Bill Text: FL S1678 | 2017 | Regular Session | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Motor Vehicle Applicants, Licensees, and Dealers
Spectrum:
Status: (Introduced - Dead) 2017-05-03 - Laid on Table, companion bill(s) passed, see CS/CS/HB 1175 (Ch. 2017-187) [S1678 Detail]
Download: Florida-2017-S1678-Introduced.html
Bill Title: Motor Vehicle Applicants, Licensees, and Dealers
Spectrum:
Status: (Introduced - Dead) 2017-05-03 - Laid on Table, companion bill(s) passed, see CS/CS/HB 1175 (Ch. 2017-187) [S1678 Detail]
Download: Florida-2017-S1678-Introduced.html
Florida Senate - 2017 SB 1678 By Senator Garcia 36-00976C-17 20171678__ 1 A bill to be entitled 2 An act relating to motor vehicle dealers; amending s. 3 320.64, F.S.; providing an exception to the 4 requirement that a specified provision does not affect 5 certain contracts between a licensee and any of its 6 dealers; providing that a motor vehicle dealer who 7 completes certain approved construction or changes to 8 or installation on the dealer’s facility in reliance 9 upon a certain program, standard, or policy, or bonus, 10 incentive, rebate, or other benefit is deemed to be in 11 full compliance with all of an applicant’s or 12 licensee’s requirements related to the facility, sign, 13 and image for a specified period; providing that a 14 motor vehicle dealer that completed a facility in 15 reliance upon a prior program, standard, or policy, 16 bonus, incentive, rebate or other benefit, but elects 17 not to comply with the provisions related to facility, 18 sign, or image under a changed or new program, 19 standard, policy, or other offer is not eligible for 20 the new benefits but shall remain entitled to all 21 prior benefits plus any increase in the benefits 22 between the prior and the new or amended program, 23 standard, policy, or offers for the remainder of the 24 specified period; providing for construction; 25 prohibiting the applicant or licensee from failing to 26 act in good faith toward or deal fairly with one of 27 its franchised motor vehicle dealers in an agreement; 28 specifying when an applicant or licensee may have 29 failed to act in good faith or deal fairly with a 30 motor vehicle dealer; requiring the Department of 31 Highway Safety and Motor Vehicles or a court to 32 consider, in certain actions, specified factors in 33 determining whether an applicant or licensee has 34 failed to act in good faith toward, or deal fairly 35 with, a motor vehicle dealer under certain 36 circumstances; providing that an affirmative 37 determination to one or more of such factors is 38 sufficient to sustain a finding of failure to act in 39 good faith or deal fairly with a motor vehicle dealer; 40 prohibiting an applicant or licensee from 41 establishing, implementing, or enforcing criteria for 42 measuring the sales or service performance of any of 43 its franchised motor vehicle dealers in this state 44 under certain circumstances; providing that relevant 45 and material national or state criteria or data may be 46 considered; prohibiting comparison to such data to 47 outweigh applicable local and regional factors and 48 data; defining the term “relevant and material”; 49 requiring a survey to be based upon a statistically 50 significant and valid random sample if certain 51 measurement is based, in whole or in part, upon such 52 survey; requiring an applicant, licensee, common 53 entity, or affiliate thereof that seeks to establish, 54 implement, or enforce against any dealer a performance 55 measurement to describe in writing to the motor 56 vehicle dealer, upon the dealer’s request, how the 57 measurement criteria about the dealer’s sales and 58 service performance was designed, calculated, 59 established, and applied; providing that any dealer 60 against whom any such performance measurement criteria 61 is sought to be used for any purpose adverse to the 62 dealer has the right to file a complaint in court 63 alleging that such performance criteria does not 64 comply with specified provisions; providing for 65 damages, attorney fees, and injunctive relief under 66 certain circumstances; requiring the applicant or 67 licensee to bear the ultimate burden of proof that the 68 dealer performance measurement criteria complies with 69 specified provisions and has been implemented and 70 enforced uniformly by the applicant or licensee among 71 its dealers in this state; adding certain remedies, 72 procedures, and rights of recovery a motor vehicle 73 dealer is entitled to pursue under certain 74 circumstances; creating s. 320.648, F.S.; prohibiting 75 an applicant or licensee from taking specified actions 76 for the purpose of avoiding competitive disadvantages 77 of a motor vehicle dealer and eliminating 78 discrimination against a motor vehicle dealer under 79 certain circumstances; providing applicability; 80 providing for construction; amending s. 320.699, F.S.; 81 authorizing a motor vehicle dealer or certain persons 82 to seek a declaration and adjudication of rights under 83 certain circumstances with respect to certain actions 84 of an applicant or licensee by filing a complaint in 85 court for injunctive relief and damages; requiring, 86 after a certain prima facie showing, the burden of 87 proof of all issues to be upon the applicant or 88 licensee to prove that a certain violation did not or 89 will not occur; authorizing a court to issue 90 injunctive relief and award costs and reasonable 91 attorney fees to the complainant if relief is granted; 92 providing an effective date. 93 94 Be It Enacted by the Legislature of the State of Florida: 95 96 Section 1. Section 320.64, Florida Statutes, is amended to 97 read: 98 320.64 Denial, suspension, or revocation of license; 99 grounds.—A license of a licensee under s. 320.61 may be denied, 100 suspended, or revoked within the entire state or at any specific 101 location or locations within the state at which the applicant or 102 licensee engages or proposes to engage in business, upon proof 103 that the section was violated with sufficient frequency to 104 establish a pattern of wrongdoing, and a licensee or applicant 105 shall be liable for claims and remedies provided in ss. 320.695 106 and 320.697 for any violation of any of the following 107 provisions. A licensee is prohibited from committing the 108 following acts: 109 (1) The applicant or licensee is determined to be unable to 110 carry out contractual obligations with its motor vehicle 111 dealers. 112 (2) The applicant or licensee has knowingly made a material 113 misstatement in its application for a license. 114 (3) The applicant or licensee willfully has failed to 115 comply with significant provisions of ss. 320.60-320.70 or with 116 any lawful rule or regulation adopted or promulgated by the 117 department. 