Bill Amendment: FL S0960 | 2016 | Regular Session

NOTE: For additional amemendments please see the Bill Drafting List

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Bill Title: Protection of Motor Vehicle Dealers' Consumer Data

Status: 2016-03-04 - Laid on Table, companion bill(s) passed, see CS/CS/HB 231 (Ch. 2016-77) [S0960 Detail]

Download: Florida-2016-S0960-Senate_Floor_Amendment_105058.html

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       Florida Senate - 2016                          SENATOR AMENDMENT
       Bill No. CS for SB 960
       
       
       
       
       
       
                                Ì105058.Î105058                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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       Senator Richter moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Before line 38
    4  insert:
    5         Section 1. Subsections (25) and (26) of section 320.64,
    6  Florida Statutes, are amended, and subsections (39) and (40) are
    7  added to that section, to read:
    8         320.64 Denial, suspension, or revocation of license;
    9  grounds.—A license of a licensee under s. 320.61 may be denied,
   10  suspended, or revoked within the entire state or at any specific
   11  location or locations within the state at which the applicant or
   12  licensee engages or proposes to engage in business, upon proof
   13  that the section was violated with sufficient frequency to
   14  establish a pattern of wrongdoing, and a licensee or applicant
   15  shall be liable for claims and remedies provided in ss. 320.695
   16  and 320.697 for any violation of any of the following
   17  provisions. A licensee is prohibited from committing the
   18  following acts:
   19         (25) The applicant or licensee has undertaken or engaged in
   20  an audit of warranty, maintenance, and other service-related
   21  payments or incentive payments, including payments to a motor
   22  vehicle dealer under any licensee-issued program, policy, or
   23  other benefit, which were previously have been paid to a motor
   24  vehicle dealer in violation of this section or has failed to
   25  comply with any of its obligations under s. 320.696. An
   26  applicant or licensee may reasonably and periodically audit a
   27  motor vehicle dealer to determine the validity of paid claims as
   28  provided in s. 320.696. Audits of warranty, maintenance, and
   29  other service-related payments shall be performed by an
   30  applicant or licensee only during the 12-month 1-year period
   31  immediately following the date the claim was paid. Audits Audit
   32  of incentive payments shall only be performed only during the
   33  12-month for an 18-month period immediately following the date
   34  the incentive was paid. As used in this section, the term
   35  “incentive” includes any bonus, incentive, or other monetary or
   36  nonmonetary consideration. After such time periods have elapsed,
   37  all warranty, maintenance, and other service-related payments
   38  and incentive payments shall be deemed final and
   39  incontrovertible for any reason notwithstanding any otherwise
   40  applicable law, and the motor vehicle dealer shall not be
   41  subject to any chargeback charge-back or repayment. An applicant
   42  or licensee may deny a claim or, as a result of a timely
   43  conducted audit, impose a chargeback charge-back against a motor
   44  vehicle dealer for warranty, maintenance, or other service
   45  related payments or incentive payments only if the applicant or
   46  licensee can show that the warranty, maintenance, or other
   47  service-related claim or incentive claim was false or fraudulent
   48  or that the motor vehicle dealer failed to substantially comply
   49  with the reasonable written and uniformly applied procedures of
   50  the applicant or licensee for such repairs or incentives, but
   51  only for that portion of the claim so shown. Notwithstanding the
   52  terms of any franchise agreement, guideline, program, policy, or
   53  procedure, an applicant or licensee may deny or charge back only
   54  that portion of a warranty, maintenance, or other service
   55  related claim or incentive claim which the applicant or licensee
   56  has proven to be false or fraudulent or for which the dealer
   57  failed to substantially comply with the reasonable written and
   58  uniformly applied procedures of the applicant or licensee for
   59  such repairs or incentives, as set forth in this subsection. An
   60  applicant or licensee may not charge back a motor vehicle dealer
   61  back subsequent to the payment of a warranty, maintenance, or
   62  service-related claim or incentive claim unless, within 30 days
   63  after a timely conducted audit, a representative of the
   64  applicant or licensee first meets in person, by telephone, or by
   65  video teleconference with an officer or employee of the dealer
   66  designated by the motor vehicle dealer. At such meeting the
   67  applicant or licensee must provide a detailed explanation, with
   68  supporting documentation, as to the basis for each of the claims
   69  for which the applicant or licensee proposed a chargeback
   70  charge-back to the dealer and a written statement containing the
   71  basis upon which the motor vehicle dealer was selected for audit
   72  or review. Thereafter, the applicant or licensee must provide
   73  the motor vehicle dealer’s representative a reasonable period
   74  after the meeting within which to respond to the proposed
   75  chargebacks charge-backs, with such period to be commensurate
