Bill Text: IN HB1386 | 2013 | Regular Session | Introduced
Bill Title: Unfair practices concerning motor vehicle sales.
Spectrum: Bipartisan Bill
Status: (Passed) 2013-05-13 - Public Law 152 [HB1386 Detail]
Download: Indiana-2013-HB1386-Introduced.html
Citations Affected: IC 9-13-2; IC 9-23; IC 23-2-2.7.
Synopsis: Motor vehicle review board. Establishes the motor vehicle
review board (board) to assist the secretary of state in matters related
to motor vehicle dealers, manufacturers, and distributors, including the
adjudication of unfair practices. Provides that proceedings of the board
are subject to the administrative orders and procedures act. Authorizes
the board to impose and collect filing fees and civil penalties.
Establishes the motor vehicle review board administrative fund.
Deposits the fees and penalties in the fund. Amends existing provisions
and establishes new provisions concerning unfair practices with respect
to motor vehicle dealers, manufacturers, and distributors.
Effective: July 1, 2013.
January 22, 2013, read first time and referred to Committee on Roads and Transportation.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning
motor vehicles.
(b) "Motor vehicle", for purposes of IC 9-21, means:
(1) a vehicle except a motorized bicycle that is self-propelled; or
(2) a vehicle that is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.
(c) "Motor vehicle", for purposes of IC 9-19-10.5 and IC 9-25, means a vehicle that is self-propelled upon a highway in Indiana. The
term does not include a farm tractor.
(d) "Motor vehicle", for purposes of IC 9-30-10, does not include a
motorized bicycle.
(e) "Motor vehicle", for purposes of IC 9-23-1.1, IC 9-23-2, and
IC 9-23-3, includes a semitrailer.
(f) "Motor vehicle", for purposes of IC 9-24-6, has the meaning set
forth in 49 CFR 383.5 as in effect July 1, 2010.
(1) The securities commissioner appointed under IC 23-19-6-1(a).
(2) Another designee under the supervision and control of the secretary of state.
(3) The motor vehicle review board established by IC 9-23-1.1-2.
The
Chapter 1.1. Motor Vehicle Review Board
Sec. 1. As used in this chapter, "board" refers to the motor vehicle review board established by section 2 of this chapter.
Sec. 2. The motor vehicle review board is established to assist the secretary of state in matters relating to the administration of this article, including the adjudication of unfair practices under IC 9-23-3.
Sec. 3. (a) The board consists of the following thirteen (13) voting members:
(1) The secretary of state or the secretary of state's designee.
(2) Four (4) members who are franchised new motor vehicle dealers as follows:
(A) One (1) member who sold fewer than seven hundred fifty (750) new motor vehicles from one (1) or more locations owned by the member during the twelve (12) months immediately preceding the member's appointment.
(B) One (1) member who sold seven hundred fifty (750) or more new motor vehicles from one (1) or more locations owned by the member during the twelve (12) months
immediately preceding the member's appointment.
(C) One (1) member who sells medium or heavy duty
trucks.
(D) One (1) member who sells primarily motorcycles or
other motor vehicles for which a license under IC 9-23-2 is
required.
(3) Two (2) members who:
(A) represent the automobile manufacturing industry; and
(B) have resided in Indiana for at least two (2) years
immediately preceding their appointments.
(4) Two (2) members who:
(A) represent the general public; and
(B) have no direct interest in the manufacture or sale of
motor vehicles.
(5) Two (2) members who:
(A) represent used motor vehicle dealers; and
(B) are not new motor vehicle dealers.
(6) One (1) member who represents used motor vehicle
auctioneers.
(7) One (1) member who represents the vehicle salvage
industry.
Members described in subdivisions (2) through (7) are appointed
by and serve at the pleasure of the governor.
(b) If a member described in subsection (a)(2)(A), (a)(2)(B), or
(a)(3) is reappointed, the member must satisfy the conditions set
forth in the applicable subdivision with respect to the applicable
period immediately preceding the member's reappointment.
(c) Not more than seven (7) members of the board may be of the
same political party.
(d) If, after a reasonable time, the governor is unable to appoint
a member under subsection (a)(2), (a)(3), (a)(5), (a)(6), or (a)(7),
the governor may appoint a member of the general public.
(e) Except as provided in subsection (f), a member appointed
under this section serves a term of three (3) years and may be
reappointed. However, a member may not serve more than two (2)
consecutive terms. A member may:
(1) be removed for good cause; or
(2) tender a written resignation that is effective upon
acceptance by the chairperson.