118 (4) The applicant or licensee has indulged in any illegal 119 act relating to his or her business. 120 (5) The applicant or licensee has coerced or attempted to 121 coerce any motor vehicle dealer into accepting delivery of any 122 motor vehicle or vehicles or parts or accessories therefor or 123 any other commodities which have not been ordered by the dealer. 124 (6) The applicant or licensee has coerced or attempted to 125 coerce any motor vehicle dealer to enter into any agreement with 126 the licensee. 127 (7) The applicant or licensee has threatened to 128 discontinue, cancel, or not to renew a franchise agreement of a 129 licensed motor vehicle dealer, where the threatened 130 discontinuation, cancellation, or nonrenewal, if implemented, 131 would be in violation of any of the provisions of s. 320.641. 132 (8) The applicant or licensee discontinued, canceled, or 133 failed to renew, a franchise agreement of a licensed motor 134 vehicle dealer in violation of any of the provisions of s. 135 320.641. 136 (9) The applicant or licensee has threatened to modify or 137 replace, or has modified or replaced, a franchise agreement with 138 a succeeding franchise agreement which would adversely alter the 139 rights or obligations of a motor vehicle dealer under an 140 existing franchise agreement or which substantially impairs the 141 sales, service obligations, or investment of the motor vehicle 142 dealer. 143 (10)(a) The applicant or licensee has attempted to enter, 144 or has entered, into a franchise agreement with a motor vehicle 145 dealer who does not, at the time of the franchise agreement, 146 have proper facilities to provide the services to his or her 147 purchasers of new motor vehicles which are covered by the new 148 motor vehicle warranty issued by the applicant or licensee. 149 (b) Notwithstanding any provision of a franchise, a 150 licensee may not require a motor vehicle dealer, by agreement, 151 program, policy, standard, or otherwise, to make substantial 152 changes, alterations, or remodeling to, or to replace a motor 153 vehicle dealer’s sales or service facilities unless the 154 licensee’s requirements are reasonable and justifiable in light 155 of the current and reasonably foreseeable projections of 156 economic conditions, financial expectations, and the motor 157 vehicle dealer’s market for the licensee’s motor vehicles. 158 (c) A licensee may, however, consistent with the licensee’s 159 allocation obligations at law and to its other same line-make 160 motor vehicle dealers, provide to a motor vehicle dealer a 161 commitment to supply additional vehicles or provide a loan or 162 grant of money as an inducement for the motor vehicle dealer to 163 expand, improve, remodel, alter, or renovate its facilities if 164 the provisions of the commitment are contained in a writing 165 voluntarily agreed to by the dealer and are made available, on 166 substantially similar terms, to any of the licensee’s other same 167 line-make dealers in this state who voluntarily agree to make a 168 substantially similar facility expansion, improvement, 169 remodeling, alteration, or renovation. 170 (d) Except as provided in paragraph (c), subsection (36), 171 or as otherwise provided by law, this subsection does not 172 require a licensee to provide financial support for, or 173 contribution to, the purchase or sale of the assets of or equity 174 in a motor vehicle dealer or a relocation of a motor vehicle 175 dealer because such support has been provided to other 176 purchases, sales, or relocations. 177 (e) A licensee or its common entity may not take or 178 threaten to take any action that is unfair or adverse to a 179 dealer who does not enter into an agreement with the licensee 180 pursuant to paragraph (c). 181 (f) Except as provided in s. 320.6992, this subsection does 182 not affect any contract between a licensee and any of its 183 dealers regarding relocation, expansion, improvement, 184 remodeling, renovation, or alteration which exists on the 185 effective date of this act. 186 (g) A licensee may set and uniformly apply reasonable 187 standards for a motor vehicle dealer’s sales and service 188 facilities which are related to upkeep, repair, and cleanliness. 189 (h) A violation of paragraphs (b) through (g) is not a 190 violation of s. 320.70 and does not subject any licensee to any 191 criminal penalty under s. 320.70. 192 (i) If an applicant or licensee establishes a program, 193 standard, or policy or in any manner offers a bonus, incentive, 194 rebate, or other benefit to a motor vehicle dealer in this state 195 which is premised, wholly or in part, on dealer facility 196 construction, improvements, renovations, expansions, remodeling, 197 or alterations or installation of signs or other image elements, 198 a motor vehicle dealer who completes any such approved 199 construction or change to or installation on the dealer’s 200 facility in reliance upon such program, standard, or policy, or 201 bonus, incentive, rebate, or other benefit is deemed to be in 202 full compliance with all of the applicant’s or licensee’s 203 requirements related to the facility, sign, and image for a 204 period of 10 years following such completion. If, during the 10 205 year period, the applicant or licensee changes or offers a new 206 program, standard, or policy, or bonus, incentive, rebate, or 207 other benefit related to relocation or remodeling, improvements, 208 alterations, renovations, or replacement of the existing 209 completed sales or service facilities, a motor vehicle dealer 210 that completed a facility in reliance upon a prior program, 211 standard, or policy, bonus, incentive, rebate, or other benefit, 212 but elects not to comply with the provisions related to 213 facility, sign, or image under the changed or new program, 214 standard, policy, or other offer is not eligible for the new 215 benefits but shall remain entitled to all prior benefits plus 216 any increase in the benefits between the prior and the new or 217 amended program, standard, policy, or offers for the remainder 218 of the 10-year period. This paragraph does not obviate, affect, 219 or alter any provision of subsection (38). 220 (11) The applicant or licensee has coerced a motor vehicle 221 dealer to provide installment financing for the motor vehicle 222 dealer’s purchasers with a specified financial institution. 223 (12) The applicant or licensee has advertised, printed, 224 displayed, published, distributed, broadcast, or televised, or 225 caused or permitted to be advertised, printed, displayed, 226 published, distributed, broadcast, or televised, in any manner 227 whatsoever, any statement or representation with regard to the 228 sale or financing of motor vehicles which is false, deceptive, 229 or misleading. 