January 24, 2021
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_h1525c1
CS/HB 1525

1
A bill to be entitled
2An act relating to motor vehicle dealerships; amending s.
3320.64, F.S.; revising provisions for denial, suspension,
4or revocation of the license of a motor vehicle
5manufacturer, factory branch, distributor, or importer;
6revising prohibitions against coercion, requiring a dealer
7to relocate or make substantial changes to the dealer's
8facilities, certain audits, and failing to pay the motor
9vehicle dealer within a certain timeframe after a
10termination or nonrenewal of a franchise; revising
11requirements for licensee-offered program bonuses,
12incentives, and other benefits; providing that criminal
13penalties do not apply to certain violations; revising
14conditions and procedures for certain audits; removing a
15presumption that a dealer had no actual knowledge that a
16customer intended to export or resell a motor vehicle;
17providing for liability of the licensee to a dealer if
18termination, cancellation, or nonrenewal of the dealer's
19franchise is the result of the bankruptcy or
20reorganization of a licensee or its common entity, or the
21termination, elimination, or cessation of the line-make;
22amending s. 320.642, F.S.; revising provisions for
23establishing an additional motor vehicle dealership in or
24relocating an existing dealer to a location within a
25community or territory where the same line-make vehicle is
26presently represented by a franchised motor vehicle dealer
27or dealers; revising notice requirements; revising
28provisions for denial of an application for a motor
29vehicle dealer license in any community or territory;
30revising provisions for evidence to be considered by the
31Department of Highway Safety and Motor Vehicles when
32evaluating the application; revising provisions under
33which a dealer has standing to protest a proposed
34additional or relocated motor vehicle dealer; revising
35provisions for a proposed addition or relocation
36concerning a dealership that performs only service;
37amending s. 320.643, F.S.; revising provisions for
38transfer, assignment, or sale of franchise agreements;
39prohibiting rejection of proposed transfer of interest in
40a motor vehicle dealer entity to a trust or other entity,
41or a beneficiary thereof, that is established for estate
42planning purposes; prohibiting placing certain conditions
43on such transfer; revising provisions for a hearing by the
44department or a court relating to a proposed transfer;
45prohibiting a licensee from delaying or placing a
46condition for approval of a transfer; revising provisions
47for a determination that a rejection or withholding of a
48transfer was reasonable; requiring such determination to
49be based on a preponderance of the evidence; amending s.
50320.696, F.S.; revising provisions for determining
51compensation paid by a licensee to a dealer for warranty
52labor and parts; eliminating certain methods for
53determining warranty labor and parts reimbursement;
54revising restrictions on licensees and dealers relating to
55such compensation; providing for severability; providing
56an effective date.
57
58Be It Enacted by the Legislature of the State of Florida:
59
60     Section 1.  Subsection (5), paragraphs (a), (b), (c), (d),
61and (f) of subsection (10), and subsections (25), (26), and (36)
62of section 320.64, Florida Statutes, are amended, and paragraph
63(h) is added to subsection (10) of that section, to read:
64     320.64  Denial, suspension, or revocation of license;
65grounds.--A license of a licensee under s. 320.61 may be denied,
66suspended, or revoked within the entire state or at any specific
67location or locations within the state at which the applicant or
68licensee engages or proposes to engage in business, upon proof
69that the section was violated with sufficient frequency to
70establish a pattern of wrongdoing, and a licensee or applicant
71shall be liable for claims and remedies provided in ss. 320.695
72and 320.697 for any violation of any of the following
73provisions. A licensee is prohibited from committing the
74following acts:
75     (5)  The applicant or licensee has coerced or attempted to
76coerce any motor vehicle dealer into ordering or accepting
77delivery of any motor vehicle or vehicles or parts or
78accessories therefor or any other commodities which have not
79been ordered voluntarily by the dealer or are in excess of that
80number which the motor vehicle dealer considers as reasonably
81required to adequately represent the licensee's line-make in
82order to meet current and foreseeable market demand.
83     (10)(a)  The applicant or licensee has attempted to enter,
84or has entered, into a franchise agreement with a motor vehicle
85dealer who does not, at the time of the franchise agreement,
86have proper facilities to provide the services to his or her
87purchasers of new motor vehicles which are covered by the new
88motor vehicle warranty issued by the applicant or licensee.