A member serves until a successor is appointed.
(f) The terms of members initially appointed by the governor
under subsection (a) are as follows:
(1) A member appointed under subsection (a)(2) serves an initial term of one (1) year.
(2) A member appointed under subsection (a)(3) or (a)(4) serves an initial term of two (2) years.
(3) A member appointed under subsection (a)(5) or (a)(6) serves an initial term of three (3) years.
Sec. 4. Each member of the board who is not a state employee is entitled to:
(1) the minimum salary per diem provided by IC 4-10-11-2.1(b); and
(2) reimbursement for traveling expenses as provided under IC 4-13-1-4 and other expenses actually incurred in connection with the member's duties as provided in the state policies and procedures established by the Indiana department of administration and approved by the budget agency.
Sec. 5. (a) The secretary of state shall serve as chairperson of the board.
(b) During January of each year, the board shall elect a vice chairperson and a secretary from among the board's members to serve for the calendar year. An officer elected under this subsection may be removed for good cause.
Sec. 6. (a) The board shall meet as follows:
(1) At least once during January of each year.
(2) At the call of the chairperson.
(3) At the written request of three (3) or more members.
(b) The board shall keep a record of all meetings and transactions.
Sec. 7. A quorum consists of seven (7) members of the board. A quorum and a majority of votes are required to take official action. The chairperson votes only in the event of a tie.
Sec. 8. The board may do the following:
(1) Consult with and advise the secretary of state.
(2) Adopt or recommend adoption of rules, including rules concerning:
(A) the contents of forms prescribed by the secretary of state;
(B) methods and procedures for investigating and evaluating applicants for licenses under IC 9-23-2;
(C) criteria for issuing, denying, suspending, and revoking licenses under IC 9-23-2; and
(D) procedures for investigating and conducting hearings
on:
(i) unfair practices under this article; and
(ii) deceptive franchise practices under IC 23-2-2.7.
(3) Advise the governor and the secretary of state on
regulatory matters concerning vehicle manufacturers,
distributors, and dealers.
Sec. 9. (a) Except as otherwise provided, proceedings of the
board are subject to IC 4-21.5.
(b) A consumer may file with the board a complaint alleging a
violation of this article. The complaint must be submitted with a
filing fee of seventy-five dollars ($75).
(c) A dealer, distributor, or manufacturer may file with the
board a protest alleging a violation of this article or IC 23-2-2.7, or
both. The protest must be submitted with a filing fee of three
thousand dollars ($3,000).
(d) A party to a complaint or protest may request an expedited
hearing under rules adopted under section 11(c) of this chapter.
(e) The board shall deposit all filing fees collected under this
section in the motor vehicle review board administrative fund
under section 15 of this chapter.
Sec. 10. After reviewing a complaint or protest filed under
section 9 of this chapter, if the board determines, with or without
a hearing, that a person is violating or will violate this article or
IC 23-2-2.7, the board may institute a civil action in any circuit or
superior court of Indiana for injunctive relief to restrain the
person from continuing the activity, pending the disposition of the
underlying complaint or protest.
Sec. 11. (a) Except as provided in subsections (b) and (c), the
board shall conduct a hearing on a complaint or protest not more
than ninety (90) days after the complaint or protest is filed.
(b) The board may schedule a hearing on a complaint more than
ninety (90) days after a complaint is filed if all parties to the
complaint agree and the hearing officer approves the delay.
(c) The board shall adopt rules under IC 4-22-2 to establish
procedures for conducting:
(1) expedited hearings requested under section 9(d) of this
chapter; and
(2) discovery.
(d) In a hearing on a protest alleging a violation by a
manufacturer or distributor that adversely affects a dealer, the
manufacturer or distributor has the burden of proof to establish
good cause for the manufacturer's or distributor's action that is the
subject of the protest.
(e) A hearing under this chapter serves to automatically enjoin
the action that is the subject of the protest.
Sec. 12. (a) If the board determines after a hearing under
section 11 of this chapter that a person has violated IC 9-23-3 or
IC 23-2-2.7, the board may impose and collect a civil penalty of not
more than one thousand dollars ($1,000) for each day of violation
and for each act of violation, as determined by the board.
(b) In determining the amount of a penalty under subsection (a),
the board shall consider the following:
(1) The severity of the violation, including any harm to public
safety.