230 (13) The applicant or licensee has sold, exchanged, or 231 rented a motorcycle thatwhichproduces in excess of 5 brake 232 horsepower, knowing the use thereof to be by, or intended for, 233 the holder of a restricted Florida driver license. 234 (14) The applicant or licensee has engaged in previous 235 conduct thatwhichwould have been a ground for revocation or 236 suspension of a license if the applicant or licensee had been 237 licensed. 238 (15) The applicant or licensee, directly or indirectly, 239 through the actions of any parent of the licensee, subsidiary of 240 the licensee, or common entity causes a termination, 241 cancellation, or nonrenewal of a franchise agreement by a 242 present or previous distributor or importer unless, by the 243 effective date of such action, the applicant or licensee offers 244 the motor vehicle dealer whose franchise agreement is 245 terminated, canceled, or not renewed a franchise agreement 246 containing substantially the same provisions contained in the 247 previous franchise agreement or files an affidavit with the 248 department acknowledging its undertaking to assume and fulfill 249 the rights, duties, and obligations of its predecessor 250 distributor or importer under the terminated, canceled, or 251 nonrenewed franchise agreement and the same is reinstated. 252 (16) Notwithstanding the terms of any franchise agreement, 253 the applicant or licensee prevents or refuses to accept the 254 succession to any interest in a franchise agreement by any legal 255 heir or devisee under the will of a motor vehicle dealer or 256 under the laws of descent and distribution of this state; 257 provided, the applicant or licensee is not required to accept a 258 succession where such heir or devisee does not meet licensee’s 259 written, reasonable, and uniformly applied minimal standard 260 qualifications for dealer applicants or which, after notice and 261 administrative hearing pursuant to chapter 120, is demonstrated 262 to be detrimental to the public interest or to the 263 representation of the applicant or licensee. Nothing contained 264 herein, however, shall prevent a motor vehicle dealer, during 265 his or her lifetime, from designating any person as his or her 266 successor in interest by written instrument filed with and 267 accepted by the applicant or licensee. A licensee who rejects 268 the successor transferee under this subsection shall have the 269 burden of establishing in any proceeding where such rejection is 270 in issue that the rejection of the successor transferee complies 271 with this subsection. 272 (17) The applicant or licensee has included in any 273 franchise agreement with a motor vehicle dealer terms or 274 provisions that are contrary to, prohibited by, or otherwise 275 inconsistent with the provisions contained in ss. 320.60-320.70, 276 or has failed to include in such franchise agreement a provision 277 conforming to the requirements of s. 320.63(3). 278 (18) The applicant or licensee has established a system of 279 motor vehicle allocation or distribution or has implemented a 280 system of allocation or distribution of motor vehicles to one or 281 more of its franchised motor vehicle dealers which reduces or 282 alters allocations or supplies of new motor vehicles to the 283 dealer to achieve, directly or indirectly, a purpose that is 284 prohibited by ss. 320.60-320.70, or which otherwise is unfair, 285 inequitable, unreasonably discriminatory, or not supportable by 286 reason and good cause after considering the equities of the 287 affected motor vehicles dealer or dealers. An applicant or 288 licensee shall maintain for 3 years records that describe its 289 methods or formula of allocation and distribution of its motor 290 vehicles and records of its actual allocation and distribution 291 of motor vehicles to its motor vehicle dealers in this state. As 292 used in this subsection, “unfair” includes, without limitation, 293 the refusal or failure to offer to any dealer an equitable 294 supply of new vehicles under its franchise, by model, mix, or 295 colors as the licensee offers or allocates to its other same 296 line-make dealers in the state. 297 (19) The applicant or licensee, without good and fair 298 cause, has delayed, refused, or failed to provide a supply of 299 motor vehicles by series in reasonable quantities, including the 300 models publicly advertised by the applicant or licensee as being 301 available, or has delayed, refused, or failed to deliver motor 302 vehicle parts and accessories within a reasonable time after 303 receipt of an order by a franchised dealer. However, this 304 subsection is not violated if such failure is caused by acts or 305 causes beyond the control of the applicant or licensee. 306 (20) The applicant or licensee has required, or threatened 307 to require, a motor vehicle dealer to prospectively assent to a 308 release, assignment, novation, waiver, or estoppel, which 309 instrument or document operates, or is intended by the applicant 310 or licensee to operate, to relieve any person from any liability 311 or obligation under the provisions of ss. 320.60-320.70. 312 (21) The applicant or licensee has threatened or coerced a 313 motor vehicle dealer toward conduct or action whereby the dealer 314 would waive or forego its right to protest the establishment or 315 relocation of a motor vehicle dealer in the community or 316 territory serviced by the threatened or coerced dealer. 317 (22) The applicant or licensee has refused to deliver, in 318 reasonable quantities and within a reasonable time, to any duly 319 licensed motor vehicle dealer who has an agreement with such 320 applicant or licensee for the retail sale of new motor vehicles 321 and parts for motor vehicles sold or distributed by the 322 applicant or licensee, any such motor vehicles or parts as are 323 covered by such agreement. Such refusal includes the failure to 324 offer to its same line-make franchised motor vehicle dealers all 325 models manufactured for that line-make, or requiring a dealer to 326 pay any extra fee, require a dealer to execute a separate 327 franchise agreement, purchase unreasonable advertising displays 328 or other materials, or relocate, expand, improve, remodel, 329 renovate, recondition, or alter the dealer’s existing 330 facilities, or provide exclusive facilities as a prerequisite to 331 receiving a model or series of vehicles. However, the failure to 332 deliver any motor vehicle or part will not be considered a 333 violation of this section if the failure is due to an act of 334 God, work stoppage, or delay due to a strike or labor 335 difficulty, a freight embargo, product shortage, or other cause 336 over which the applicant or licensee has no control. An 337 applicant or licensee may impose reasonable requirements on the 338 motor vehicle dealer, other than the items listed above, 339 including, but not limited to, the purchase of special tools 340 required to properly service a motor vehicle and the undertaking 341 of sales person or service person training related to the motor 342 vehicle. 