealer to purchase goods or services from a 336 vendor selected, identified, or designated by an applicant or 337 licensee, or one of its parents, subsidiaries, divisions, or 338 affiliates, by agreement, standard, policy, program, incentive 339 provision, or otherwise, without providing the motor vehicle 340 dealer with the option of obtaining substantially similar goods 341 or services of a like kind and quality from a vendor chosen by 342 the motor vehicle dealer while remaining eligible for all 343 benefits described in such agreement, standard, policy, program, 344 or incentive. For purposes of this subsection, the term “goods” 345 does not include, except for items in paragraph (d), the 346 intellectual property rights of, or special tools and training 347 required by, the applicant or licensee, or replacement parts to 348 be used in repairs under the warranty obligations of an 349 applicant or licensee. 350 (b) Failed to provide written notice to a motor vehicle 351 dealer of the motor vehicle dealer’s rights pursuant to 352 paragraph (a) when requiring the dealer to purchase goods or 353 services from a vendor selected, identified, or designated by 354 the applicant or licensee. 355 (c) Failed to provide to a motor vehicle dealer, when the 356 applicant or licensee claims that a vendor chosen by the motor 357 vehicle dealer cannot supply substantially similar goods and 358 services of like kind and quality pursuant to paragraph (a), a 359 written statement disclosing the identity of the vendor 360 selected, identified, or designated by the applicant or licensee 361 and stating all of the following: 362 1. Whether the applicant or licensee, or any officer, 363 director, or employee of the same, has an equitable or 364 beneficial ownership interest in the vendor and, if so, the 365 percentage of the ownership interest. 366 2. Whether the applicant or licensee has an agreement or 367 arrangement by which the vendor pays to the applicant or 368 licensee, or one of its affiliates or common entities, or any 369 officer, director, or employee of the affiliate or common 370 entity, any compensation and, if so, the basis and amount of the 371 compensation to be paid resulting from such purchases by the 372 motor vehicle dealer or any motor vehicle dealer in the state 373 which has made similar purchases. 374 3. Whether the compensation is to be paid by direct payment 375 by the vendor or by credit from the vendor for the benefit of 376 the recipient. 377 (d) Failed to provide to a motor vehicle dealer, if the 378 goods and services to be supplied to the dealer by a vendor 379 selected, identified, or designated by the applicant or licensee 380 are signs or other image elements to be leased to the motor 381 vehicle dealer, the right to purchase the signs or other image 382 elements of like kind and quality from a vendor selected by the 383 motor vehicle dealer. If the vendor selected by the applicant or 384 licensee is the only available vendor, the motor vehicle dealer 385 must be given the opportunity to purchase, at the time of 386 installation, the signs or other image elements at a price 387 substantially similar to the costs to the applicant or licensee 388 therefor. This paragraph may not be construed as allowing a 389 motor vehicle dealer to erect or maintain signs or registered 390 logos that do not conform to the intellectual property usage 391 guidelines of the applicant or licensee. 392 (41)(a) An applicant or licensee may not, by agreement, 393 policy, program, standard, or otherwise, require a motor vehicle 394 dealer to participate in, contribute to, affiliate with, or join 395 a dealer advertising or marketing group, fund, pool, 396 association, or other entity and may not take or threaten to 397 take any adverse action against a motor vehicle dealer that 398 refuses to join or participate in such group, fund, pool, 399 association, or other entity. For purposes of this subsection, 400 the term “adverse action” includes, without limitation, 401 reduction of allocations, charging fees for a licensee’s or 402 dealer’s advertising or a marketing group’s advertising or 403 marketing, termination of or threatening to terminate the motor 404 vehicle dealer’s franchise, reducing any incentive for which the 405 motor vehicle dealer is eligible, or any action that fails to 406 take into account the interests of the motor vehicle dealer. 407 (b) An applicant or licensee may not require a dealer to 408 participate in, and may not preclude only a portion of its motor 409 vehicle dealers in a designated market area from establishing, a 410 voluntary motor vehicle dealer advertising or marketing group, 411 fund, pool, association, or other entity. 412 (42) The applicant or licensee has failed to act in good 413 faith or deal fairly with one of its motor vehicle dealers in 414 performing, complying with, or enforcing an agreement. An 415 applicant or licensee may have failed to act in good faith or 416 deal fairly with a motor vehicle dealer even in the absence of 417 any act or threat of coercion or intimidation made by the 418 applicant or licensee toward the motor vehicle dealer. An 419 applicant or licensee may have failed to act in good faith or 420 deal fairly with a motor vehicle dealer even in the absence of 421 an allegation by the motor vehicle dealer that an express term 422 or provision of a franchise agreement has been breached or 423 violated by the applicant or licensee. In any cause of action 424 brought under this subsection, the department, or a court of 425 competent jurisdiction, shall consider at least one of the 426 following factors in determining whether an applicant or 427 licensee has failed to act in good faith or deal fairly with a 428 motor vehicle dealer in performing, complying with, or enforcing 429 any of the terms or provisions of any agreement: 430 (a) Whether the applicant or licensee has fairly taken into 431 account the motor vehicle dealer’s investment in its facilities, 432 product or service promotions, staffing, and general operations. 