(2) Economic damage to the public.
(3) Economic damage to the prevailing party.
(4) History of violations by the same party.
(5) Attempts to conceal the violation.
(6) The deterrent effect of the penalty.
(c) The board may award or apportion the costs of any action
to one (1) or more parties. A person may offset any penalty
imposed under subsection (a) by any amount apportioned to the
person under this subsection.
(d) All penalties collected under subsection (a) shall be deposited
in the motor vehicle review board administrative fund under
section 15 of this chapter.
Sec. 13. (a) Either party to a protest filed under this chapter
may, not more than thirty (30) days after the date of receipt of the
board's final appealable order, appeal to the court of appeals
under the same terms, conditions, and standards that govern
appeals in ordinary civil actions.
(b) A party that appeals a final ruling of the board shall notify
the board in writing of the party's intent to appeal and request the
board to prepare a record of the board's proceedings. For purposes
of an appeal under this section, a record consists of the following
documents:
(1) A transcript of the oral testimony presented at the hearing.
(2) All exhibits admitted into evidence.
(3) All papers filed with the board, other than briefs or
transcripts of oral arguments.
The appealing party bears the cost of producing the record. The
board may require the appealing party to provide a deposit or
other security before producing the record.
(c) A person may file an appeal under this chapter only after
exhausting all available administrative remedies.
(d) An appeal under this section serves to automatically enjoin
the action that is the subject of the protest from which the appeal
is taken.
Sec. 14. (a) Except as provided in subsection (b), an action
brought under this chapter must be commenced within two (2)
years after the alleged violation occurs. However, the limitation is
tolled for any period during which the alleged violation is
concealed from the party bringing the action. The period between
the alleged violation and the discovery of the alleged violation does
not count toward the two (2) year statute of limitation.
(b) Notwithstanding IC 23-2-2.7-7, if an action against a person
occurs under this chapter during the pendency of any civil,
criminal, or administrative proceeding brought against the person
under any federal or state law or rule, the action must be
commenced within one (1) year of final disposition of the civil,
criminal, or administrative proceeding.
Sec. 15. (a) The motor vehicle review board administrative fund
is established to promote the purposes of this chapter.
(b) The board shall administer the fund. Expenses of
administering the fund shall be paid from money in the fund.
(c) The fund consists of the following:
(1) Filing fees deposited under section 9 of this chapter.
(2) Penalties deposited under section 12 of this chapter.
(3) Money deposited in or appropriated to the fund from any
other source.
(4) Interest that accrues from money in the account.
(d) The treasurer of state shall invest the money in the fund not
currently needed to meet the obligations of the fund in the same
manner as other public money may be invested. Interest that
accrues from these investments shall be deposited in the fund.
(e) Money in the fund at the end of a state fiscal year does not
revert to the state general fund.
(f) Money in the fund is continuously appropriated for the
purposes of the fund.
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 16. (a) It is an unfair
practice for a manufacturer or distributor to sell a motor vehicle for
resale to a person not licensed under this article.
(b) This subsection applies if a dealer sells or leases a motor
vehicle to a customer that resells the motor vehicle or exports the
motor vehicle to a foreign country. A manufacturer or distributor
may not take or threaten to take adverse action or otherwise
discriminate against the dealer unless the dealer knew or
reasonably should have known before the dealer sold or leased the
motor vehicle to the customer that the customer intended to resell
or export the motor vehicle. Titling and registering a motor vehicle
in any state in the name of the customer to whom the dealer sold or
leased the motor vehicle establishes a rebuttable presumption that
the dealer did not know that the customer intended to resell or
export the motor vehicle.
(c) For purposes of subsection (b), adverse actions by a
manufacturer or distributor include the following conduct by a
manufacturer or distributor, whether actual or threatened:
(1) Failing or refusing to allocate, sell, or deliver a motor
vehicle to the dealer.
(2) Discriminating against the dealer in the allocation of
motor vehicles.
(3) Charging back or withholding payments or other
consideration for which a dealer is eligible under a warranty
reimbursement, sales promotion, incentive program, or
contest.
(4) Disqualifying a dealer from participating in a sales
promotion, incentive program, or contest.
(5) Terminating a franchise.
