Bill Text: NY S06797 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to automobile manufacturers and unfair practices by franchisors.
Spectrum: Partisan Bill (Republican 9-0)
Status: (Introduced - Dead) 2014-06-02 - SUBSTITUTED BY A7844B [S06797 Detail]
Download: New_York-2013-S06797-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
6797--A
I N S E N A T E
March 11, 2014
___________
Introduced by Sen. LIBOUS -- read twice and ordered printed, and when
printed to be committed to the Committee on Transportation -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee
AN ACT to amend the vehicle and traffic law, in relation to automobile
manufacturers and business practices by franchisors
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 5 of section 415 of the vehicle and traffic law
2 is amended by adding a new paragraph b-2 to read as follows:
3 B-2. A STATEMENT INDICATING ANY INTEREST IN THE APPLICANT'S FRANCHISE
4 ENTITY BY A PERSON OR ENTITY DESCRIBED IN PARAGRAPH F OF SUBDIVISION
5 SEVEN OF THIS SECTION.
6 S 2. Paragraph f of subdivision 7 of section 415 of the vehicle and
7 traffic law, as added by chapter 490 of the laws of 2008, is amended to
8 read as follows:
9 f. EXCEPT AS PROVIDED IN PARAGRAPH (BB) OF SUBDIVISION TWO OF SECTION
10 FOUR HUNDRED SIXTY-THREE OF THIS TITLE AND SUBPARAGRAPH (III) OF THIS
11 PARAGRAPH:
12 (I) The commissioner shall not issue any certificate of registration
13 authorized by this section to any franchisor, MANUFACTURER, DISTRIBUTOR,
14 DISTRIBUTOR BRANCH OR FACTORY BRANCH, as such [term is] TERMS ARE
15 defined in section four hundred sixty-two of this title, OR TO ANY
16 SUBSIDIARY, AFFILIATE OR CONTROLLED ENTITY THEREOF, except that the
17 commissioner may renew such certificate previously issued or otherwise
18 approved to operate to a franchisor prior to [May second, two thousand
19 two] JULY FIRST, TWO THOUSAND SIX. NOTHING IN THIS SECTION SHALL
20 PRECLUDE THE ESTABLISHMENT OF SUCH FACILITIES NECESSARY TO CONTINUE THE
21 ONGOING OPERATION OF ANY HOLDER OF A CERTIFICATE OF REGISTRATION AUTHOR-
22 IZED BY THIS SECTION OR OTHERWISE APPROVED TO OPERATE TO A FRANCHISOR
23 PROVIDED SUCH ORIGINAL CERTIFICATE OR APPROVAL WAS GRANTED PRIOR TO JULY
24 FIRST, TWO THOUSAND SIX.
25 (II) ON OR AFTER THE EFFECTIVE DATE OF THIS SUBPARAGRAPH, THE COMMIS-
26 SIONER SHALL NOT ISSUE ANY CERTIFICATE OF REGISTRATION, OR RENEW ANY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11010-08-4