343 (23) The applicant or licensee has competed or is competing 344 with respect to any activity covered by the franchise agreement 345 with a motor vehicle dealer of the same line-make located in 346 this state with whom the applicant or licensee has entered into 347 a franchise agreement, except as permitted in s. 320.645. 348 (24) The applicant or licensee has sold a motor vehicle to 349 any retail consumer in the state except through a motor vehicle 350 dealer holding a franchise agreement for the line-make that 351 includes the motor vehicle. This section does not apply to sales 352 by the applicant or licensee of motor vehicles to its current 353 employees, employees of companies affiliated by common 354 ownership, charitable not-for-profit-organizations, and the 355 federal government. 356 (25) The applicant or licensee has undertaken or engaged in 357 an audit of warranty, maintenance, and other service-related 358 payments or incentive payments, including payments to a motor 359 vehicle dealer under any licensee-issued program, policy, or 360 other benefit, which were previously paid to a motor vehicle 361 dealer in violation of this section or has failed to comply with 362 any of its obligations under s. 320.696. An applicant or 363 licensee may reasonably and periodically audit a motor vehicle 364 dealer to determine the validity of paid claims as provided in 365 s. 320.696. Audits of warranty, maintenance, and other service 366 related payments shall be performed by an applicant or licensee 367 only during the 12-month period immediately following the date 368 the claim was paid. Audits of incentive payments shall be 369 performed only during the 12-month period immediately following 370 the date the incentive was paid. As used in this section, the 371 term “incentive” includes any bonus, incentive, or other 372 monetary or nonmonetary consideration. After such time periods 373 have elapsed, all warranty, maintenance, and other service 374 related payments and incentive payments shall be deemed final 375 and incontrovertible for any reason notwithstanding any 376 otherwise applicable law, and the motor vehicle dealer shall not 377 be subject to any chargeback or repayment. An applicant or 378 licensee may deny a claim or, as a result of a timely conducted 379 audit, impose a chargeback against a motor vehicle dealer for 380 warranty, maintenance, or other service-related payments or 381 incentive payments only if the applicant or licensee can show 382 that the warranty, maintenance, or other service-related claim 383 or incentive claim was false or fraudulent or that the motor 384 vehicle dealer failed to substantially comply with the 385 reasonable written and uniformly applied procedures of the 386 applicant or licensee for such repairs or incentives, but only 387 for that portion of the claim so shown. Notwithstanding the 388 terms of any franchise agreement, guideline, program, policy, or 389 procedure, an applicant or licensee may deny or charge back only 390 that portion of a warranty, maintenance, or other service 391 related claim or incentive claim which the applicant or licensee 392 has proven to be false or fraudulent or for which the dealer 393 failed to substantially comply with the reasonable written and 394 uniformly applied procedures of the applicant or licensee for 395 such repairs or incentives, as set forth in this subsection. An 396 applicant or licensee may not charge back a motor vehicle dealer 397 subsequent to the payment of a warranty, maintenance, or 398 service-related claim or incentive claim unless, within 30 days 399 after a timely conducted audit, a representative of the 400 applicant or licensee first meets in person, by telephone, or by 401 video teleconference with an officer or employee of the dealer 402 designated by the motor vehicle dealer. At such meeting the 403 applicant or licensee must provide a detailed explanation, with 404 supporting documentation, as to the basis for each of the claims 405 for which the applicant or licensee proposed a chargeback to the 406 dealer and a written statement containing the basis upon which 407 the motor vehicle dealer was selected for audit or review. 408 Thereafter, the applicant or licensee must provide the motor 409 vehicle dealer’s representative a reasonable period after the 410 meeting within which to respond to the proposed chargebacks, 411 with such period to be commensurate with the volume of claims 412 under consideration, but in no case less than 45 days after the 413 meeting. The applicant or licensee is prohibited from changing 414 or altering the basis for each of the proposed chargebacks as 415 presented to the motor vehicle dealer’s representative following 416 the conclusion of the audit unless the applicant or licensee 417 receives new information affecting the basis for one or more 418 chargebacks and that new information is received within 30 days 419 after the conclusion of the timely conducted audit. If the 420 applicant or licensee claims the existence of new information, 421 the dealer must be given the same right to a meeting and right 422 to respond as when the chargeback was originally presented. 423 After all internal dispute resolution processes provided through 424 the applicant or licensee have been completed, the applicant or 425 licensee shall give written notice to the motor vehicle dealer 426 of the final amount of its proposed chargeback. If the dealer 427 disputes that amount, the dealer may file a protest with the 428 department within 30 days after receipt of the notice. If a 429 protest is timely filed, the department shall notify the 430 applicant or licensee of the filing of the protest, and the 431 applicant or licensee may not take any action to recover the 432 amount of the proposed chargeback until the department renders a 433 final determination, which is not subject to further appeal, 434 that the chargeback is in compliance with the provisions of this 435 section. In any hearing pursuant to this subsection, the 436 applicant or licensee has the burden of proof that its audit and 437 resulting chargeback are in compliance with this subsection. 