(1) Cancel or terminate a franchise or selling agreement of a franchisee, or fail or refuse to extend or renew a franchise or selling agreement upon the franchise's or selling agreement's expiration, without good cause or notice to the franchisee by certified mail, return receipt requested:
(A) at least ninety (90) days before the cancellation or termination; or
(B) at least ten (10) days before the cancellation or termination if either of the following apply:
(i) The franchisee has abandoned business operations or otherwise failed to conduct sales and service operations during regular business hours for at least seven (7) consecutive business days, unless the abandonment or closure is due to an act of God or another act over which the franchisee has no control.
(ii) The franchisee or another operator of the franchise has been convicted of or pled guilty to an offense punishable by at least three (3) years of imprisonment.
(2) Offer a renewal, replacement, or succeeding franchise or selling agreement that substantially changes or modifies the sales and service obligations, facilities standards, capital requirements, or other terms of the original franchise or agreement of a franchisee without notice to the franchisee by certified mail, return receipt requested, at least ninety (90) days before the expiration or termination of the original franchise or agreement.
Notice provided under this subsection must include a detailed statement setting forth the specific grounds for the proposed action.
(b) For purposes of subsection (a)(1), the following do not constitute good cause:
(1) A change of ownership or executive management of a dealership.
(2) Requiring the appointment of an individual to an executive management position in a dealership.
(3) Ownership of, investment in, participation in the management of, or holding a license for the sale of any line make of new motor vehicles by a franchisee or an owner of an interest in a franchise.
(c) Good cause exists under subsection (a)(1) with respect to all franchisees of a line make if the manufacturer of the line make permanently discontinues the manufacture or assembly of the line make. However, a franchisee is entitled to sell all products in the discontinued line make regardless of the terms of any subsequent franchise or selling agreement.
(d) Not more than thirty (30) days after a franchisee receives notice under subsection (a), the franchisee may protest the proposed action under IC 9-23-1.1-9.
(e) A manufacturer or distributor may not take an action described in subsection (a) while an action against the manufacturer or distributor is pending under IC 9-23-1.1.
(1) the termination, cancellation, or nonrenewal of a franchise between the dealer and the manufacturer or distributor; or
(2) the discontinuance of a line make by the manufacturer or distributor.
(b) Not more than sixty (60) days after a manufacturer or distributor receives a request for payment from a dealer, the manufacturer or distributor shall pay to the dealer the following amounts for items that are in the dealer's inventory or possession at the time of termination, cancellation, nonrenewal, or discontinuance and to which the dealer conveys clear title to the manufacturer or distributor:
(1) For:
(A) current model year motor vehicles; or
(B) immediately preceding model year motor vehicles with less than three hundred (300) miles;
acquired from the manufacturer or distributor, acquisition cost.
(2) For all new, unused, and undamaged parts in original packaging purchased from the manufacturer or distributor, the result of:
(A) one hundred five percent (105%) of the cost listed in the parts catalog in effect at the time of termination, cancellation, nonrenewal, or discontinuance; minus
(B) any allowances authorized by the manufacturer or distributor.
(3) For furnishings purchased by the dealer from the manufacturer or distributor or from a source approved by the manufacturer or distributor, fair market value.
(4) For special tools, equipment, or required computer or special service equipment and software purchased by the dealer during the three (3) years immediately preceding the termination, cancellation, nonrenewal, or discontinuance, fair market value.
(5) For signs bearing a trademark or trade name whose purchase was recommended or required by the manufacturer or distributor, fair market value.
For purposes of this subsection, fair market value is determined on the date of termination, cancellation, nonrenewal, or
discontinuance.
(c) Title in items described in subsection (b) transfers from a
dealer to a manufacturer or distributor on the date of termination,
cancellation, nonrenewal, or discontinuance. The dealer has an
enforceable security interest in the transferred items.
(d) It is an unfair practice for a manufacturer or distributor to
violate this section.
(1) The dealer files for bankruptcy or enters into receivership.
(2) The dealer's license is revoked under IC 9-23-2 or IC 9-23-6.
(3) The dealer is convicted of a crime.
(4) The dealer commits fraud.
(b) Except as provided in subsection (c), and upon termination, cancellation, or nonrenewal, a manufacturer or distributor shall pay a dealer the following amounts:
(1) If the dealer is leasing the dealership facilities from a person other than the manufacturer or distributor, the lesser of:
(A) the total lease payments remaining unpaid on the date of termination, cancellation, or nonrenewal; or
(B) the total annual lease payments for two (2) years;
subject to damages mitigated by the dealer under the terms of the lease.