S. 6797--A 2
1 CERTIFICATE, UNLESS THE ORIGINAL CERTIFICATE WAS ISSUED BEFORE JULY
2 FIRST, TWO THOUSAND SIX, TO ANY MOTOR VEHICLE DEALER IN WHICH A FRANCHI-
3 SOR, MANUFACTURER, DISTRIBUTOR, DISTRIBUTOR BRANCH OR FACTORY BRANCH, AS
4 SUCH TERMS ARE DEFINED IN SECTION FOUR HUNDRED SIXTY-TWO OF THIS TITLE,
5 OR ANY SUBSIDIARY, AFFILIATE OR CONTROLLED ENTITY THEREOF, HAS ACQUIRED,
6 OR POSSESSES, A CONTROLLING INTEREST IN THE FRANCHISE ENTITY EXCEPT:
7 (1) WHEN OPERATING SUCH FRANCHISE FOR A TEMPORARY PERIOD, NOT TO
8 EXCEED ONE YEAR, DURING THE TRANSITION FROM ONE OWNER OF THE MOTOR VEHI-
9 CLE DEALERSHIP TO ANOTHER, PROVIDED, HOWEVER, THAT SUCH TEMPORARY PERIOD
10 MAY BE EXTENDED ONCE FOR AN ADDITIONAL PERIOD NOT TO EXCEED ONE YEAR FOR
11 GOOD CAUSE. PROVIDED THAT FOR FRANCHISORS OF HOUSE COACHES, THE PERIOD
12 OF TEMPORARY OWNERSHIP OF A FRANCHISED HOUSE COACH DEALERSHIP MAY BE
13 EXTENDED IN ONE YEAR INCREMENTS FOR GOOD CAUSE SHOWN, EXCEPT THAT THE
14 AGGREGATE OF SUCH EXTENSIONS SHALL NOT EXCEED FIVE YEARS; OR
15 (2) WHEN OPERATING SUCH FRANCHISE TEMPORARILY UNDER A PLAN WITH AN
16 INDEPENDENT INDIVIDUAL WHO IS OBLIGATED TO MAKE A SIGNIFICANT INVESTMENT
17 IN THE DEALERSHIP THAT IS SUBJECT TO LOSS AND HAS AN OWNERSHIP INTEREST
18 OR EXPECTS TO ACQUIRE FULL OWNERSHIP IN A REASONABLE PERIOD UNDER
19 REASONABLE TERMS AND CONDITIONS, PROVIDED THAT A REASONABLE PERIOD SHALL
20 BE PRESUMED TO NOT EXCEED EIGHT YEARS.
21 (III) NOTWITHSTANDING ANY OTHER PROVISION OF THIS PARAGRAPH OR ANY
22 PROVISION OF PARAGRAPH (BB) OF SUBDIVISION TWO OF SECTION FOUR HUNDRED
23 SIXTY-THREE OF THIS TITLE, THE COMMISSIONER MAY RENEW ANY CERTIFICATE OF
24 REGISTRATION THAT WAS ISSUED TO A FRANCHISOR, MANUFACTURER, DISTRIBUTOR,
25 DISTRIBUTOR BRANCH OR FACTORY BRANCH, AS SUCH TERMS ARE DEFINED IN
26 SECTION FOUR HUNDRED SIXTY-TWO OF THIS TITLE, OR TO ANY SUBSIDIARY,
27 AFFILIATE OR CONTROLLED ENTITY THEREOF, PRIOR TO MARCH TWENTY-SIXTH, TWO
28 THOUSAND FOURTEEN; PROVIDED, HOWEVER, THAT SUCH FRANCHISOR, MANUFACTUR-
29 ER, DISTRIBUTOR, DISTRIBUTOR BRANCH OR FACTORY BRANCH, OR ANY SUBSID-
30 IARY, AFFILIATE OR CONTROLLED ENTITY THEREOF, IS A MANUFACTURER THAT
31 MANUFACTURES OR ASSEMBLES EXCLUSIVELY ZERO EMISSIONS VEHICLES, OR IS A
32 SUBSIDIARY, AFFILIATE, OR CONTROLLED ENTITY OF SUCH A MANUFACTURER; AND
33 PROVIDED FURTHER THAT A CONTROLLING INTEREST IN SUCH ORIGINAL FRANCHI-
34 SOR, MANUFACTURER, DISTRIBUTOR, DISTRIBUTOR BRANCH OR FACTORY BRANCH OR
35 ANY SUBSIDIARY, AFFILIATE OR CONTROLLED ENTITY WAS NOT TRANSFERRED, SOLD
36 OR CONVEYED TO ANOTHER PERSON OR ENTITY, OTHER THAN TO A SUBSIDIARY,
37 AFFILIATE OR CONTROLLED ENTITY OF SUCH FRANCHISOR, MANUFACTURER,
38 DISTRIBUTOR, DISTRIBUTOR BRANCH OR FACTORY BRANCH. FOR PURPOSES OF THIS
39 PARAGRAPH, ZERO EMISSION VEHICLES SHALL HAVE THE SAME MEANING AS UNDER
40 PART TWO HUNDRED EIGHTEEN OF TITLE SIX OF THE NEW YORK CODE OF RULES AND
41 REGULATIONS.
42 S 3. Subdivision 1 of section 463 of the vehicle and traffic law is
43 amended by adding a new paragraph (e) to read as follows:
44 (E) TO SELL, OR SELL EXCLUSIVELY AN EXTENDED SERVICE CONTRACT,
45 EXTENDED MAINTENANCE PLAN OR SIMILAR PRODUCT, INCLUDING, BUT NOT LIMITED
46 TO, GAP PRODUCTS OFFERED, ENDORSED OR SPONSORED BY THE FRANCHISOR BY THE
47 FOLLOWING MEANS:
48 (1) BY A STATEMENT MADE BY THE FRANCHISOR THAT FAILURE TO DO SO WILL
49 SUBSTANTIALLY AND ADVERSELY IMPACT THE DEALER; OR
50 (2) BY A PROVISION IN A FRANCHISE AGREEMENT THAT THE DEALER SELL, OR
51 SELL EXCLUSIVELY AN EXTENDED SERVICE CONTRACT, EXTENDED MAINTENANCE PLAN
52 OR SIMILAR PRODUCT OFFERED, ENDORSED OR SPONSORED BY THE FRANCHISOR; OR
53 (3) BY MEASURING THE DEALER'S PERFORMANCE UNDER THE FRANCHISE BASED ON
54 THE SALE OF EXTENDED SERVICE CONTRACTS, EXTENDED MAINTENANCE PLANS OR
55 SIMILAR PRODUCTS OFFERED, ENDORSED OR SPONSORED BY THE MANUFACTURER OR
56 DISTRIBUTOR; OR
S. 6797--A 3
1 (4) BY REQUIRING THE DEALER TO EXCLUSIVELY PROMOTE THE SALE OF
2 EXTENDED SERVICE CONTRACTS, EXTENDED MAINTENANCE PLANS OR SIMILAR
3 PRODUCTS OFFERED, ENDORSED OR SPONSORED BY THE FRANCHISOR.
4 NOTHING IN THIS SECTION SHALL PROHIBIT A FRANCHISOR FROM:
5 (A) PROVIDING INCENTIVES TO A DEALER THAT MAKES THE VOLUNTARY DECISION
6 TO SELL OR SELL EXCLUSIVELY AN EXTENDED SERVICE CONTRACT, EXTENDED MAIN-
7 TENANCE PLAN OR SIMILAR PRODUCT, INCLUDING, BUT NOT LIMITED TO, GAP
8 PRODUCTS OFFERED, ENDORSED OR SPONSORED BY THE FRANCHISOR, OR
9 (B) REQUIRING THAT A DEALER THAT SELLS AN EXTENDED SERVICE CONTRACT,
10 EXTENDED MAINTENANCE PLAN, OR SIMILAR PRODUCT THAT IS NOT OFFERED,
11 ENDORSED OR SPONSORED BY THE FRANCHISOR, DISCLOSE TO THE CONSUMER THE
12 DISCLOSURES REQUIRED UNDER SECTION SEVEN THOUSAND NINE HUNDRED FIVE OF
13 THE INSURANCE LAW, AND A SEPARATE STATEMENT, ACKNOWLEDGED BY THE CONSUM-
14 ER, THAT THE EXTENDED SERVICE CONTRACT, EXTENDED MAINTENANCE PLAN OR
15 SIMILAR PRODUCT IS NOT OFFERED, ENDORSED OR SPONSORED BY THE FRANCHISOR,
16 IF THAT IS THE CASE.
17 S 4. Paragraph (b) of subdivision 2 of section 463 of the vehicle and
18 traffic law, as amended by chapter 490 of the laws of 2008, is amended
19 to read as follows:
20 (b) To directly or indirectly coerce or attempt to coerce any fran-
21 chised motor vehicle dealer to enter into any agreement with such fran-
22 chisor or officer, agent or other representative thereof, or to do any
23 other act prejudicial to the monetary interests or property rights of
24 said dealer by threatening to [cancel any unexpired contractual agree-
25 ment existing between such franchisor and] TERMINATE said dealer.
26 Provided, however, that good faith notice to any franchised motor vehi-
27 cle dealer of said dealer's violation of any terms or provisions of such
28 franchise shall not constitute a violation of this article.
29 S 5. Paragraph (c) of subdivision 2 of section 463 of the vehicle and
30 traffic law, as amended by chapter 490 of the laws of 2008, is amended
31 to read as follows:
32 (c) (1) To condition the renewal or extension of a franchise on a
33 franchised motor vehicle dealer's substantial renovation of the dealer's
34 place of business or on the construction, purchase, acquisition or
35 rental of a new place of business by the franchised motor vehicle dealer
36 unless the franchisor has advised the franchised motor vehicle dealer in
37 writing of its intent to impose such a condition within a reasonable
38 time prior to the effective date of the proposed date of renewal or
39 extension (but in no case less than one hundred eighty days) and
40 provided the franchisor demonstrates the need for such change in the
41 place of business and the reasonableness of such demand in view of the
42 need to service the public and the economic conditions existing in the
43 automobile industry at the time such action would be required of the
44 franchised motor vehicle dealer. As part of any such condition the fran-
45 chisor shall agree, in writing, to supply the dealer with a reasonable
46 quantity and mix of additional new motor vehicles which, as determined
47 by a reasonable analysis of market conditions, are projected to meet the
48 sales levels necessary to support the increased overhead incurred by the
49 franchised motor vehicle dealer by reason of such renovation,
50 construction, purchase, acquisition or rental of a new place of busi-
51 ness.