   76  with the volume of claims under consideration, but in no case
   77  less than 45 days after the meeting. The applicant or licensee
   78  is prohibited from changing or altering the basis for each of
   79  the proposed chargebacks charge-backs as presented to the motor
   80  vehicle dealer’s representative following the conclusion of the
   81  audit unless the applicant or licensee receives new information
   82  affecting the basis for one or more chargebacks charge-backs and
   83  that new information is received within 30 days after the
   84  conclusion of the timely conducted audit. If the applicant or
   85  licensee claims the existence of new information, the dealer
   86  must be given the same right to a meeting and right to respond
   87  as when the chargeback charge-back was originally presented.
   88  After all internal dispute resolution processes provided through
   89  the applicant or licensee have been completed, the applicant or
   90  licensee shall give written notice to the motor vehicle dealer
   91  of the final amount of its proposed chargeback charge-back. If
   92  the dealer disputes that amount, the dealer may file a protest
   93  with the department within 30 days after receipt of the notice.
   94  If a protest is timely filed, the department shall notify the
   95  applicant or licensee of the filing of the protest, and the
   96  applicant or licensee may not take any action to recover the
   97  amount of the proposed chargeback charge-back until the
   98  department renders a final determination, which is not subject
   99  to further appeal, that the chargeback charge-back is in
  100  compliance with the provisions of this section. In any hearing
  101  pursuant to this subsection, the applicant or licensee has the
  102  burden of proof that its audit and resulting chargeback charge
  103  back are in compliance with this subsection.
  104         (26) Notwithstanding the terms of any franchise agreement,
  105  including any licensee’s program, policy, or procedure, the
  106  applicant or licensee has refused to allocate, sell, or deliver
  107  motor vehicles; charged back or withheld payments or other
  108  things of value for which the dealer is otherwise eligible under
  109  a sales promotion, program, or contest; prevented a motor
  110  vehicle dealer from participating in any promotion, program, or
  111  contest; or has taken or threatened to take any adverse action
  112  against a dealer, including chargebacks charge-backs, reducing
  113  vehicle allocations, or terminating or threatening to terminate
  114  a franchise because the dealer sold or leased a motor vehicle to
  115  a customer who exported the vehicle to a foreign country or who
  116  resold the vehicle, unless the licensee proves that the dealer
  117  knew or reasonably should have known that the customer intended
  118  to export or resell the motor vehicle. There is a rebuttable
  119  presumption that the dealer neither knew nor reasonably should
  120  have known of its customer’s intent to export or resell the
  121  vehicle if the vehicle is titled or registered in any state in
  122  this country. A licensee may not take any action against a motor
  123  vehicle dealer, including reducing its allocations or supply of
  124  motor vehicles to the dealer, or charging back to a dealer any
  125  for an incentive payment previously paid, unless the licensee
  126  first meets in person, by telephone, or video conference with an
  127  officer or other designated employee of the dealer. At such
  128  meeting, the licensee must provide a detailed explanation, with
  129  supporting documentation, as to the basis for its claim that the
  130  dealer knew or reasonably should have known of the customer’s
  131  intent to export or resell the motor vehicle. Thereafter, the
  132  motor vehicle dealer shall have a reasonable period,
  133  commensurate with the number of motor vehicles at issue, but not
  134  less than 15 days, to respond to the licensee’s claims. If,
  135  following the dealer’s response and completion of all internal
  136  dispute resolution processes provided through the applicant or
  137  licensee, the dispute remains unresolved, the dealer may file a
  138  protest with the department within 30 days after receipt of a
  139  written notice from the licensee that it still intends to take
  140  adverse action against the dealer with respect to the motor
  141  vehicles still at issue. If a protest is timely filed, the
  142  department shall notify the applicant or licensee of the filing
  143  of the protest, and the applicant or licensee may not take any
  144  action adverse to the dealer until the department renders a
  145  final determination, which is not subject to further appeal,
  146  that the licensee’s proposed action is in compliance with the
  147  provisions of this subsection. In any hearing pursuant to this
  148  subsection, the applicant or licensee has the burden of proof on
  149  all issues raised by this subsection. An applicant or licensee
  150  may not take any adverse action against a motor vehicle dealer
  151  because the dealer sold or leased a motor vehicle to a customer
  152  who exported the vehicle to a foreign country or who resold the
  153  vehicle unless the applicant or licensee provides written
  154  notification to the motor vehicle dealer of such resale or
  155  export within 12 months after the date the dealer sold or leased
  156  the vehicle to the customer.
  157         (39) Notwithstanding any agreement, program, incentive,
  158  bonus, policy, or rule, an applicant or licensee may not fail to