(2) If the dealer owns the dealership facilities, an amount equal to the reasonable rental value of the facilities for the two (2) year period beginning on the date of termination, cancellation, or nonrenewal.
(c) A manufacturer or distributor may discharge the manufacturer's or distributor's obligations under a lease with a dealer by negotiating with the dealer a lease termination payment, a sublease, or a new lease.
(d) It is an unfair practice for a manufacturer or a distributor to violate this section.
not transfer, sell, or assign the business and assets of a dealership or an
interest in the dealership to another person that contemplates or is
conditioned upon a continuation of the franchise relationship with the
manufacturer or distributor unless the dealer first:
(1) notifies the manufacturer or distributor of the dealer's decision
to make the transfer, assignment, or sale by written notice; and
(2) obtains the approval of the manufacturer or distributor.
The dealer must provide the manufacturer or distributor with
completed application forms and related material information
generally used by necessary for the manufacturer or distributor to
conduct its review of such a proposal, and a copy of all agreements
regarding the proposed transfer, assignment, or sale.
(b) The manufacturer or distributor shall send a letter by certified
mail to the dealer within sixty (60) forty-five (45) days of receipt of the
information specified in subsection (a). The letter must indicate any
disapproval of the transfer, assignment, or sale and must set forth the
material reasons for the disapproval. If the manufacturer or distributor
does not respond by letter within the sixty (60) forty-five (45) day
period, the manufacturer's or distributor's consent to the proposed
transfer, assignment, or sale is considered to have been granted. A
manufacturer or distributor may not unreasonably withhold approval
of a transfer, assignment, or sale.
(c) Subject to subsection (d), a manufacturer or distributor has a
right of first refusal as specified in the franchise agreement to acquire
the new vehicle dealer's assets or ownership if there is a proposed
change of more than fifty percent (50%) of the dealer's ownership or
the transfer of more than fifty percent (50%) of the new vehicle dealer's
assets if all of the following are met:
(1) The manufacturer or distributor notifies the dealer in writing
of its intent to exercise its right of first refusal within the sixty
(60) forty-five (45) day notice limit provided in subsection (b).
(2) The exercise of the right of first refusal will result in the dealer
and the dealer's owners receiving consideration, terms, and
conditions that are either the same as or better than those they
have contracted to receive under the proposed change of more
than fifty percent (50%) of the dealer's ownership or the transfer
of more than fifty percent (50%) of the new vehicle dealer's
assets.
(3) The proposed change of the dealership's ownership or the
transfer of the new vehicle dealer's assets does not involve the
transfer of assets or the transfer or issuance of stock by the dealer
or one (1) or more of the dealer's owners to any of the following:
(A) A designated family member or members including any of the following members of one (1) or more dealer owners:
(i) The spouse.
(ii) A child.
(iii) A grandchild.
(iv) The spouse of a child or a grandchild.
(v) A sibling.
(vi) A parent.
(B) A manager:
(i) employed by the dealer in the dealership during the previous four (4) years; and
(ii) who is otherwise qualified as a dealer operator.
(C) A partnership or corporation controlled by any of the family members described in clause (A).
(D) A trust arrangement established or to be established:
(i) for the purpose of allowing the new vehicle dealer to continue to qualify as such under the manufacturer's or distributor's standards; or
(ii) to provide for the succession of the franchise agreement to designated family members or qualified management in the event of the death or incapacity of the dealer or its principal owner or owners.
(4) Except as otherwise provided in this subsection, the manufacturer or distributor agrees to pay the reasonable expenses, including reasonable attorney's fees, that do not exceed the usual, customary, and reasonable fees charged for similar work done for other clients, and that are incurred by the proposed owner or transferee before the manufacturer's or distributor's exercise of its right of first refusal in negotiating and implementing the contract for the proposed change of the dealer ownership or the transfer of the new vehicle dealer's assets. Payment of expenses and attorney's fees is not required if the dealer has failed to submit an accounting of those expenses within twenty (20) days of the dealer's receipt of the manufacturer's or distributor's written request for such an accounting. An expense accounting may be requested by a manufacturer or distributor before exercising its right of first refusal.
(d) A manufacturer or distributor may not prevent or prohibit a dealer or an officer, a stockholder, or a partner of a dealer from transferring, including by sale, all or part of an interest in a dealership unless:
(1) the transferee would not otherwise qualify for a new motor
vehicle dealer license under IC 9-23-2; or
(2) the manufacturer or distributor determines that the
transferee is not of good moral character or does not meet
existing reasonable capital standards, giving consideration to
the sales and service volume of the dealership and applying
minimum business experience standards in the relevant
market area.