438 (26) Notwithstanding the terms of any franchise agreement, 439 including any licensee’s program, policy, or procedure, the 440 applicant or licensee has refused to allocate, sell, or deliver 441 motor vehicles; charged back or withheld payments or other 442 things of value for which the dealer is otherwise eligible under 443 a sales promotion, program, or contest; prevented a motor 444 vehicle dealer from participating in any promotion, program, or 445 contest; or has taken or threatened to take any adverse action 446 against a dealer, including chargebacks, reducing vehicle 447 allocations, or terminating or threatening to terminate a 448 franchise because the dealer sold or leased a motor vehicle to a 449 customer who exported the vehicle to a foreign country or who 450 resold the vehicle, unless the licensee proves that the dealer 451 knew or reasonably should have known that the customer intended 452 to export or resell the motor vehicle. There is a rebuttable 453 presumption that the dealer neither knew nor reasonably should 454 have known of its customer’s intent to export or resell the 455 vehicle if the vehicle is titled or registered in any state in 456 this country. A licensee may not take any action against a motor 457 vehicle dealer, including reducing its allocations or supply of 458 motor vehicles to the dealer or charging back to a dealer any 459 incentive payment previously paid, unless the licensee first 460 meets in person, by telephone, or video conference with an 461 officer or other designated employee of the dealer. At such 462 meeting, the licensee must provide a detailed explanation, with 463 supporting documentation, as to the basis for its claim that the 464 dealer knew or reasonably should have known of the customer’s 465 intent to export or resell the motor vehicle. Thereafter, the 466 motor vehicle dealer shall have a reasonable period, 467 commensurate with the number of motor vehicles at issue, but not 468 less than 15 days, to respond to the licensee’s claims. If, 469 following the dealer’s response and completion of all internal 470 dispute resolution processes provided through the applicant or 471 licensee, the dispute remains unresolved, the dealer may file a 472 protest with the department within 30 days after receipt of a 473 written notice from the licensee that it still intends to take 474 adverse action against the dealer with respect to the motor 475 vehicles still at issue. If a protest is timely filed, the 476 department shall notify the applicant or licensee of the filing 477 of the protest, and the applicant or licensee may not take any 478 action adverse to the dealer until the department renders a 479 final determination, which is not subject to further appeal, 480 that the licensee’s proposed action is in compliance with the 481 provisions of this subsection. In any hearing pursuant to this 482 subsection, the applicant or licensee has the burden of proof on 483 all issues raised by this subsection. An applicant or licensee 484 may not take any adverse action against a motor vehicle dealer 485 because the dealer sold or leased a motor vehicle to a customer 486 who exported the vehicle to a foreign country or who resold the 487 vehicle unless the applicant or licensee provides written 488 notification to the motor vehicle dealer of such resale or 489 export within 12 months after the date the dealer sold or leased 490 the vehicle to the customer. 491 (27) Notwithstanding the terms of any franchise agreement, 492 the applicant or licensee has failed or refused to indemnify and 493 hold harmless any motor vehicle dealer against any judgment for 494 damages, or settlements agreed to by the applicant or licensee, 495 including, without limitation, court costs and reasonable 496 attorneyattorneysfees, arising out of complaints, claims, or 497 lawsuits, including, without limitation, strict liability, 498 negligence, misrepresentation, express or implied warranty, or 499 revocation or rescission of acceptance of the sale of a motor 500 vehicle, to the extent the judgment or settlement relates to the 501 alleged negligent manufacture, design, or assembly of motor 502 vehicles, parts, or accessories. Nothing herein shall obviate 503 the licensee’s obligations pursuant to chapter 681. 504 (28) The applicant or licensee has published, disclosed, or 505 otherwise made available in any form information provided by a 506 motor vehicle dealer with respect to sales prices of motor 507 vehicles or profit per motor vehicle sold. Other confidential 508 financial information provided by motor vehicle dealers shall 509 not be published, disclosed, or otherwise made publicly 510 available except in composite form. However, this information 511 may be disclosed with the written consent of the dealer or in 512 response to a subpoena or order of the department, a court or a 513 lawful tribunal, or introduced into evidence in such a 514 proceeding, after timely notice to an affected dealer. 515 (29) The applicant or licensee has failed to reimburse a 516 motor vehicle dealer in full for the reasonable cost of 517 providing a loaner vehicle to any customer who is having a 518 vehicle serviced at the motor vehicle dealer, if a loaner is 519 required by the applicant or licensee, or a loaner is expressly 520 part of an applicant or licensee’s customer satisfaction index 521 or computation. 522 (30) The applicant or licensee has conducted or threatened 523 to conduct any audit of a motor vehicle dealer in order to 524 coerce or attempt to coerce the dealer to forego any rights 525 granted to the dealer under ss. 320.60-320.70 or under the 526 agreement between the licensee and the motor vehicle dealer. 527 Nothing in this section shall prohibit an applicant or licensee 528 from reasonably and periodically auditing a dealer to determine 529 the validity of paid claims, as permitted under this chapter, if 530 the licensee complies with the provisions of ss. 320.60-320.70 531 applicable to such audits. 532 (31) From and after the effective date of enactment of this 533 provision, the applicant or licensee has offered to any motor 534 vehicle dealer a franchise agreement that: 535 (a) Requires that a motor vehicle dealer bring an 536 administrative or legal action in a venue outside of this state; 537 (b) Requires that any arbitration, mediation, or other 538 legal proceeding be conducted outside of this state; or 539 (c) Requires that a law of a state other than Florida be 540 applied to any legal proceeding between a motor vehicle dealer 541 and a licensee. 542 (32) Notwithstanding the terms of any franchise agreement, 543 the applicant or licensee has rejected or withheld approval of 544 any proposed transfer in violation of s. 320.643 or a proposed 545 change of executive management in violation of s. 320.644. 546 (33) The applicant or licensee has attempted to sell or 547 lease, or has sold or leased, used motor vehicles at retail of a 548 line-make that is the subject of any franchise agreement with a 549 motor vehicle dealer in this state, other than trucks with a net 550 weight of more than 8,000 pounds. 