433 (b) Whether the applicant or licensee has fairly taken into 434 account the motor vehicle dealer’s independence in operating the 435 dealership. 436 (c) Whether the applicant or licensee has altered the 437 rights of the motor vehicle dealer, impaired the sales or 438 service obligations of the motor vehicle dealer, or impaired the 439 investment or potential financial return of the motor vehicle 440 dealer. 441 (d) Whether the applicant or licensee has fairly taken into 442 account the equities and interests of the motor vehicle dealer. 443 444 A motor vehicle dealer who can demonstrate that a violation of, 445 or failure to comply with, any of the preceding provisions by an 446 applicant or licensee will or can adversely and pecuniarily 447 affect the complaining dealer, shall be entitled to pursue all 448 of the remedies, procedures, and rights of recovery available 449 under ss. 320.695 and 320.697. 450 Section 2. Subsections (3) and (6) of section 320.641, 451 Florida Statutes, are amended to read: 452 320.641 Discontinuations, cancellations, nonrenewals, 453 modifications, and replacement of franchise agreements.— 454 (3) Any motor vehicle dealer who receives a notice of 455 intent to discontinue, cancel, not renew, modify, or replace 456 may, within the 90-day notice period, file a petition or 457 complaint with the department or, in the alternative, a court of 458 competent jurisdiction, for a determination of whether such 459 action is an unfair or prohibited discontinuation, cancellation, 460 nonrenewal, modification, or replacement. Agreements and 461 certificates of appointment shall continue in effect until final 462 determination of the issues raised in such petition or complaint 463 by the motor vehicle dealer. A discontinuation, cancellation, or 464 nonrenewal of a franchise agreement is unfair if it is not 465 clearly permitted by the franchise agreement; is not undertaken 466 in good faith; is not undertaken for good cause; or is based on 467 an alleged breach of the franchise agreement which is not in 468 fact a material and substantial breach; or, if the grounds 469 relied upon for termination, cancellation, or nonrenewal have 470 not been applied in a uniform and consistent manner by the 471 licensee. If the notice of discontinuation, cancellation, or 472 nonrenewal relates to an alleged failure of the new motor 473 vehicle dealer’s sales or service performance obligations under 474 the franchise agreement, the new motor vehicle dealer must first 475 be provided with at least 180 days to correct the alleged 476 failure before a licensee may send the notice of 477 discontinuation, cancellation, or nonrenewal. A modification or 478 replacement is unfair if it is not clearly permitted by the 479 franchise agreement; is not undertaken in good faith; or is not 480 undertaken for good cause. The applicant or licensee shall have 481 the burden of proof that such action is fair and not prohibited. 482 (6) If the complainant motor vehicle dealer substantially 483 prevails, the motor vehicle dealer hashe or sheshall havea 484 cause of action against the licensee under s. 320.697 and shall 485 be awardedforreasonable attorneyattorneys’fees and costs 486 incurred by the motor vehicle dealerhim or herin such 487 proceeding, and he or she shall have a cause of action under s.488320.697. For purposes of this subsection, a complainant motor 489 vehicle dealer has substantially prevailed if: 490 (a) An administrative or judicial order, declaration, or 491 adjudication of its rights, an enforceable written agreement, or 492 court-approved or administratively approved settlement or 493 consent decree has been issued in its favor; or 494 (b) The complainant’s claim is substantial and an applicant 495 or licensee has voluntarily or unilaterally changed its 496 position, regardless of whether such change is accomplished by a 497 withdrawal of a notice of termination or a proposed modification 498 of an agreement; modification of any notice of discontinuation, 499 cancellation, nonrenewal, or replacement agreement; or any 500 change of pleading. 501 Section 3. Subsection (4) of section 320.642, Florida 502 Statutes, is amended to read: 503 320.642 Dealer licenses in areas previously served; 504 procedure.— 505 (4) An existing franchised motor vehicle dealer with 506 standing to protest the proposed addition or relocation of a 507 motor vehicle dealer pursuant to subsection (3) may file a 508 protest with the department or, in the alternative, in any court 509 of competent jurisdiction. AThe department’sdecision to deny 510 issuance of a license under this section shall remain in effect 511 for a period of 12 months. The department shall not issue a 512 license for the proposed additional or relocated motor vehicle 513 dealer until a final decision not subject to further appealby514the departmentis rendered determining that the application for 515 the motor vehicle dealer’s license should be granted. 516 Section 4. Paragraph (b) of subsection (1), paragraph (a) 517 of subsection (2), and subsection (4) of section 320.643, 518 Florida Statutes, are amended to read: 519 320.643 Transfer, assignment, or sale of franchise 520 agreements.