This subsection does not prohibit a manufacturer or distributor
from implementing an affirmative action program or otherwise
complying with federal, state, or local law.
(e) Not more than twenty (20) days after a dealer receives notice
under subsection (b), the dealer may file with the board a protest
(under IC 9-23-1.1) against the disapproval.
(d) (f) Violation of this section by the manufacturer or distributor is
an unfair practice by a manufacturer or distributor.
(1) Require, coerce, or attempt to coerce any new motor vehicle dealer in Indiana to:
(A) change location of the dealership;
(B) make any substantial alterations to the use of franchises; or
(C) make any substantial alterations to the dealership premises or facilities;
if to do so would be unreasonable or would not be justified by current economic conditions or reasonable business considerations. This subdivision does not prevent a manufacturer or distributor from establishing and enforcing reasonable facility requirements, including using materials or supplies that are substantially similar to those required by the manufacturer or distributor.
(2) Require, coerce, or attempt to coerce any new motor vehicle dealer in Indiana to divest its ownership of or management in another line or make of motor vehicles that the dealer has established in its dealership facilities with the prior written approval of the manufacturer or distributor.
(3) Establish or acquire wholly or partially a franchisor owned outlet engaged wholly or partially in a substantially identical business to that of the franchisee within the exclusive territory granted the franchisee by the franchise agreement or, if no
exclusive territory is designated, competing unfairly with the
franchisee within a reasonable market area. A franchisor is not
considered to be competing unfairly if operating:
(A) a business for less than two (2) years;
(B) in a bona fide retail operation that is for sale to any
qualified independent person at a fair and reasonable price; or
(C) in a bona fide relationship in which an independent person
or persons have made a significant investment subject to loss
in the business operation and can reasonably expect to acquire
majority ownership or managerial control of the business on
reasonable terms and conditions.
(4) Require a dealer, as a condition of granting or continuing
a franchise, approving the transfer of ownership or assets of
a new motor vehicle dealer, or approving a successor to a new
motor vehicle dealer to:
(A) construct a new dealership facility;
(B) modify or change the location of an existing dealership;
or
(C) grant the manufacturer or distributor control rights
over any real property owned, leased, controlled, or
occupied by the dealer.
(5) Prohibit a dealer from representing more than one (1) line
make of motor vehicles from the same or a modified facility
if reasonable facilities exist for the combined operations.
(6) Grant only a limited term franchise on the condition of:
(A) constructing, completing, or improving a facility; or
(B) satisfying unreasonable performance standards.
This subdivision shall Subdivisions (3) through (6) do not apply to
recreational vehicle manufacturer franchisors.
(b) A manufacturer or distributor may fail or refuse to offer a benefit program to a dealer if the failure or refusal is reasonably supported by substantially different economic or marketing considerations applicable to dealers in Indiana.
(c) A manufacturer or distributor may offer a dealer a bonus,
rebate, incentive, or other benefit program that is calculated or
paid on a per vehicle basis and is related in part to the expansion,
improvement, remodeling, alteration, or renovation of the dealer's
facility.
(d) If a dealer elects not to participate in a program described
in subsection (c), the dealer is entitled to receive a reasonable
percentage of the benefit offered by the manufacturer or
distributor under the program by complying with all program
eligibility requirements unrelated to the dealer's facility. A
reasonable percentage is not less than eighty percent (80%) of the
total per vehicle benefits offered under the program.
(e) A manufacturer or distributor may not establish Indiana by
itself as a designated zone, region, area, or other designated
territory.
(f) It is an unfair practice for a manufacturer or distributor to
violate this section.
(g) This section does not apply to a recreational vehicle
manufacturer franchisor.
(1) improve the dealer's facilities; or
(2) install signs or other franchisor image elements;
that would result in replacing or substantially altering improvements or image elements that the dealer made or installed during the immediately preceding ten (10) years as required by the manufacturer or distributor.
(b) It is an unfair practice for a manufacturer or distributor to violate this section.
(c) This section does not apply to a recreational vehicle manufacturer franchisor.