551 (34) The applicant or licensee, after the effective date of 552 this subsection, has included in any franchise agreement with a 553 motor vehicle dealer a mandatory obligation or requirement of 554 the motor vehicle dealer to purchase, sell, or lease, or offer 555 for purchase, sale, or lease, any quantity of used motor 556 vehicles. 557 (35) The applicant or licensee has refused to assign 558 allocation earned by a motor vehicle dealer, or has refused to 559 sell motor vehicles to a motor vehicle dealer, because the motor 560 vehicle dealer has failed or refused to purchase, sell, lease, 561 or certify a certain quantity of used motor vehicles prescribed 562 by the licensee. 563 (36)(a) Notwithstanding the terms of any franchise 564 agreement, in addition to any other statutory or contractual 565 rights of recovery after the voluntary or involuntary 566 termination, cancellation, or nonrenewal of a franchise, failing 567 to pay the motor vehicle dealer, as provided in paragraph (d), 568 the following amounts: 569 1. The net cost paid by the dealer for each new car or 570 truck in the dealer’s inventory with mileage of 2,000 miles or 571 less, or a motorcycle with mileage of 100 miles or less, 572 exclusive of mileage placed on the vehicle before it was 573 delivered to the dealer. 574 2. The current price charged for each new, unused, 575 undamaged, or unsold part or accessory that: 576 a. Is in the current parts catalogue and is still in the 577 original, resalable merchandising package and in an unbroken 578 lot, except that sheet metal may be in a comparable substitute 579 for the original package; and 580 b. Was purchased by the dealer directly from the 581 manufacturer or distributor or from an outgoing authorized 582 dealer as a part of the dealer’s initial inventory. 583 3. The fair market value of each undamaged sign owned by 584 the dealer which bears a trademark or trade name used or claimed 585 by the applicant or licensee or its representative which was 586 purchased from or at the request of the applicant or licensee or 587 its representative. 588 4. The fair market value of all special tools, data 589 processing equipment, and automotive service equipment owned by 590 the dealer which: 591 a. Were recommended in writing by the applicant or licensee 592 or its representative and designated as special tools and 593 equipment; 594 b. Were purchased from or at the request of the applicant 595 or licensee or its representative; and 596 c. Are in usable and good condition except for reasonable 597 wear and tear. 598 5. The cost of transporting, handling, packing, storing, 599 and loading any property subject to repurchase under this 600 section. 601 (b) If the termination, cancellation, or nonrenewal of the 602 dealer’s franchise is the result of the bankruptcy or 603 reorganization of a licensee or its common entity, or the result 604 of a licensee’s plan, scheme, or policy, whether or not publicly 605 declared, which is intended to or has the effect of decreasing 606 the number of, or eliminating, the licensee’s franchised motor 607 vehicle dealers of a line-make in this state, or the result of a 608 termination, elimination, or cessation of manufacture or 609 reorganization of a licensee or its common entity, or the result 610 of a termination, elimination, or cessation of manufacture or 611 distribution of a line-make, in addition to the above payments 612 to the dealer, the licensee or its common entity, shall be 613 liable to and shall pay the motor vehicle dealer for an amount 614 at least equal to the fair market value of the franchise for the 615 line-make, which shall be the greater of the value determined as 616 of the day the licensee announces the action that results in the 617 termination, cancellation, or nonrenewal, or the value 618 determined on the day that is 12 months before that date. Fair 619 market value of the franchise for the line-make includes only 620 the goodwill value of the dealer’s franchise for that line-make 621 in the dealer’s community or territory. 622 (c) This subsection does not apply to a termination, 623 cancellation, or nonrenewal that is implemented as a result of 624 the sale of the assets or corporate stock or other ownership 625 interests of the dealer. 626 (d) The dealer shall return the property listed in this 627 subsection to the licensee within 90 days after the effective 628 date of the termination, cancellation, or nonrenewal. The 629 licensee shall supply the dealer with reasonable instructions 630 regarding the method by which the dealer must return the 631 property. Absent shipping instructions and prepayment of 632 shipping costs from the licensee or its common entity, the 633 dealer shall tender the inventory and other items to be returned 634 at the dealer’s facility. The compensation for the property 635 shall be paid by the licensee or its common entity 636 simultaneously with the tender of inventory and other items, 637 provided that, if the dealer does not have clear title to the 638 inventory and other items and is not in a position to convey 639 that title to the licensee, payment for the property being 640 returned may be made jointly to the dealer and the holder of any 641 security interest. 642 (37) Notwithstanding the terms of any franchise agreement, 643 the applicant or licensee has refused to allow or has limited or 644 restricted a motor vehicle dealer from acquiring or adding a 645 sales or service operation for another line-make of motor 646 vehicles at the same or expanded facility at which the motor 647 vehicle dealer currently operates a dealership unless the 648 applicant or licensee can demonstrate that such refusal, 649 limitation, or restriction is justified by consideration of 650 reasonable facility and financial requirements and the dealer’s 651 performance for the existing line-make. 652 (38) The applicant or licensee has failed or refused to 653 offer a bonus, incentive, or other benefit program, in whole or 654 in part, to a dealer or dealers in this state which it offers to 655 all of its other same line-make dealers nationally or to all of 656 its other same line-make dealers in the licensee’s designated 657 zone, region, or other licensee-designated area of which this 658 state is a part, unless the failure or refusal to offer the 659 program in this state is reasonably supported by substantially 660 different economic or marketing considerations than are 661 applicable to the licensee’s same line-make dealers in this 662 state. For purposes of this chapter, a licensee may not 663 establish this state alone as a designated zone, region, or area 664 or any other designation for a specified territory. A licensee 665 may offer a bonus, rebate, incentive, or other benefit program 666 to its dealers in this state which is calculated or paid on a 667 per vehicle basis and is related in part to a dealer’s facility 668 or the expansion, improvement, remodeling, alteration, or 669 renovation of a dealer’s facility. Any dealer who does not 670 comply with the facility criteria or eligibility requirements of 671 such program is entitled to receive a reasonable percentage of 672 the bonus, incentive, rebate, or other benefit offered by the 673 licensee under that program by complying with the criteria or 674 eligibility requirements unrelated to the dealer’s facility 675 under that program. For purposes of the previous sentence, the 676 percentage unrelated to the facility criteria or requirements is 677 presumed to be “reasonable” if it is not less than 80 percent of 678 the total of the per vehicle bonus, incentive, rebate, or other 679 benefits offered under the program. 