89Notwithstanding any provision of a franchise, a licensee may not
90require a motor vehicle dealer, by franchise agreement, program,
91policy, standard, or otherwise, to relocate, to make substantial
92changes, alterations, or remodeling to, or to replace a motor
93vehicle dealer's sales or service facilities unless the licensee
94can demonstrate that its licensee's requirements are reasonable
95and justifiable in light of the current and reasonably
96foreseeable projections of economic conditions, financial
97expectations, and the motor vehicle dealer's market for the
98licensee's motor vehicles.
99     (b)  A licensee may, however, provide to a motor vehicle
100dealer a written commitment to supply allocate additional
101vehicles consistent with its allocation obligations at law and
102to its other same line-make motor vehicle dealers or to provide
103a lump sum or a loan or grant of money as an inducement for the
104motor vehicle dealer to relocate, expand, improve, remodel,
105alter, or renovate its facilities, provided that if the licensee
106delivers an assurance to the dealer that it will offer to supply
107to the dealer a sufficient quantity of new motor vehicles,
108consistent with its allocation obligations at law and to its
109other same line-make motor vehicle dealers, which will
110economically justify such relocation, expansion, improvement,
111remodeling, renovation, or alteration, in light of reasonably
112current and reasonably projected market and economic conditions.
113the provisions of the commitment increase in vehicle allocation,
114the loan or grant and the assurance, and the economic and market
115reasons and basis for them must be contained in a writing that
116is written agreement voluntarily entered into by the dealer and
117must be made available, on substantially similar terms, to any
118of the licensee's other same line-make dealers in this state who
119voluntarily agree to make substantially similar facility
120expansions, improvements, remodelings, alterations, or
121renovations with whom the licensee offers to enter into such an
122agreement.
123     (c)1.  A licensee may shall not withhold a bonus,
124incentive, or other benefit that is available to its other same
125line-make franchised dealers in this state from, or take or
126threaten to take any action that is unfair, discriminatory, or
127adverse to a dealer who does not enter into an agreement with
128the licensee pursuant to paragraph (b).
129     2.  No provision of this subsection shall require a
130licensee to provide financial support for a relocation of a
131motor vehicle dealer because such support was previously
132provided to another of the licensee's same line-make motor
133vehicle dealers who relocated.
134     (d)  Except for a program, bonus, incentive, or other
135benefit offered by a licensee to its dealers in a market area
136where the licensee's unrealized sales potential or other market
137conditions, compared to its competitors' sales of motor
138vehicles, justifies the licensee to target that market area with
139such offer, a licensee may not refuse to offer a program, bonus,
140incentive, or other benefit, in whole or in part, to a dealer in
141this state which it offers generally to its other same line-make
142dealers nationally or in the licensee's zone or region in which
143this state is included. Neither may a licensee it discriminate
144against a dealer in this state with respect to any program,
145bonus, incentive, or other benefit. For purposes of this
146chapter, a licensee may not establish this state alone as a
147zone, region, or territory, or by any other area designation.
148     (f)  A licensee may offer any program for a bonus,
149incentive, or other benefit to its motor vehicle dealers in this
150state that contains rules, criteria, or eligibility requirements
151relating to a motor vehicle dealer's facilities and nonfacility-
152related eligibility provisions. If, however, any portion of a
153licensee-offered program for a bonus, incentive, or other
154benefit contains any qualifying rule, criteria, or eligibility
155requirement that relates to a motor vehicle that, in whole or in
156part, is based upon or aimed at inducing a dealer's relocation,
157expansion, improvement, remodeling, renovation, or alteration of
158the dealer's sales or service facility, or both, each of the
159licensee's motor vehicle dealers in this state, upon complying
160with all such qualifying provisions shall be entitled to obtain
161the entire bonus, incentive, or other benefit offered; however,
162a motor vehicle dealer who does not comply with the facility-
163related rule, criteria, or eligibility requirement, but complies
164with the other program rules, criteria, or eligibility
165requirements, shall be entitled to receive a reasonable,
166licensee-predetermined percentage of such bonuses, incentives,
167or other benefits under the program that are unrelated to the
168motor vehicle dealer's facilities. For purposes of this
169paragraph, the licensee's predetermined percentage unrelated to
170facilities is presumed reasonable if it is not less than 75
171percent of the total bonuses, incentives, or other benefits
172offered under such is void as to each of the licensee's motor
173vehicle dealers in this state who, nevertheless, shall be
174eligible for the entire amount of the bonuses, incentives, or
175benefits offered in the program upon compliance with the other
176eligibility provisions in the program.
