Bill Text: FL S0430 | 2016 | Regular Session | Introduced
Bill Title: Motor Vehicle Manufacturer Licenses
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2016-03-11 - Died in Transportation, companion bill(s) passed, see CS/CS/HB 231 (Ch. 2016-77) [S0430 Detail]
Download: Florida-2016-S0430-Introduced.html
Florida Senate - 2016 SB 430
By Senator Garcia
38-00457A-16 2016430__
1 A bill to be entitled
2 An act relating to motor vehicle manufacturer
3 licenses; amending s. 320.64, F.S.; revising
4 provisions for denial, suspension, or revocation of
5 the license of a manufacturer, factory branch,
6 distributor, or importer of motor vehicles; providing
7 requirements for incentive payments made to motor
8 vehicle dealers for making certain changes or
9 additions to a dealer’s facility or signage; providing
10 applicability; conforming a cross-reference; revising
11 provisions for certain audits of service-related
12 payments or incentive payments to a dealer by an
13 applicant or licensee and the timeframe for the
14 performance of such audits; defining the term
15 “incentive”; revising provisions for denial or
16 chargeback of claims; revising provisions that
17 prohibit certain adverse actions against a dealer that
18 sold or leased a motor vehicle to a customer who
19 exported the vehicle to a foreign country or who
20 resold the vehicle; revising conditions for taking
21 such adverse actions; prohibiting failure to make
22 certain payments to a motor vehicle dealer for
23 temporary replacement vehicles under certain
24 circumstances; prohibiting requiring or coercing a
25 dealer to purchase goods or services from a vendor
26 designated by the applicant or licensee unless certain
27 conditions are met; providing procedures for approval
28 of a dealer to purchase goods or services from a
29 vendor not designated by the applicant or licensee;
30 defining the term “goods or services”; prohibiting an
31 applicant or licensee from requiring a motor vehicle
32 dealer to pay for certain advertising or marketing, or
33 to participate in or affiliate with a dealer
34 advertising or marketing entity; prohibiting an
35 applicant or licensee from taking or threatening to
36 take any adverse action against a motor vehicle dealer
37 who refuses to join or participate in such entity;
38 defining the term “adverse action”; providing that an
39 applicant or licensee may not require a dealer to
40 participate in, or may not preclude its motor vehicle
41 dealers in a designated market area from establishing,
42 a voluntary motor vehicle dealer advertising or
43 marketing entity; providing that an applicant or
44 licensee is not required to fund such an entity under
45 certain circumstances; providing for retroactive
46 applicability; providing for severability; providing
47 an effective date.
48
49 Be It Enacted by the Legislature of the State of Florida:
50
51 Section 1. Paragraph (h) of subsection (10) of section
52 320.64, Florida Statutes, is amended and redesignated as
53 paragraph (i), a new paragraph (h) is added to that subsection,
54 subsections (25) and (26) are amended, and subsections (39),
55 (40), and (41) are added to that section, to read:
56 320.64 Denial, suspension, or revocation of license;
57 grounds.—A license of a licensee under s. 320.61 may be denied,
58 suspended, or revoked within the entire state or at any specific
59 location or locations within the state at which the applicant or
60 licensee engages or proposes to engage in business, upon proof
61 that the section was violated with sufficient frequency to
62 establish a pattern of wrongdoing, and a licensee or applicant
63 shall be liable for claims and remedies provided in ss. 320.695
64 and 320.697 for any violation of any of the following
65 provisions. A licensee is prohibited from committing the
66 following acts:
67 (10)
68 (h) If an applicant or licensee establishes a program,
69 standard, or policy that offers a bonus, incentive, rebate, or
70 other benefit that is available to a motor vehicle dealer in
71 this state and that is premised, wholly or in part, on dealer
72 facility improvements, renovations, expansions, remodeling, or
73 alterations or installation of signs or other image elements, a
74 motor vehicle dealer who completes an approved change to or
75 installation on the facility in reliance upon such program,
76 standard, or policy is deemed to be in full compliance with all
77 of the applicant’s or licensee’s requirements related to the
78 facility, sign, and image for a 10-year period following such
79 completion. If, during the 10-year period, the applicant or
80 licensee establishes a new program, standard, or policy related
81 to facility, sign, or image requirements that offers a new
82 bonus, incentive, rebate, or other benefit, a motor vehicle
83 dealer that completed an approved facility in reliance upon the
84 prior program, standard, or policy but does not comply with the
85 new program, standard, or policy is not eligible for benefits
86 under provisions related to the facility, sign, or image of the
87 new program, standard, or policy but shall remain entitled to
88 all benefits under the older program, standard, or policy, in
89 addition to any increase in benefits between the old and new
90 programs, standards, or policies during the remainder of the 10
91 year period. This subsection does not obviate, affect, or alter
92 the any provision of subsection (38).