52 (2) TO REQUIRE A FRANCHISED MOTOR VEHICLE DEALER TO PURCHASE GOODS,
53 BUILDING MATERIALS, OR SERVICES FOR THE DEALER'S PLACE OF BUSINESS,
54 INCLUDING, BUT NOT LIMITED TO, OFFICE FURNITURE, DESIGN FEATURES, FLOOR-
55 ING, AND WALL COVERINGS, FROM A VENDOR CHOSEN BY THE FRANCHISOR IF
56 GOODS, BUILDING MATERIALS, OR SERVICES OF SUBSTANTIALLY SIMILAR QUALITY
S. 6797--A 4
1 AND DESIGN ARE AVAILABLE FROM OTHER SOURCES, PROVIDED, HOWEVER, THAT THE
2 GOODS OR BUILDING MATERIALS ARE NOT SUBJECT TO THE FRANCHISOR'S INTEL-
3 LECTUAL PROPERTY OR TRADEMARK RIGHTS AND THE FRANCHISED MOTOR VEHICLE
4 DEALER HAS RECEIVED THE FRANCHISOR'S APPROVAL, WHICH APPROVAL MAY NOT BE
5 UNREASONABLY WITHHELD. NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO
6 ALLOW A FRANCHISED MOTOR VEHICLE DEALER TO IMPAIR OR ELIMINATE A
7 FRANCHISOR'S INTELLECTUAL PROPERTY OR TRADEMARK RIGHTS AND TRADE DRESS
8 USAGE GUIDELINES, OR TO IMPAIR OTHER INTELLECTUAL PROPERTY INTERESTS
9 OWNED OR CONTROLLED BY THE FRANCHISOR.
10 (3) EXCEPT AS NECESSARY TO COMPLY WITH A HEALTH OR SAFETY LAW, OR TO
11 COMPLY WITH A TECHNOLOGY REQUIREMENT, WHICH IS NECESSARY TO SELL OR
12 SERVICE A MOTOR VEHICLE THAT THE FRANCHISED MOTOR VEHICLE DEALER IS
13 AUTHORIZED OR LICENSED BY THE FRANCHISOR TO SELL OR SERVICE, TO REQUIRE
14 A FRANCHISED MOTOR VEHICLE DEALER TO CONSTRUCT A NEW DEALER FACILITY OR
15 SUBSTANTIALLY ALTER OR REMODEL AN EXISTING DEALER FACILITY BEFORE THE
16 DATE THAT IS TEN YEARS AFTER THE DATE THE CONSTRUCTION OF THE NEW DEALER
17 FACILITY OR SUCH ALTERATION OR REMODELING AT THAT LOCATION WAS COMPLETED
18 AND SHALL CONTINUE WITH ANY SUCCESSOR OWNER PROVIDED SUCH OWNER HAS BEEN
19 DESIGNATED AND APPROVED BY THE FRANCHISOR IN THE FRANCHISE AGREEMENT,
20 AND SUCH CONSTRUCTION, ALTERATION OR REMODELING SUBSTANTIALLY COMPLIED
21 WITH THE FRANCHISOR'S BRAND IMAGE STANDARDS OR PLANS THAT THE FRANCHISOR
22 PROVIDED AT THE TIME THE CONSTRUCTION, ALTERATION, OR REMODELING WAS
23 COMPLETED.
24 (I) AS USED IN THIS SUBPARAGRAPH, "SUBSTANTIALLY ALTER":
25 (A) REFERS TO AN ALTERATION THAT HAS A MAJOR IMPACT ON THE ARCHITEC-
26 TURAL FEATURES, CHARACTERISTICS, OR INTEGRITY OF A STRUCTURE OR LOT; AND
27 (B) DOES NOT INCLUDE ROUTINE MAINTENANCE, SUCH AS INTERIOR PAINTING,
28 REASONABLY NECESSARY TO KEEP A DEALERSHIP FACILITY IN ATTRACTIVE CONDI-
29 TION.
30 (II) NOTHING IN THIS PARAGRAPH SHALL PROHIBIT A FRANCHISOR FROM:
31 (A) CONTINUING A FACILITY IMPROVEMENT PROGRAM THAT IS IN EFFECT AS OF
32 THE EFFECTIVE DATE OF THIS PARAGRAPH WITH MORE THAN ONE FRANCHISED MOTOR
33 VEHICLE DEALER IN THE STATE OR TO RENEWING OR MODIFYING SUCH PROGRAM; OR
34 (B) PROVIDING LUMP SUM OR REGULARLY-SCHEDULED PAYMENTS TO ASSIST A
35 FRANCHISED MOTOR VEHICLE DEALER IN MAKING A FACILITY IMPROVEMENT,
36 INCLUDING CONSTRUCTION, ALTERATION OR REMODELING, OR INSTALLING SIGNAGE
37 OR A FRANCHISOR IMAGE ELEMENT;
38 (C) PROVIDING REIMBURSEMENT TO A FRANCHISED MOTOR VEHICLE DEALER ON
39 REASONABLE, WRITTEN TERMS FOR A PORTION OF THE FRANCHISED MOTOR VEHICLE
40 DEALER'S COST OF MAKING A FACILITY IMPROVEMENT, INCLUDING CONSTRUCTION,
41 ALTERATION OR REMODELING, THE PURCHASE OF GOODS, BUILDING MATERIALS OR
42 SERVICES, OR INSTALLING SIGNAGE OR A FRANCHISOR IMAGE ELEMENT.
43 (4) TO DENY A FRANCHISED MOTOR VEHICLE DEALER A FRANCHISOR IMAGE
44 ELEMENT PAYMENT, INCENTIVE OR ALLOWANCE IF THE FRANCHISED MOTOR VEHICLE
45 DEALER, WITH THE FRANCHISOR'S APPROVAL, BEGAN CONSTRUCTION, ALTERATIONS
46 OR REMODELING INTENDED TO COMPLY WITH THE FRANCHISOR'S IMAGE ELEMENT
47 PROGRAM BEFORE THE FRANCHISOR SUBSTANTIALLY CHANGED OR TERMINATED THE
48 PROGRAM PRIOR TO THE PROGRAM'S SCHEDULED ENDING DATE PROVIDED THE DEALER
49 IS OTHERWISE ELIGIBLE FOR PROGRAM PAYMENTS AND PROVIDED THAT AFTER SUCH
50 SUBSTANTIAL CHANGE OR TERMINATION, THE COMPENSATION PAYABLE TO THE DEAL-
51 ER SHALL BE LIMITED TO IMAGE ELEMENT PAYMENTS, INCENTIVES OR ALLOWANCES
52 THAT THE DEALER WOULD HAVE EARNED THROUGH PROGRAM'S SCHEDULED ENDING
53 DATE, PROVIDED THAT THE DEALER COMPLIES WITH ALL PROGRAM REQUIREMENTS,
54 AND PROVIDED, FURTHER, THAT SUCH PROGRAM OR PAYMENTS ARE NOT OTHERWISE
55 PROHIBITED BY LAW OR REGULATION.
S. 6797--A 5
1 (5) TO REQUIRE OR ATTEMPT TO REQUIRE A FRANCHISED MOTOR VEHICLE DEALER
2 TO ESTABLISH OR MAINTAIN EXCLUSIVE DEALERSHIP FACILITIES UNLESS JUSTI-
3 FIED BY CURRENT AND REASONABLY EXPECTED FUTURE ECONOMIC CONDITIONS
4 EXISTING IN THE DEALER'S RELEVANT MARKET AREA AT THE TIME THE REQUEST
5 FOR EXCLUSIVE FACILITIES IS MADE; PROVIDED THAT THE FOREGOING SHALL NOT
6 RESTRICT THE TERMS AND CONDITIONS OF ANY AGREEMENT FOR WHICH THE DEALER
7 HAS VOLUNTARILY ACCEPTED VALUABLE CONSIDERATION SEPARATE FROM THE FRAN-
8 CHISED MOTOR VEHICLE DEALER'S RIGHT TO SELL AND SERVICE MOTOR VEHICLES
9 FOR THE FRANCHISOR. THE FACT THAT LOCAL MARKET SHARE, FACING COMPETITIVE
10 BRAND DEALERSHIPS HAVE EXCLUSIVE DEALERSHIP FACILITIES SHALL CONSTITUTE
11 EVIDENCE THAT CURRENT ECONOMIC CONDITIONS MAY JUSTIFY THE REQUIREMENT TO
12 ESTABLISH AND MAINTAIN EXCLUSIVE DEALERSHIP FACILITIES.
13 (6) TO REQUIRE A SITE CONTROL PROVISION REGARDING THE DEALER'S PLACE
14 OF BUSINESS TO SURVIVE OR CONTINUE AFTER THE TERMINATION OF SUCH DEAL-
15 ER'S FRANCHISE IF THE TERMINATION IS DUE TO THE DISCONTINUATION OF THE
16 LINE-MAKE THAT WAS THE SUBJECT OF THE AGREEMENT.
17 S 6. Paragraph (o) of subdivision 2 of section 463 of the vehicle and
18 traffic law, as amended by chapter 490 of the laws of 2008, is amended
19 to read as follows:
20 (o) (1) Upon a termination of a franchise by a franchisor or fran-
21 chised motor vehicle dealer under this article, to refuse to accept a
22 return of new and unused current model motor vehicle inventory which has
23 been acquired from the franchisor, new and unused noncurrent model motor
24 vehicle inventory which has been acquired from the franchisor within one
25 hundred [twenty] EIGHTY days of the effective date of the termination;
26 supplies, parts, equipment, SIGNAGE, SPECIAL TOOLS, and furnishings
27 purchased from the franchisor or its approved sources [and special
28 tools]. The obligation of the franchisor, EXCEPT WITH RESPECT TO SIGNAGE
29 shall be limited to the repurchase of the above property which is unal-
30 tered and undamaged, in good and useable condition, and, in the case of
31 supplies, parts and equipment to those items which are currently listed
32 in the franchisor's supplies and parts list. IN THE CASE OF SIGNAGE,
33 THE FRANCHISOR SHALL BE OBLIGATED TO REPURCHASE ANY FRANCHISOR REQUIRED
34 SIGNAGE, PURCHASED WITHIN THE FIVE YEARS PRECEDING TERMINATION AND WHICH
35 IS IN GOOD AND USEABLE CONDITION LESS DEPRECIATION AS SET FORTH IN THE
36 INTERNAL REVENUE CODE OF ONE-FIFTEENTH OF THE INITIAL COST PER YEAR
37 STARTING THE YEAR FOLLOWING THE DEALER'S ACQUISITION OF THE ITEM.
38 Furthermore, the obligation of the franchisor to repurchase supplies
39 upon a termination, cancellation or nonrenewal by a franchised motor
40 vehicle dealer shall be limited to supplies mandated by the franchisor.
41 Parts eligible for repurchase shall include parts which have been renum-
42 bered in the current parts list but which are identical in design and
43 material to the currently numbered part. The return rights afforded the
44 franchised motor vehicle dealer under the provisions of the paragraph
45 shall be in addition to those, if any, provided in the franchise agree-
46 ment.
47 (2) The franchisor shall pay fair and reasonable compensation for the
48 above described property upon repurchase. In the case of new motor vehi-
49 cle inventory, accessories and parts, fair and reasonable compensation
50 shall in no instance be less than the net acquisition price paid by the
51 franchised motor vehicle dealer to the franchisor or its approved sourc-
52 es. Upon a termination of a franchise by a franchisor, within thirty
53 days of such termination, the franchisor shall send to the franchised
54 motor vehicle dealer instructions on the methodology by which the fran-
55 chised motor vehicle dealer must ship the above described property to
56 the franchisor; the franchisor shall then remit payment for such proper-
S. 6797--A 6
1 ty to the franchised motor vehicle dealer within sixty days after
2 receipt of such property.
3 (3) Upon a termination of a franchise by a franchised motor vehicle
4 dealer where the franchise consists primarily of the distribution and
5 sale of house coaches, the franchisor's repurchase obligations set forth
6 in this paragraph shall not apply.