177     (h)  A breach or violation of paragraphs (b)-(g) is not a
178violation of s. 320.70 and does not subject a licensee to any
179criminal penalty under s. 320.70.
180     (25)  The applicant or licensee has undertaken an audit of
181warranty, maintenance, and other service-related payments or of
182incentive payments, including payments to a motor vehicle dealer
183under any licensee-issued program, policy, or other benefit that
184previously have been paid to a motor vehicle dealer in violation
185of this section or has failed to comply with any of its
186obligations under s. 320.696. An applicant or licensee may
187reasonably and periodically audit a motor vehicle dealer to
188determine the validity of paid claims as provided in s. 320.696.
189Audits Audit of warranty, maintenance, and other service-related
190payments shall only be performed by an applicant or licensee
191during for the 1-year period immediately following the date the
192claim was paid. Audits Audit of incentive payments shall only be
193performed by an applicant or licensee during the for an 18-month
194period immediately following the date the incentive was paid.
195After those time periods have elapsed, all warranty,
196maintenance, and other service-related payments and incentive
197payments shall be deemed final and incontrovertible for any
198reason cognizant under any applicable law and the motor vehicle
199dealer shall not be subject to any charge back or repayment. An
200applicant or licensee may deny a claim or, as a result of a
201timely conducted audit, charge back a motor vehicle dealer for
202warranty, maintenance, or other service-related payments or
203incentive payments only if An applicant or licensee shall not
204deny a claim or charge a motor vehicle dealer back subsequent to
205the payment of the claim unless the applicant or licensee can
206show that the warranty, maintenance, or other service-related
207claim or incentive claim was false or fraudulent or that the
208motor vehicle dealer failed to substantially comply with the
209reasonable, written, and uniformly applied procedures of the
210applicant or licensee for such repairs or incentives. An
211applicant or licensee may not charge a motor vehicle dealer back
212subsequent to the payment of a warranty, maintenance, or
213service-related claim or incentive claim unless, within 30 days
214after a timely conducted audit, a representative of the
215applicant or licensee first meets in person, by telephone, or by
216video teleconference with an officer or employee of the dealer
217designated by the motor vehicle dealer. At such meeting the
218applicant or licensee must provide a detailed explanation, with
219supporting documentation, as to the basis for each of the claims
220for which the applicant or licensee proposed a charge-back to
221the dealer and a written statement containing the basis upon
222which the motor vehicle dealer was selected for audit or review.
223Thereafter, the applicant or licensee must provide the motor
224vehicle dealer's representative a reasonable period after the
225meeting within which to respond to the proposed charge-backs,
226with such period to be commensurate with the volume of claims
227under consideration, but in no case less than 45 days after the
228meeting. The applicant or licensee is prohibited from changing
229or altering the basis for each of the proposed charge-backs as
230presented to the motor vehicle dealer's representative following
231the conclusion of the audit unless the applicant or licensee
232receives new information affecting the basis for one or more
233charge-backs and that new information is received within 60 days
234after the conclusion of the timely conducted audit. If the
235applicant or licensee claims the existence of new information,
236the dealer must be given the same right to a meeting within 30
237days after the applicant's or licensee's receipt of the new
238information and right to respond as when the charge-back was
239originally presented.
240     (26)  Notwithstanding the terms of any franchise agreement,
241including any licensee's program, policy, or procedure, the
242applicant or licensee has refused to allocate, sell, or deliver
243motor vehicles; charged back or withheld payments or other
244things of value for which the dealer is otherwise eligible under
245a sales promotion, program, or contest; prevented a motor
246vehicle dealer from participating in any promotion, program, or
247contest; or has taken or threatened to take any adverse action
248against a dealer, including charge-backs, reducing vehicle
249allocations, or terminating or threatening to terminate a
250franchise because the dealer sold or leased a motor vehicle to a
251customer who exported the vehicle to a foreign country or who
252resold the vehicle, unless the licensee proves that the dealer
253had actual knowledge that the customer intended to export or
254resell the motor vehicle. There is a conclusive presumption that
255the dealer had no actual knowledge if the vehicle is titled or
256registered in any state in this country.