93 (i)(h) A violation of paragraphs (b)-(h) (b) through (g) is
94 not a violation of s. 320.70 and does not subject any licensee
95 to any criminal penalty under s. 320.70.
96 (25) The applicant or licensee has undertaken or engaged in
97 an audit of warranty, maintenance, and other service-related
98 payments or incentive payments, including payments to a motor
99 vehicle dealer under any licensee-issued program, policy, or
100 other benefit, which were previously have been paid to a motor
101 vehicle dealer in violation of this section or has failed to
102 comply with any of its obligations under s. 320.696. An
103 applicant or licensee may reasonably and periodically audit a
104 motor vehicle dealer to determine the validity of paid claims as
105 provided in s. 320.696. Audits of warranty, maintenance, and
106 other service-related payments shall be performed by an
107 applicant or licensee only during the 12-month 1-year period
108 immediately following the date the claim was paid. Audits Audit
109 of incentive payments shall only be performed only during the
110 12-month for an 18-month period immediately following the date
111 the incentive was paid. As used in this section, the term
112 “incentive” includes any bonus, incentive, or other monetary or
113 nonmonetary consideration. After such time periods have elapsed,
114 all warranty, maintenance, and other service-related payments
115 and incentive payments shall be deemed final and
116 incontrovertible for any reason notwithstanding any otherwise
117 applicable law, and the motor vehicle dealer shall not be
118 subject to any chargeback charge-back or repayment. An applicant
119 or licensee may deny a claim or, as a result of a timely
120 conducted audit, impose a chargeback charge-back against a motor
121 vehicle dealer for warranty, maintenance, or other service
122 related payments or incentive payments only if the applicant or
123 licensee can show that the warranty, maintenance, or other
124 service-related claim or incentive claim was false or fraudulent
125 or that the motor vehicle dealer failed to substantially comply
126 with the reasonable written and uniformly applied procedures of
127 the applicant or licensee for such repairs or incentives, but
128 only for that portion of the claim so shown. Notwithstanding the
129 terms of any franchise agreement, guideline, program, policy, or
130 procedure, an applicant or licensee may deny or charge back only
131 that portion of a warranty, maintenance, or other service
132 related claim or incentive claim which the applicant or licensee
133 has proven to be false or fraudulent or for which the dealer
134 failed to substantially comply with the reasonable written and
135 uniformly applied procedures of the applicant or licensee for
136 such repairs or incentives, as set forth in this subsection. An
137 applicant or licensee may not charge back a motor vehicle dealer
138 back subsequent to the payment of a warranty, maintenance, or
139 service-related claim or incentive claim unless, within 30 days
140 after a timely conducted audit, a representative of the
141 applicant or licensee first meets in person, by telephone, or by
142 video teleconference with an officer or employee of the dealer
143 designated by the motor vehicle dealer. At such meeting the
144 applicant or licensee must provide a detailed explanation, with
145 supporting documentation, as to the basis for each of the claims
146 for which the applicant or licensee proposed a chargeback
147 charge-back to the dealer and a written statement containing the
148 basis upon which the motor vehicle dealer was selected for audit
149 or review. Thereafter, the applicant or licensee must provide
150 the motor vehicle dealer’s representative a reasonable period
151 after the meeting within which to respond to the proposed
152 chargebacks charge-backs, with such period to be commensurate
153 with the volume of claims under consideration, but in no case
154 less than 45 days after the meeting. The applicant or licensee
155 is prohibited from changing or altering the basis for each of
156 the proposed chargebacks charge-backs as presented to the motor
157 vehicle dealer’s representative following the conclusion of the
158 audit unless the applicant or licensee receives new information
159 affecting the basis for one or more chargebacks charge-backs and
160 that new information is received within 30 days after the
161 conclusion of the timely conducted audit. If the applicant or
162 licensee claims the existence of new information, the dealer
163 must be given the same right to a meeting and right to respond
164 as when the chargeback charge-back was originally presented.
165 After all internal dispute resolution processes provided through
166 the applicant or licensee have been completed, the applicant or
167 licensee shall give written notice to the motor vehicle dealer
168 of the final amount of its proposed chargeback charge-back. If
169 the dealer disputes that amount, the dealer may file a protest
170 with the department within 30 days after receipt of the notice.