680 (39) Notwithstanding any agreement, program, incentive, 681 bonus, policy, or rule, an applicant or licensee may not fail to 682 make any payment pursuant to any agreement, program, incentive, 683 bonus, policy, or rule for any temporary replacement motor 684 vehicle loaned, rented, or provided by a motor vehicle dealer to 685 or for its service or repair customers, even if the temporary 686 replacement motor vehicle has been leased, rented, titled, or 687 registered to the motor vehicle dealer’s rental or leasing 688 division or an entity that is owned or controlled by the motor 689 vehicle dealer, provided that the motor vehicle dealer or its 690 rental or leasing division or entity complies with the written 691 and uniformly enforced vehicle eligibility, use, and reporting 692 requirements specified by the applicant or licensee in its 693 agreement, program, policy, bonus, incentive, or rule relating 694 to loaner vehicles. 695 (40) Notwithstanding the terms of any franchise agreement, 696 the applicant or licensee may not require or coerce, or attempt 697 to require or coerce, a motor vehicle dealer to purchase goods 698 or services from a vendor selected, identified, or designated by 699 the applicant or licensee, or one of its parents, subsidiaries, 700 divisions, or affiliates, by agreement, standard, policy, 701 program, incentive provision, or otherwise, without making 702 available to the motor vehicle dealer the option to obtain the 703 goods or services of substantially similar design and quality 704 from a vendor chosen by the motor vehicle dealer. If the motor 705 vehicle dealer exercises such option, the dealer must provide 706 written notice of its desire to use the alternative goods or 707 services to the applicant or licensee, along with samples or 708 clear descriptions of the alternative goods or services that the 709 dealer desires to use. The licensee or applicant shall have the 710 opportunity to evaluate the alternative goods or services for up 711 to 30 days to determine whether it will provide a written 712 approval to the motor vehicle dealer to use said alternative 713 goods or services. Approval may not be unreasonably withheld by 714 the applicant or licensee. If the motor vehicle dealer does not 715 receive a response from the applicant or licensee within 30 716 days, approval to use the alternative goods or services is 717 deemed granted. If a dealer using alternative goods or services 718 complies with this subsection and has received approval from the 719 licensee or applicant, the dealer is not ineligible for all 720 benefits described in the agreement, standard, policy, program, 721 incentive provision, or otherwise solely for having used such 722 alternative goods or services. As used in this subsection, the 723 term “goods or services” is limited to such goods and services 724 used to construct or renovate dealership facilities or furniture 725 and fixtures at the dealership facilities. The term does not 726 include: 727 (a) Any materials subject to the applicant’s or licensee’s 728 intellectual property rights, including copyright, trademark, or 729 trade dress rights; 730 (b) Any special tool and training as required by the 731 applicant or licensee; 732 (c) Any part to be used in repairs under warranty 733 obligations of an applicant or licensee; 734 (d) Any good or service paid for entirely by the applicant 735 or licensee; or 736 (e) Any applicant’s or licensee’s design or architectural 737 review service. 738 (41)(a) The applicant or licensee has failed to act in good 739 faith toward or to deal fairly with one of its franchised motor 740 vehicle dealers regarding the terms or provisions of an 741 agreement. For purposes of this subsection, an applicant or 742 licensee may have failed to act in good faith toward or deal 743 fairly with a motor vehicle dealer even in the absence of any 744 act or threat of coercion or intimidation made by the applicant 745 or licensee toward the motor vehicle dealer or even in the 746 absence of an allegation by the motor vehicle dealer that an 747 express term or provision of a franchise agreement has been 748 breached or violated by the applicant or licensee. In any action 749 brought under this subsection, the department or a court of 750 competent jurisdiction shall consider all of the following 751 factors, among others, in determining whether an applicant or 752 licensee has failed to act in good faith toward or deal fairly 753 with a motor vehicle dealer regarding the terms or provisions of 754 any agreement or in any of its dealings with a motor vehicle 755 dealer or in compliance with this subsection: 756 1. Whether the applicant or licensee has fairly taken into 757 account the motor vehicle dealer’s investment in its facilities, 758 its sales or service or parts promotions, its staffing, and its 759 general operations. 760 2. Whether the applicant or licensee has altered the rights 761 of the motor vehicle dealer or the dealer’s independence in 762 operating the dealership. 763 3. Whether the applicant or licensee has altered the sales 764 or service obligations of the motor vehicle dealer or adversely 765 impaired the investment or the financial return of the motor 766 vehicle dealer in any part of the motor vehicle dealer’s sales, 767 service, or parts operations. 768 4. Whether the applicant or licensee has fairly taken into 769 account the equities and interests of the motor vehicle dealer. 770 (b) An affirmative determination regarding one or more of 771 the factors under paragraph (a) is sufficient to sustain a 772 finding of failure to act in good faith toward or deal fairly 773 with a motor vehicle dealer. 