257     (36)(a)  Notwithstanding the terms of any franchise
258agreement, in addition to any other statutory or contractual
259rights of recovery after the voluntary or involuntary
260termination of a franchise, failing to pay the motor vehicle
261dealer, within 90 days after the effective date of the
262termination, cancellation, or nonrenewal, the following amounts:
263     1.  The net cost paid by the dealer for each new car or
264truck in the dealer's inventory with mileage of 2,000 miles or
265less, or a motorcycle with mileage of 100 miles or less,
266exclusive of mileage placed on the vehicle before it was
267delivered to the dealer.
268     2.  The current price charged for each new, unused,
269undamaged, or unsold part or accessory that:
270     a.  Is in the current parts catalogue and is still in the
271original, resalable merchandising package and in an unbroken
272lot, except that sheet metal may be in a comparable substitute
273for the original package; and
274     b.  Was purchased by the dealer directly from the
275manufacturer or distributor or from an outgoing authorized
276dealer as a part of the dealer's initial inventory.
277     3.  The fair market value of each undamaged sign owned by
278the dealer which bears a trademark or trade name used or claimed
279by the applicant or licensee or its representative which was
280purchased from or at the request of the applicant or licensee or
281its representative.
282     4.  The fair market value of all special tools, data
283processing equipment, and automotive service equipment owned by
284the dealer which:
285     a.  Were recommended in writing by the applicant or
286licensee or its representative and designated as special tools
287and equipment;
288     b.  Were purchased from or at the request of the applicant
289or licensee or its representative; and
290     c.  Are in usable and good condition except for reasonable
291wear and tear.
292     5.  The cost of transporting, handling, packing, storing,
293and loading any property subject to repurchase under this
294section.
295     6.  If the termination, cancellation, or nonrenewal of the
296dealer's franchise is the result of the bankruptcy or
297reorganization of a licensee or its common entity, or the
298termination, elimination, or cessation of the line-make, in
299addition to the payments required under subparagraphs 1.-5. to
300the dealer, the licensee or, if the licensee is unable to do so,
301its common entity, shall be liable to the motor vehicle dealer
302for the following:
303     a.  An amount at least equal to the fair market value of
304the franchise for the line-make, which shall be the greater of
305that value determined as of the day the licensee announces the
306action that results in the termination, cancellation, or
307nonrenewal and such action becomes general knowledge or the day
308that is 12 months prior to such date. In determining the fair
309market value of a franchise for a line-make, if the line-make is
310not the only line-make for which the dealer holds a franchise in
311its dealership facilities, the dealer shall also be entitled to
312compensation for the contribution of the line-make to the
313payment of rent or to covering the dealer's obligation for the
314fair rental value of the dealership facilities for the period
315described in sub-subparagraph b. Fair market value of the
316franchise for the line-make shall only include the goodwill
317value of the dealer's franchise for that line-make in the
318dealer's community or territory.
319     b.  If the line-make is the only line-make for which the
320dealer holds a franchise in the dealership facilities, the
321licensee, or its common entity if the licensee is unable to pay,
322shall also pay to the dealer assistance with respect to the
323dealership facilities leased or owned by the dealership or its
324principal owner a sum equal to the rent for the unexpired term
325of the lease or 3 years' rent, whichever is less; or, if the
326dealer or its principal owner owns the dealership facilities, a
327sum equal to the reasonable fair rental value of the dealership
328facilities for a period of 3 years as if the franchise were
329still in existence at the facilities, provided that the motor
330vehicle dealer uses reasonable commercial efforts to mitigate
331this liability by attempting in good faith to lease or sell the
332facilities within a reasonable time on terms that are consistent
333with local zoning requirements to preserve the facilities' right
334to sell and service motor vehicles.
335     (b)  This subsection does not apply to a termination,
336cancellation, or nonrenewal that is implemented as a result of
337the sale of the assets or corporate stock or other ownership
338interests of the dealer. The dealer shall return the property
339listed in this subsection to the licensee at the dealer's place
340of business on a date selected by the dealer in the absence of
341an agreement with the licensee that is within 90 days after the
342effective date of the termination, cancellation, or nonrenewal.
343The licensee shall supply the dealer with reasonable
344instructions regarding the packing for transport method by which
345the dealer must return the property. The compensation for the
346property shall be paid by the licensee upon and simultaneously
347with within 60 days after the tender of inventory and other
348items provided that, if the dealer does not have has clear title
349to the inventory and other items and is not in a position to
350convey that title to the licensee manufacturer or distributor.
351If the inventory or other items are subject to a security
352interest, the licensee shall may make payment jointly to the
353dealer and the holder of any the security interest.