171 If a protest is timely filed, the department shall notify the
172 applicant or licensee of the filing of the protest, and the
173 applicant or licensee may not take any action to recover the
174 amount of the proposed chargeback charge-back until the
175 department renders a final determination, which is not subject
176 to further appeal, that the chargeback charge-back is in
177 compliance with the provisions of this section. In any hearing
178 pursuant to this subsection, the applicant or licensee has the
179 burden of proof that its audit and resulting chargeback charge
180 back are in compliance with this subsection.
181 (26) Notwithstanding the terms of any franchise agreement,
182 including any licensee’s program, policy, or procedure, the
183 applicant or licensee has refused to allocate, sell, or deliver
184 motor vehicles; charged back or withheld payments or other
185 things of value for which the dealer is otherwise eligible under
186 a sales promotion, program, or contest; prevented a motor
187 vehicle dealer from participating in any promotion, program, or
188 contest; or has taken or threatened to take any adverse action
189 against a dealer, including chargebacks charge-backs, reducing
190 vehicle allocations, or terminating or threatening to terminate
191 a franchise because the dealer sold or leased a motor vehicle to
192 a customer who exported the vehicle to a foreign country or who
193 resold the vehicle, unless the licensee proves that the dealer
194 knew or reasonably should have known that the customer intended
195 to export or resell the motor vehicle. There is a rebuttable
196 presumption that the dealer neither knew nor reasonably should
197 have known of its customer’s intent to export or resell the
198 vehicle if the vehicle is titled or registered in any state in
199 this country. A licensee may not take any action against a motor
200 vehicle dealer, including reducing its allocations or supply of
201 motor vehicles to the dealer, or charging back to a dealer any
202 for an incentive payment previously paid, unless the licensee
203 first meets in person, by telephone, or video conference with an
204 officer or other designated employee of the dealer. At such
205 meeting, the licensee must provide a detailed explanation, with
206 supporting documentation, as to the basis for its claim that the
207 dealer knew or reasonably should have known of the customer’s
208 intent to export or resell the motor vehicle. Thereafter, the
209 motor vehicle dealer shall have a reasonable period,
210 commensurate with the number of motor vehicles at issue, but not
211 less than 15 days, to respond to the licensee’s claims. If,
212 following the dealer’s response and completion of all internal
213 dispute resolution processes provided through the applicant or
214 licensee, the dispute remains unresolved, the dealer may file a
215 protest with the department within 30 days after receipt of a
216 written notice from the licensee that it still intends to take
217 adverse action against the dealer with respect to the motor
218 vehicles still at issue. If a protest is timely filed, the
219 department shall notify the applicant or licensee of the filing
220 of the protest, and the applicant or licensee may not take any
221 action adverse to the dealer until the department renders a
222 final determination, which is not subject to further appeal,
223 that the licensee’s proposed action is in compliance with the
224 provisions of this subsection. In any hearing pursuant to this
225 subsection, the applicant or licensee has the burden of proof on
226 all issues raised by this subsection. An applicant or licensee
227 may not take any adverse action against a motor vehicle dealer
228 because the dealer sold or leased a motor vehicle to a customer
229 who exported the vehicle to a foreign country or who resold the
230 vehicle unless the applicant or licensee provides written
231 notification to the motor vehicle dealer of such resale or
232 export within 12 months after the date the dealer sold or leased
233 the vehicle to the customer.
234 (39) Notwithstanding any agreement, program, incentive,
235 bonus, policy, or rule, an applicant or licensee may not fail to
236 make any payment pursuant to any agreement, program, incentive,
237 bonus, policy, or rule for any temporary replacement motor
238 vehicle loaned, rented, or provided by a motor vehicle dealer to
239 or for its service or repair customers, even if the temporary
240 replacement motor vehicle has been leased, rented, titled, or
241 registered to the motor vehicle dealer’s rental or leasing
242 division or an entity that is owned or controlled by the motor
243 vehicle dealer, provided that the motor vehicle dealer or its
244 rental or leasing division or entity complies with the written
245 and uniformly enforced vehicle eligibility, use, and reporting
246 requirements specified by the applicant or licensee in its
247 agreement, program, policy, bonus, incentive, or rule relating
248 to loaner vehicles.