(b) For purposes of subsection (a), a manufacturer or distributor has not provided a dealer with a sufficient inventory
unless:
(1) the manufacturer or distributor allocated the inventory, in
an appropriate quantity and product mix, to the dealer in the
dealer's appropriately assigned primary market area such
that the dealer received the inventory before the applicable
performance period established by the manufacturer or
distributor; and
(2) none of the dealer's primary allocation of a vehicle during
the applicable performance period was more than one
hundred twenty percent (120%) of any other primary
allocation of the same vehicle to any other dealer during the
same performance period.
(c) It is an unfair practice for a manufacturer or distributor to
violate this section.
(1) relocation of a new motor vehicle dealer to a location that is not more than two (2) miles from its established place of business; or
(2) reopening or replacement in a relevant market area of a closed dealership that has been closed within the preceding year, if the established place of business of the reopened or replacement dealer is within two (2) miles of the established place of business of the closed dealership.
(b) This section does not apply to a new motor vehicle dealer located in a county having a population of more than one hundred thousand (100,000) if:
(1) the new motor vehicle dealer relocates to a site that is located at a distance greater than the existing distance of another new motor vehicle dealer of the same line make before the relocation; and
(2) the site of the relocation is outside an area that is within a radius of four (4) miles from another new motor vehicle dealer of the same line make.
(c) Before a franchisor enters into a franchise establishing or relocating a new motor vehicle dealer within a relevant market area where the same line make is represented, the franchisor shall give written notice to each new motor vehicle dealer of the same line make in the relevant market area of the franchisor's intention to establish an additional dealer or to relocate an existing dealer within that relevant market area.
(d) Not later than thirty (30) days after:
(1) receiving the notice provided for in subsection (c); or
(2) the end of any appeal procedure provided by the franchisor;
a new motor vehicle dealer may
(e) In determining whether good cause exists for establishing or relocating an additional new motor vehicle dealer for the same line make, the
(1) Permanency of the investment.
(2) Effect on the retail new motor vehicle business and the consuming public in the relevant market area.
(3) Whether it is injurious or beneficial to the public welfare.
(4) Whether the new motor vehicle dealers of the same line make in that relevant market area are providing adequate competition and convenient consumer care for the motor vehicles of that line make in the market area, including the adequacy of motor vehicle sales and qualified service personnel.
(5) Whether the establishment or relocation of the new motor vehicle dealer would promote competition.
(6) Growth or decline of the population and the number of new motor vehicle registrations in the relevant market area.
(7) The effect on the relocating dealer of a denial of its relocation into the relevant market area.
(f) Subsection (b) applies to:
(1) a new motor vehicle dealer that before the effective date of subsection (b) has been engaged in the process of relocating but has not physically relocated to the new intended site by the effective date of subsection (b); or
(2) a new motor vehicle dealer that begins engaging in the process
of relocating on or after the effective date of subsection (b).
(g) This section does not prohibit a manufacturer or dealer from
implementing an affirmative action program or otherwise
complying with federal, state, or local law.
(b) Any uncorrected damage or any corrected damage exceeding four percent (4%) of the manufacturer's suggested retail price (as defined in 26 U.S.C. 4216), as measured by retail repair costs, must be disclosed in writing before delivery to an ultimate purchaser.
(1) a person found to have violated this article or a rule or order of the secretary of state issued under this article in a proceeding under IC 9-23-1.1; or
(2) a civil penalty imposed by the motor vehicle review board under IC 9-23-1.1-12.
(b) A person who violates this article or a rule or order of the secretary of state issued under this article is subject to a civil penalty of not less than fifty dollars ($50) and not more than one thousand dollars ($1,000) for each day of violation and for each act of violation, as determined by the court. All civil penalties recovered under this article shall be paid to the state and deposited into the securities division enforcement account established under IC 23-19-6-1(f).
and IC 23-2-2.5-1(a)(3) and any agreement, including related
ancillary agreements, addenda, or both, meeting the provisions of
IC 23-2-2.5-1, clauses (a) (1) and (2) IC 23-2-2.5-1(a)(1) and
IC 23-2-2.5-1(a)(2) which relates to the business of selling
automobiles and/or trucks and the business of selling gasoline and/or
oil primarily for use in vehicles with or without the sale of accessory
items.
(1) agreements entered into, amended, altered, modified, extended, or renewed; or
(2) an act or a practice occurring;
after July 1, 1976.
(b) A franchisee who is a dealer (as defined in IC 9-13-2-42) may allege a violation of this chapter by filing a protest under IC 9-23-1.1.