774 (42)(a) An applicant or licensee may not establish, 775 implement, or enforce criteria for measuring the sales or 776 service performance of any of its franchised motor vehicle 777 dealers in this state which may have a negative material or 778 adverse effect on any dealer; which is unfair, unreasonable, 779 arbitrary, or inequitable; or which does not include all 780 applicable local and regional criteria, data, and facts. 781 Relevant and material national or state criteria or data may be 782 considered, but comparison to such data may not outweigh the 783 local and regional factors and data. The term “relevant and 784 material” includes, but is not limited to, comparable size 785 dealerships in comparable markets with comparable buyer 786 profiles. If such measurement is based, in whole or in part, 787 upon a survey, the survey must be based upon a statistically 788 significant and valid random sample. Upon the request of any 789 dealer, applicant, licensee, common entity, or affiliate thereof 790 that seeks to establish, implement, or enforce against any 791 dealer any such performance measurement must promptly describe 792 in writing to the motor vehicle dealer, in detail, how the 793 measurement criteria for the dealer’s sales and service 794 performance was designed, calculated, established, and applied. 795 (b) Any dealer, against whom any such performance 796 measurement criteria are sought to be used for any purpose 797 adverse to the dealer, has the right to file a complaint in any 798 court of competent jurisdiction alleging that such performance 799 criteria does not comply with this subsection and, if 800 successful, shall be entitled to damages pursuant to s. 320.697, 801 plus attorney fees and injunctive relief. The court is 802 authorized to issue temporary, preliminary, and permanent 803 injunctive relief without regard to the existence of an adequate 804 remedy at law or irreparable harm and without requiring a bond 805 of any complainant. 806 (c) In any proceeding under this subsection, the applicant 807 or licensee shall bear the ultimate burden of proof that the 808 dealer performance measurement criteria complies with this 809 subsection and has been implemented and enforced uniformly by 810 the applicant or licensee among its dealers in this state. 811 812 A motor vehicle dealer who can demonstrate that a violation of, 813 or failure to comply with, this sectionany of the preceding814provisionsby an applicant or licensee will or can adversely and 815 pecuniarily affect the complaining dealer,shall be entitled to 816 pursue all of the remedies, procedures, and rights of recovery 817 available under ss. 320.695,and320.697, and 320.699. 818 Section 2. Section 320.648, Florida Statutes, is created to 819 read: 820 320.648 Discriminatory practices; prohibitions.— 821 (1) For the purpose of avoiding competitive disadvantages 822 of a motor vehicle dealer in this state by reason of differences 823 in dealer cost of any motor vehicle and for the purpose of 824 eliminating discrimination by an applicant or licensee against 825 any motor vehicle dealer in this state, an applicant or licensee 826 is prohibited from: 827 (a) Selling or offering to sell a new motor vehicle to a 828 motor vehicle dealer at a lower actual, effective cost, 829 including the cost of the vehicle transportation, than the 830 actual, effective cost that the same model similarly equipped is 831 offered to or is available to another same line-make motor 832 dealer in this state during a similar period. 833 (b) Discriminating between its same-line make dealers in 834 this state by the use of a promotional, incentive, or bonus 835 plan, program, device, benefit, or otherwise, whether received 836 by the motor vehicle dealer at the time of sale of the new motor 837 vehicle to the dealer or later, which results in a lower cost, 838 including the cost of the vehicle transportation, than the 839 actual, effective cost that the same model similarly equipped is 840 offered or is available to another same line-make model motor 841 vehicle dealer in this state during a similar period. 842 (2) Subsection (1) does not prohibit a licensee’s or 843 applicant’s offer of a promotion, bonus, or incentive which in 844 effect does not discriminate against, and is functionally 845 available to, all competing dealers of the same line-make in 846 this state on substantially comparable terms, provided that it 847 contains fair and reasonably achievable sales or service 848 objectives. 849 (3) Subsection (1) does not obviate, affect, alter, or 850 diminish s. 320.64(38). 851 Section 3. Section 320.699, Florida Statutes, is amended to 852 read: 853 320.699AdministrativeHearings and adjudications; 854 procedure.— 855 (1) A motor vehicle dealer, or person with entitlements to 856 or in a motor vehicle dealer, who is directly and adversely 857 affected by the action or conduct of an applicant or licensee 858 which is alleged to be in violation of any provision of ss. 859 320.60-320.70, may seek a declaration and adjudication of its 860 rights with respect to the alleged action or conduct of the 861 applicant or licensee by: 862 (a) Filing with the department a request for a proceeding 863 and an administrative hearing which conforms substantially with 864 the requirements of ss. 120.569 and 120.57;or865 (b) Filing with the department a written objection or 866 notice of protest pursuant to s. 320.642; or 867 (c) As an alternative, filing a complaint in any court of 868 competent jurisdiction to seek temporary, preliminary, or 869 permanent injunctive relief and civil damages pursuant to s. 870 320.697. Upon a prima facie showing by a complainant that such 871 violation has occurred, or may occur, the burden of proof of all 872 issues must then be upon the applicant or licensee to prove that 873 such violation did not or will not occur. In any such 874 proceeding, a court may issue injunctive relief without regard 875 to the existence of an adequate remedy at law or irreparable 876 harm and without requiring any bond and may award costs and 877 reasonable attorney fees to the complainant if relief is 878 granted. 879 (2) If a written objection or notice of protest is filed 880 with the department under paragraph (1)(b), a hearing shall be 881 held not sooner than 180 days nor later than 240 days from the 882 date of filing of the first objection or notice of protest, 883 unless the time is extended by the administrative law judge for 884 good cause shown. This subsection shall govern the schedule of 885 hearings in lieu of any other provision of law with respect to 886 administrative hearings conducted by the Department of Highway 887 Safety and Motor Vehicles or the Division of Administrative 888 Hearings, including performance standards of state agencies, 889 which may be included in current and future appropriations acts. 890 Section 4. This act shall take effect upon becoming a law.