249 (40) Notwithstanding the terms of any franchise agreement,
250 the applicant or licensee may not require or coerce, or attempt
251 to require or coerce, a motor vehicle dealer to purchase goods
252 or services from a vendor selected, identified, or designated by
253 the applicant or licensee, or one of its parents, subsidiaries,
254 divisions, or affiliates, by agreement, standard, policy,
255 program, incentive provision, or otherwise, without making
256 available to the motor vehicle dealer the option to obtain the
257 goods or services of substantially similar design and quality
258 from a vendor chosen by the motor vehicle dealer. If the motor
259 vehicle dealer exercises such option, the dealer must provide
260 written notice of its desire to use the alternative goods or
261 services to the applicant or licensee, along with samples or
262 clear descriptions of the alternative goods or services that the
263 dealer desires to use. The licensee or applicant shall have the
264 opportunity to evaluate the alternative goods or services for up
265 to 30 days to determine whether it will provide a written
266 approval to the motor vehicle dealer to use said alternative
267 goods or services. Approval may not be unreasonably withheld by
268 the applicant or licensee. If the motor vehicle dealer does not
269 receive a response from the applicant or licensee within 30
270 days, approval to use the alternative goods or services is
271 deemed granted. If a dealer using alternative goods or services
272 complies with this subsection and has received approval from the
273 licensee or applicant, the dealer is not ineligible for all
274 benefits described in the agreement, standard, policy, program,
275 incentive provision, or otherwise solely for having used such
276 alternative goods or services. As used in this subsection, the
277 term “goods or services” is limited to such goods and services
278 used to construct or renovate dealership facilities or furniture
279 and fixtures at the dealership facilities. The term does not
280 include:
281 (a) Any intellectual property of the applicant or licensee,
282 including signage incorporating the applicant’s or licensee’s
283 trademark or copyright, or facility or building materials to the
284 extent that the applicant’s or licensee’s trademark is displayed
285 thereon;
286 (b) Any special tool and training as required by the
287 licensee or applicant;
288 (c) Any part to be used in repairs under warranty
289 obligations of an applicant or licensee;
290 (d) Any good or service paid for entirely by the applicant
291 or licensee; or
292 (e) Any applicant’s or licensee’s design or architectural
293 review service.
294 (41)(a) The applicant or licensee, by agreement, policy,
295 program, standard, or otherwise, may not require a motor vehicle
296 dealer, directly or indirectly, to advance or pay or reimburse
297 the applicant or licensee for any costs related to the creation,
298 development, showing, placement, or publication in any media of
299 any advertisement for a motor vehicle; require a motor vehicle
300 dealer to participate in, contribute to, affiliate with, or join
301 a dealer advertising or marketing group, fund, pool,
302 association, or other entity; or take or threaten to take any
303 adverse action against a motor vehicle dealer that refuses to
304 join or participate in such group, fund, pool, association, or
305 other entity. As used in this subsection, the term “adverse
306 action” includes, but is not limited to, reducing allocations,
307 charging fees for a licensee’s or dealer’s advertising or a
308 marketing group’s advertising or marketing, terminating or
309 threatening to terminate the motor vehicle dealer’s franchise
310 agreement, reducing any incentive for which the motor vehicle
311 dealer is eligible, or engaging in any action that fails to take
312 into account the equities of the motor vehicle dealer.
313 (b) The applicant or licensee may not require a dealer to
314 participate in or preclude a number of its motor vehicle dealers
315 in a designated market area from establishing a voluntary motor
316 vehicle dealer advertising or marketing group, fund, pool,
317 association, or other entity. Except as provided in an
318 agreement, if a motor vehicle dealer chooses to form an
319 independent advertising or marketing group, the applicant or
320 licensee is not required to fund such group.
321 (c) This subsection does not prohibit an applicant or
322 licensee from offering advertising or promotional materials to a
323 motor vehicle dealer for a fee or charge, if the use of such
324 advertising or promotional materials is voluntary for the motor
325 vehicle dealer.
326
327 A motor vehicle dealer who can demonstrate that a violation of,
328 or failure to comply with, any of the preceding provisions by an
329 applicant or licensee will or can adversely and pecuniarily
330 affect the complaining dealer, shall be entitled to pursue all
331 of the remedies, procedures, and rights of recovery available
332 under ss. 320.695 and 320.697.
333 Section 2. This act applies to all franchise agreements
334 entered into, renewed, or amended after October 1, 1988, except
335 to the extent that such application would impair valid
336 contractual agreements in violation of the State Constitution or
337 the United States Constitution.
338 Section 3. If any provision of this act or its application
339 to any person or circumstance is held invalid, the invalidity
340 does not affect other provisions or applications of this act
341 which can be given effect without the invalid provision or
342 application, and to this end the provisions of this act are
343 severable.
344 Section 4. This act shall take effect upon becoming a law.