  159  make any payment pursuant to any agreement, program, incentive,
  160  bonus, policy, or rule for any temporary replacement motor
  161  vehicle loaned, rented, or provided by a motor vehicle dealer to
  162  or for its service or repair customers, even if the temporary
  163  replacement motor vehicle has been leased, rented, titled, or
  164  registered to the motor vehicle dealer’s rental or leasing
  165  division or an entity that is owned or controlled by the motor
  166  vehicle dealer, provided that the motor vehicle dealer or its
  167  rental or leasing division or entity complies with the written
  168  and uniformly enforced vehicle eligibility, use, and reporting
  169  requirements specified by the applicant or licensee in its
  170  agreement, program, policy, bonus, incentive, or rule relating
  171  to loaner vehicles.
  172         (40) Notwithstanding the terms of any franchise agreement,
  173  the applicant or licensee may not require or coerce, or attempt
  174  to require or coerce, a motor vehicle dealer to purchase goods
  175  or services from a vendor selected, identified, or designated by
  176  the applicant or licensee, or one of its parents, subsidiaries,
  177  divisions, or affiliates, by agreement, standard, policy,
  178  program, incentive provision, or otherwise, without making
  179  available to the motor vehicle dealer the option to obtain the
  180  goods or services of substantially similar design and quality
  181  from a vendor chosen by the motor vehicle dealer. If the motor
  182  vehicle dealer exercises such option, the dealer must provide
  183  written notice of its desire to use the alternative goods or
  184  services to the applicant or licensee, along with samples or
  185  clear descriptions of the alternative goods or services that the
  186  dealer desires to use. The licensee or applicant shall have the
  187  opportunity to evaluate the alternative goods or services for up
  188  to 30 days to determine whether it will provide a written
  189  approval to the motor vehicle dealer to use said alternative
  190  goods or services. Approval may not be unreasonably withheld by
  191  the applicant or licensee. If the motor vehicle dealer does not
  192  receive a response from the applicant or licensee within 30
  193  days, approval to use the alternative goods or services is
  194  deemed granted. If a dealer using alternative goods or services
  195  complies with this subsection and has received approval from the
  196  licensee or applicant, the dealer is not ineligible for all
  197  benefits described in the agreement, standard, policy, program,
  198  incentive provision, or otherwise solely for having used such
  199  alternative goods or services. As used in this subsection, the
  200  term “goods or services” is limited to such goods and services
  201  used to construct or renovate dealership facilities or furniture
  202  and fixtures at the dealership facilities. The term does not
  203  include:
  204         (a) Any materials subject to the applicant’s or licensee’s
  205  intellectual property rights, including copyright, trademark, or
  206  trade dress rights;
  207         (b) Any special tool and training as required by the
  208  applicant or licensee;
  209         (c) Any part to be used in repairs under warranty
  210  obligations of an applicant or licensee;
  211         (d) Any good or service paid for entirely by the applicant
  212  or licensee; or
  213         (e) Any applicant’s or licensee’s design or architectural
  214  review service.
  215  
  216  A motor vehicle dealer who can demonstrate that a violation of,
  217  or failure to comply with, any of the preceding provisions by an
  218  applicant or licensee will or can adversely and pecuniarily
  219  affect the complaining dealer, shall be entitled to pursue all
  220  of the remedies, procedures, and rights of recovery available
  221  under ss. 320.695 and 320.697.
  222  
  223  ================= T I T L E  A M E N D M E N T ================
  224  And the title is amended as follows:
  225         Delete lines 2 - 3
  226  and insert:
  227         An act relating to motor vehicle dealers; amending s.
  228         320.64, F.S.; revising provisions for denial,
  229         suspension, or revocation of the license of a
  230         manufacturer, factory branch, distributor, or importer
  231         of motor vehicles; revising provisions for certain
  232         audits of service-related payments or incentive
  233         payments to a dealer by an applicant or licensee and
  234         the timeframe for the performance of such audits;
  235         defining the term “incentive”; revising provisions for
  236         denial or chargeback of claims; revising provisions
  237         that prohibit certain adverse actions against a dealer
  238         that sold or leased a motor vehicle to a customer who
  239         exported the vehicle to a foreign country or who
  240         resold the vehicle; revising conditions for taking
  241         such adverse actions; prohibiting failure to make
  242         certain payments to a motor vehicle dealer for
  243         temporary replacement vehicles under certain
  244         circumstances; prohibiting requiring or coercing a
  245         dealer to purchase goods or services from a vendor
  246         designated by the applicant or licensee unless certain
  247         conditions are met; providing procedures for approval
  248         of a dealer to purchase goods or services from a
  249         vendor not designated by the applicant or licensee;
  250         defining the term “goods or services”; creating s.
  251         320.646, F.S.;