7 (4) IN ADDITION TO ANY OTHER REQUIREMENTS OF THIS SUBDIVISION, IN THE
8 EVENT A FRANCHISOR TERMINATES A FRANCHISE DUE TO TERMINATION OF A LINE
9 MAKE, THE FRANCHISOR SHALL COMPENSATE THE DEALER FOR ANY FRANCHISOR
10 REQUIRED FACILITY CONSTRUCTION, ALTERATIONS OR REMODELING, OR
11 CONSTRUCTION, ALTERATIONS OR REMODELING REQUIRED FOR PARTICIPATION IN
12 ANY INCENTIVE PROGRAMS WHICH WERE COMPLETED BY THE DEALER WITHIN THREE
13 YEARS OF THE DATE THE FRANCHISOR ANNOUNCED THE TERMINATION OF THE LINE
14 MAKE. FOR THE PURPOSES OF THIS SECTION, COMPLETION SHALL BE DEEMED TO
15 OCCUR AT THE LATER OF THE FRANCHISOR'S FINAL APPROVAL OF THE
16 CONSTRUCTION, ALTERATIONS, OR REMODELING OR THE ISSUANCE OF A CERTIF-
17 ICATE OF OCCUPANCY. THE COMPENSATION REQUIRED UNDER THIS SECTION SHALL
18 BE IN AN AMOUNT EQUAL TO THE DEALER'S COST FOR THE FACILITY UPGRADES
19 LESS ANY ASSISTANCE PROVIDED TO THE DEALER WITHIN THREE YEARS OF THE
20 DATE THE FRANCHISOR ANNOUNCED THE TERMINATION OF THE LINE MAKE BY THE
21 MANUFACTURER OR DISTRIBUTOR, AND LESS THE AMOUNT FOR DEPRECIATION AS SET
22 FORTH IN INTERNAL REVENUE CODE OF ONE THIRTY-NINTH OF THE TOTAL INITIAL
23 COST OF SUCH CONSTRUCTION, ALTERATIONS, OR REMODELING PER YEAR STARTING
24 THE YEAR FOLLOWING THE DEALER'S COMPLETION OF THE FACILITY CONSTRUCTION,
25 ALTERATIONS, OR REMODELING.
26 (5) IN ADDITION TO THE REQUIREMENTS OF SUBPARAGRAPH FOUR OF THIS PARA-
27 GRAPH, IN THE EVENT A FRANCHISOR TERMINATES A FRANCHISE DUE TO A TERMI-
28 NATION OF A LINE MAKE, THE FRANCHISOR SHALL COMPENSATE THE DEALER IN AN
29 AMOUNT EQUAL TO THE AMOUNT REMAINING ON THE TERMINATED DEALER'S MANAGE-
30 MENT COMPUTER SYSTEM LEASE OR CONTRACT, OR ONE YEAR OF LEASE PAYMENTS,
31 WHICHEVER IS LESS IF THE DEALER MANAGEMENT COMPUTER SYSTEM WILL NO LONG-
32 ER BE UTILIZED AS A RESULT OF THE TERMINATION AND THE FRANCHISOR
33 REQUIRED THE DEALER TO UTILIZE THE PARTICULAR DEALER MANAGEMENT COMPUTER
34 SYSTEM.
35 S 7. Paragraph (z) of subdivision 2 of section 463 of the vehicle and
36 traffic law, as amended by chapter 490 of the laws of 2008, is amended
37 to read as follows:
38 (z) To [charge back or otherwise hold liable a franchised motor vehi-
39 cle dealer for sales incentives or charges related to a] REFUSE TO ALLO-
40 CATE, SELL, OR DELIVER MOTOR VEHICLES, TO CHARGE BACK OR WITHHOLD
41 PAYMENTS OR OTHER THINGS OF VALUE FOR WHICH THE FRANCHISEE IS OTHERWISE
42 ELIGIBLE, OR TO TAKE OR THREATEN TO TAKE ANY ADVERSE ACTION AGAINST A
43 FRANCHISED MOTOR VEHICLE DEALER, IN CONNECTION WITH OR AS A RESULT OF
44 ANY new motor vehicle sold by the franchised motor vehicle dealer and
45 subsequently exported, providing such dealer can demonstrate that he
46 exercised due diligence and that the sale was made in good faith [and
47 without knowledge] INCLUDING THAT THE DEALER DID NOT KNOW NOR REASONABLY
48 SHOULD HAVE KNOWN of the purchaser's intention to export the motor vehi-
49 cle[, or that such dealer reasonably relied on approvals from the fran-
50 chisor to complete a sale]. A franchised motor vehicle dealer which
51 causes a new motor vehicle to be registered in this state or in a
52 foreign state and causes to be collected the appropriate sales and use
53 tax, OR THAT REASONABLY RELIED ON A FRANCHISOR TO COMPLETE A SALE shall
54 be presumed to have exercised GOOD FAITH AND due diligence. PRIOR TO
55 TAKING AN ADVERSE ACTION, INCLUDING A CHARGE BACK, AS A RESULT OF AN
56 EXPORT, A FRANCHISOR SHALL PROVIDE WRITTEN NOTICE TO THE FRANCHISED
S. 6797--A 7
1 MOTOR VEHICLE DEALER OF THE ADVERSE ACTION, AND, IF A CHARGE BACK, THE
2 SPECIFIC AMOUNT OF THE CHARGE BACK, AND THE VEHICLE OR VEHICLES AT
3 ISSUE. A DEALER SHALL NOT BE LIABLE FOR THE DELIVERY OF ANY VEHICLE SOLD
4 THROUGH A FRANCHISOR'S FLEET PROGRAM FOR ANY SUCH DELIVERY IN WHICH THE
5 SALE OR LEASE WAS NOT INITIATED OR NEGOTIATED BY THE DEALER AND ITS
6 FUNCTION WAS TO PROVIDE DELIVERY ON BEHALF OF THE FRANCHISOR.
7 S 8. Subparagraph 2 of paragraph (bb) of subdivision 2 of section 463
8 of the vehicle and traffic law, as amended by chapter 490 of the laws of
9 2008, is amended to read as follows:
10 (2) when operating such franchise temporarily under a plan with an
11 independent individual who is obligated to make a significant investment
12 in the dealership that is subject to loss and has an ownership interest
13 or expects to acquire full ownership in a reasonable period under
14 reasonable terms and conditions, provided that a reasonable period shall
15 be presumed to not exceed eight years; PROVIDED, HOWEVER, THAT THE
16 EXCEPTION PROVIDED IN THIS SUBPARAGRAPH SHALL NOT APPLY TO ANY FRANCHI-
17 SOR, MANUFACTURER, DISTRIBUTOR, DISTRIBUTOR BRANCH OR FACTORY BRANCH
18 THAT HOLDS A CERTIFICATE OR REGISTRATION PURSUANT TO SUBPARAGRAPH (III)
19 OF PARAGRAPH F OF SUBDIVISION SEVEN OF SECTION FOUR HUNDRED FIFTEEN OF
20 THIS TITLE.
21 S 9. Subdivision 2 of section 463 of the vehicle and traffic law is
22 amended by adding three new paragraphs (ii), (jj) and (kk) to read as
23 follows:
24 (II) TO ALLOCATE NEW MOTOR VEHICLES TO A FRANCHISED MOTOR VEHICLE
25 DEALER BASED ON A PROGRAM THAT DIFFERENTIATES BETWEEN VEHICLE SALES BY A
26 FRANCHISED MOTOR VEHICLE DEALER WITHIN A TERRITORY OR GEOGRAPHIC AREA
27 ASSIGNED TO SUCH DEALER AND VEHICLE SALES OUTSIDE OF SUCH TERRITORY OR
28 GEOGRAPHIC AREA.
29 (JJ) TO UTILIZE A DISCRIMINATORY, UNREASONABLE, ARBITRARY OR UNFAIR
30 SYSTEM OF ALLOCATION OF NEW MOTOR VEHICLE INVENTORY. A FRANCHISOR SHALL
31 COMMUNICATE ITS SYSTEM OF ALLOCATION IN WRITING IN A CLEAR AND CONCISE
32 MANNER TO ALL SAME LINE-MAKE DEALERS LOCATED IN THIS STATE.
33 (KK) TO REFUSE TO DISCLOSE TO ANY FRANCHISED MOTOR VEHICLE DEALER THE
34 MANNER AND MODE OF DISTRIBUTION OF VEHICLES IN THE FRANCHISED MOTOR
35 VEHICLE DEALER'S LINE MAKE WITHIN THE STATE, AND AN EXPLANATION OF THE
36 ALLOCATION SYSTEM, INCLUDING THE METHODOLOGY USED, IN A CLEAR AND
37 COMPREHENSIBLE FORM.
38 S 10. Subdivision 1 of section 465 of the vehicle and traffic law, as
39 amended by chapter 490 of the laws of 2008, is amended to read as
40 follows:
41 1. Every franchisor shall properly fulfill any warranty agreement
42 and/or franchisor's service contract and shall compensate each of its
43 franchised motor vehicle dealers for warranty parts and labor in amounts
44 which reflect [fair and] reasonable compensation for such work. All
45 warranty claims and/or claims under a franchisor's service contract made
46 by franchised motor vehicle dealers shall be paid within thirty days
47 following their approval. For parts reimbursement, other than compo-
48 nents, systems, fixtures, appliances, furnishings, accessories and
49 features of a house coach that are designed, used and maintained prima-
50 rily for nonvehicular residential purposes, and for labor reimbursement,
51 [fair and] reasonable compensation shall not be less than the price and
52 rate charged by the franchised motor vehicle dealer for like services to
53 non-warranty and/or non-service contract customers. For purposes of this
54 section, the price and rate charged by the franchised motor vehicle
55 dealer for parts may be established by submitting to the franchisor one
56 hundred sequential nonwarranty customer-paid service repair orders or
S. 6797--A 8
1 the number of sequential nonwarranty customer-paid service repair orders
2 written within a ninety day period, whichever is less, covering repairs
3 made no more than one hundred eighty days before the submission, and
4 declaring the price and rate, including average markup for the fran-
5 chised motor vehicle dealer as its reimbursement rate. The reimbursement
6 rate so declared shall go into effect thirty days following the declara-
7 tion and shall be presumed to be [fair and] reasonable, however a fran-
8 chisor may rebut such presumption by showing that such rate so estab-
9 lished is [unfair and] unreasonable in light of the practices of all
10 other franchised motor vehicle dealers in the vicinity offering the same
11 line make. The franchised motor vehicle dealer shall not request a
12 change in the reimbursement rate more often than [twice] ONCE in each
13 calendar year. In establishing the labor reimbursement rate, the fran-
14 chisor shall not require a franchised motor vehicle dealer to establish
15 said rate by a methodology, or by requiring information, that is unduly
16 burdensome or time consuming to provide, including, but not limited to,
17 a transaction by transaction calculation. FOR THE PURPOSES OF THIS
18 SECTION, THE FOLLOWING PARTS OR TYPES OF REPAIRS SHALL BE EXCLUDED FROM
19 THE PARTS AND/OR LABOR CALCULATIONS AND THE FRANCHISOR'S REIMBURSEMENT
20 REQUIREMENTS UNDER THIS SECTION: (A) PARTS SOLD AT WHOLESALE; (B) TIRES;
21 (C) ROUTINE MAINTENANCE NOT COVERED UNDER ANY RETAIL CUSTOMER WARRANTY
22 SUCH AS FLUIDS, FILTERS AND BELTS NOT PROVIDED IN THE COURSE OF REPAIRS;
23 (D) VEHICLE RECONDITIONING; AND (E) BATTERIES REPLACED AS PART OF A
24 ROUTINE MAINTENANCE OPERATION. IF THE FRANCHISOR REJECTS THE DECLARATION
25 OR ATTEMPTS TO REBUT THE DECLARATION BECAUSE OF AN ERROR IN THE DEALER'S
26 SUBMISSION, THE FRANCHISOR SHALL IDENTIFY WITH SPECIFICITY THE REASON
27 FOR REJECTION AND IDENTIFY THE ERROR OR ERRORS WITHIN THE SUBMISSION. IN
28 THE EVENT THE FRANCHISOR REJECTS OR REBUTS THE DEALER'S INITIAL DECLARA-
29 TION, THE DEALER SHALL HAVE THE OPPORTUNITY, WITHIN SIXTY DAYS TO RESUB-
30 MIT THE FULL AND CORRECTED DECLARATION ADDRESSING THE ALLEGED ERROR OR
31 ERRORS IDENTIFIED BY THE FRANCHISOR. THE FRANCHISOR SHALL RESPOND WITH-
32 IN SIXTY DAYS. THE ONE HUNDRED EIGHTY DAY REQUIREMENT FOR THE REPAIR
33 ORDERS SHALL BE STAYED FROM THE DATE OF INITIAL SUBMISSION. IN ANY
34 ACTION OR PROCEEDING HELD PURSUANT TO THIS SUBDIVISION, THE FRANCHISOR
35 SHALL HAVE THE BURDEN OF PROVING THAT THE RATE DECLARED BY THE DEALER
36 WAS UNREASONABLE AS DESCRIBED IN THIS SUBDIVISION AND THAT THE PROPOSED
37 ADJUSTMENT OF THE AVERAGE PERCENTAGE MARKUP OR REJECTION OF THE
38 SUBMISSION IS REASONABLE PURSUANT TO THE PROVISIONS OF THIS SUBDIVISION.
39 S 11. Subdivisions 3, 4, 6 and 7 of section 465 of the vehicle and
40 traffic law, as added by chapter 490 of the laws of 2008, are amended to
41 read as follows:
42 3. No franchisor shall conduct an audit or charge back any warranty
43 [or] PAYMENT, OR ANY sales [incentive payment], ADVERTISING OR MARKETING
44 INCENTIVE PAYMENT ("INCENTIVE PAYMENTS") or otherwise hold a franchised
45 motor vehicle dealer liable for charges more than one year, or five
46 years in the case of fraud, after the date the franchisor made such
47 payment to the dealer, WITHOUT PROVIDING A NOTICE TO A FRANCHISED MOTOR
48 VEHICLE DEALER OF, OR A MECHANISM THAT MAKES AVAILABLE TO A FRANCHISED
49 MOTOR VEHICLE DEALER, INFORMATION REGARDING ERRORS OR ISSUES REGARDING
50 SUCH DEALER'S WARRANTY, SALES, ADVERTISING OR MARKETING INCENTIVE CLAIMS
51 THAT ARE THE SUBJECT OF THE AUDIT OR CHARGEBACK. NOTHING IN THIS SECTION
52 SHALL BE DEEMED TO GRANT A DEALER THE RIGHT TO ACCESS ANY FILE HELD BY
53 THE MANUFACTURER EVALUATING SUCH DEALER. IN CONNECTION WITH A CLAIM FOR
54 WARRANTY REIMBURSEMENTS, THE DEALER'S FAILURE TO DOCUMENT PROPERLY ONE
55 PART OF A WARRANTY REPAIR THAT CONTAINS MORE THAN ONE PART SHALL NOT BE
56 THE SOLE BASIS TO CHARGE BACK THE ENTIRE REPAIR. A MANUFACTURER SHALL
S. 6797--A 9
1 NOT DENY A CLAIM SUBMITTED UNDER THIS SECTION BASED SOLELY ON A DEALER'S
2 INCIDENTAL FAILURE TO COMPLY WITH A SPECIFIC CLAIM PROCESSING REQUIRE-
3 MENT, A CLERICAL ERROR, OR OTHER ADMINISTRATIVE TECHNICALITY, PROVIDED
4 THAT THE FAILURE DOES NOT CALL INTO QUESTION THE LEGITIMACY OF THE CLAIM
5 AND THAT THE DEALER CORRECTS THE CLAIM ACCORDING TO FRANCHISOR GUIDE-
6 LINES.
7 4. A franchisor shall not charge a dealer back subsequent to the
8 payment of a warranty [or], sales [incentive], ADVERTISING OR MARKETING
9 INCENTIVE claim unless a representative of the franchisor has met in
10 person at the dealership, or by telephone, with an officer or employee
11 of the dealer designated by the dealer and explained in detail the basis
12 for each of the proposed charge backs and thereafter given the dealer's
13 representative a reasonable opportunity at the meeting, or during the
14 telephone call, to explain the dealer's position relating to each of the
15 proposed charge backs. In the event the dealer was selected for audit or
16 review on the basis that some or all of the dealer's claims were viewed
17 as excessive in comparison to average, mean or aggregate data accumu-
18 lated by the franchisor, or in relation to claims submitted by a group
19 of other franchisees, the franchisor shall, at or prior to the meeting
20 or telephone call with the dealer's representative, provide the dealer
21 with a written statement containing the basis or methodology upon which
22 the dealer was selected for audit or review.
23 6. A franchisor shall not deny or charge back a sales [incentive],
24 ADVERTISING OR MARKETING INCENTIVE payment made to a dealer unless the
25 claim was materially false or fraudulent or [that] the dealer failed to
26 reasonably substantiate the claim [either] in accordance with the
27 manufacturer's reasonable procedures.
28 7. After all internal dispute resolution processes provided through
29 the franchisor have been resolved, the franchisor shall give notice to
30 the dealer of the final amount of a proposed warranty [or], sales
31 [incentive], ADVERTISING OR MARKETING INCENTIVE charge back. If the
32 dealer institutes an action pursuant to this article within thirty days
33 of receipt of such notice, the proposed charge back shall be stayed,
34 without bond, during the pendency of such action and until the final
35 judgment has been rendered in an adjudicatory proceeding or action as
36 provided in section four hundred sixty-nine of this article. THE FRAN-
37 CHISOR SHALL NOT IMPOSE THE CHARGEBACK, DEBIT THE DEALER'S ACCOUNT, OR
38 OTHERWISE SEEK TO OBTAIN ALL OR ANY PART OF THE CHARGEBACK FUNDS FROM
39 THE DEALER DURING THE THIRTY-DAY PERIOD IN WHICH THE DEALER HAS THE
40 OPPORTUNITY TO FILE AN ACTION AS SET FORTH ABOVE.
41 S 12. Severability. If any clause, sentence, paragraph, section or
42 part of this act shall be adjudged by any court of competent jurisdic-
43 tion to be invalid and after exhaustion of all further judicial review,
44 the judgment shall not affect, impair or invalidate the remainder there-
45 of, but shall be confined in its operation to the clause, sentence,
46 paragraph, section or part of this act directly involved in the contro-
47 versy in which the judgment shall have been rendered.
48 S 13. This act shall take effect immediately.