— 521 (1) 522 (b) A motor vehicle dealer whose proposed sale is rejected 523 may, within 60 days following such receipt of such rejection, 524 file with the department or, in the alternative, in any court of 525 competent jurisdiction a complaint for a determination that the 526 proposed transferee has been rejected in violation of this 527 section. The licensee has the burden of proof with respect to 528 all issues raised by the complaint. The department or court 529 shall determine, and enter an order providing, that the proposed 530 transferee is either qualified or is not and cannot be qualified 531 for specified reasons, or the order may provide the conditions 532 under which a proposed transferee would be qualified. If the 533 licensee fails to file such a response to the motor vehicle 534 dealer’s complaint within 30 days after receipt of the 535 complaint, unless the parties agree in writing to an extension, 536 or if the department or court, after a hearing, renders a 537 decision other than one disqualifying the proposed transferee, 538 the franchise agreement between the motor vehicle dealer and the 539 licensee is deemed amended to incorporate such transfer or 540 amended in accordance with the determination and order rendered, 541 effective upon compliance by the proposed transferee with any 542 conditions set forth in the determination or order. 543 (2)(a) Notwithstanding the terms of any franchise 544 agreement, a licensee shall not, by contract or otherwise, fail 545 or refuse to give effect to, prevent, prohibit, or penalize, or 546 attempt to refuse to give effect to, prevent, prohibit, or 547 penalize, any motor vehicle dealer or any proprietor, partner, 548 stockholder, owner, or other person who holds or otherwise owns 549 an interest therein from selling, assigning, transferring, 550 alienating, or otherwise disposing of, in whole or in part, the 551 equity interest of any of them in such motor vehicle dealer to 552 any other person or persons, including a corporation established 553 or existing for the purpose of owning or holding the stock or 554 ownership interests of other entities, unless the licensee 555 proves at a hearing pursuant to a complaint filed by a motor 556 vehicle dealer under this section that the sale, transfer, 557 alienation, or other disposition is to a person who is not, or 558 whose controlling executive management is not, of good moral 559 character. A motor vehicle dealer, or any proprietor, partner, 560 stockholder, owner, or other person who holds or otherwise owns 561 an interest in the motor vehicle dealer, who desires to sell, 562 assign, transfer, alienate, or otherwise dispose of any interest 563 in such motor vehicle dealer shall notify, or cause the proposed 564 transferee to so notify, the licensee, in writing, of the 565 identity and address of the proposed transferee. A licensee who 566 receives such notice may, within 60 days following such receipt, 567 notify the motor vehicle dealer in writing that the proposed 568 transferee is not a person qualified to be a transferee under 569 this section and setting forth the material reasons for such 570 rejection. Failure of the licensee to notify the motor vehicle 571 dealer within the 60-day period of such rejection shall be 572 deemed an approval of the transfer. Any person whose proposed 573 sale of stock is rejected may file within 60 days of receipt of 574 such rejection a complaint with the department or, in the 575 alternative, in any court of competent jurisdiction alleging 576 that the rejection was in violation of the law or the franchise 577 agreement. The licensee has the burden of proof with respect to 578 all issues raised by such complaint. The department or court 579 shall determine, and enter an order providing, that the proposed 580 transferee either is qualified or is not and cannot be qualified 581 for specified reasons; or the order may provide the conditions 582 under which a proposed transferee would be qualified. If the 583 licensee fails to file a response to the motor vehicle dealer’s 584 complaint within 30 days of receipt of the complaint, unless the 585 parties agree in writing to an extension, or if the department 586 or court, after a hearing, renders a decision on the complaint 587 other than one disqualifying the proposed transferee, the 588 transfer shall be deemed approved in accordance with the 589 determination and order rendered, effective upon compliance by 590 the proposed transferee with any conditions set forth in the 591 determination or order. 592 (4) During the pendency of any such hearing, the franchise 593 agreement of the motor vehicle dealer shall continue in effect 594 in accordance with its terms. The department or court shall 595 expedite any determination requested under this section. 596 Section 5. Section 320.69913, Florida Statutes, is created 597 to read: 598 320.69913 Alternative civil cause of action; procedure.—Any 599 motor vehicle dealer that is directly and adversely affected by 600 the action or conduct of an applicant or licensee, and which 601 action or conduct is alleged to be in violation of any provision 602 of ss. 320.60-320.70, in addition to any right, remedy, or 603 procedure expressly provided in ss. 320.60-320.70, has a cause 604 of action in any court of competent jurisdiction against the 605 applicant or licensee for legal, equitable, or declaratory 606 relief, or an adjudication of the motor vehicle dealer’s rights 607 with respect to the alleged action or conduct of the applicant 608 or licensee, in which case the court shall hear and determine 609 all matters arising under ss. 320.60-320.70. 610 Section 6. This act shall take effect upon becoming a law.