354
355A motor vehicle dealer who can demonstrate that a violation of,
356or failure to comply with, any of the preceding provisions by an
357applicant or licensee will or can adversely and pecuniarily
358affect the complaining dealer, shall be entitled to pursue all
359of the remedies, procedures, and rights of recovery available
360under ss. 320.695 and 320.697.
361     Section 2.  Subsections (1), (2), (3), and (6) of section
362320.642, Florida Statutes, are amended to read:
363     320.642  Dealer licenses in areas previously served;
364procedure.--
365     (1)  Any licensee who proposes to establish an additional
366motor vehicle dealership or permit the relocation of an existing
367dealer to a location within a community or territory where the
368same line-make vehicle is presently represented by a franchised
369motor vehicle dealer or dealers shall give written notice of its
370intention to the department. Such notice shall state:
371     (a)  The specific location at which the additional or
372relocated motor vehicle dealership will be established.
373     (b)  The date on or after which the licensee intends to be
374engaged in business with the additional or relocated motor
375vehicle dealer at the proposed location.
376     (c)  The identity of all motor vehicle dealers who are
377franchised to sell the same line-make vehicle with licensed
378locations in the county and or any contiguous county to the
379county where the additional or relocated motor vehicle dealer is
380proposed to be located.
381     (d)  The names and addresses of the dealer-operator and
382principal investors in the proposed additional or relocated
383motor vehicle dealership.
384
385Immediately upon receipt of such notice the department shall
386cause a notice to be published in the Florida Administrative
387Weekly. The published notice shall state that a petition or
388complaint by any dealer with standing to protest pursuant to
389subsection (3) must be filed not more than 45 30 days after from
390the date of publication of the notice in the Florida
391Administrative Weekly. The published notice shall describe and
392identify the proposed dealership sought to be licensed, and the
393department shall cause a copy of the notice to be mailed to
394those dealers identified in the licensee's notice under
395paragraph (c).
396     (2)(a)  An application for a motor vehicle dealer license
397in any community or territory shall be denied when:
398     1.  A timely protest is filed by a presently existing
399franchised motor vehicle dealer with standing to protest as
400defined in subsection (3); and
401     2.  The licensee fails to show that the existing franchised
402dealer or dealers who register new motor vehicle retail sales or
403retail leases of the same line-make in the community or
404territory of the proposed dealership are not providing adequate
405representation, adequate competition, and convenient customer
406service of such line-make motor vehicles in a manner beneficial
407to the public interest in such community or territory. The
408ultimate burden of proof in establishing inadequate
409representation, inadequate competition, and inconvenient
410customer service shall be on the licensee. Any geographic
411comparison area used to evaluate the performance of the line-
412make or of the existing motor vehicle dealer or dealers within
413the community or territory must be reasonably similar in
414demographic traits to the community or territory of the proposed
415site, including such factors as age, income, education, and
416vehicle size, class, or model preference and product popularity
417and the comparison area must not be smaller than the largest
418entire county in which any of the protesting dealers are
419located. Reasonably expected market sales or service penetration
420must be measured with respect to the community or territory as a
421whole and not with respect to any part thereof or any
422identifiable plot therein.
423     (b)  In determining whether the existing franchised motor
424vehicle dealer or dealers are providing adequate representation,
425adequate competition, and convenient customer service in the
426community or territory for the line-make, the department may
427consider evidence of any factor deemed material by the finder of
428fact in the unique circumstances, which may include, but is not
429limited to:
430     1.  The market share and return on investment impact of the
431establishment of the proposed or relocated dealer on the
432consumers, public interest, existing dealers, and the licensee;
433provided, however, that financial impact other than return on
434investment may only be considered with respect to the protesting
435dealer or dealers.
436     2.  The size and permanency of investment reasonably made
437and reasonable obligations incurred by the existing dealer or
438dealers to perform their obligations under the dealer agreement,
439including requirements made by the licensee up to 5 years prior
440to the date of the publication of the notice.
441     3.  The reasonably expected market penetration of the line-
442make motor vehicle for the community or territory involved,
443after consideration of all factors which may affect such said
444penetration, including, but not limited to, demographic factors
445such as age, income, education, vehicle size, class, or model
446preference, line-make, product popularity, retail lease
447transactions, reasonably foreseeable economic projections,
448financial expectations, availability of reasonable terms and
449reasonable amounts of credit to prospective customers, or other
450factors affecting sales to consumers of the community or
451territory.
452     4.  Any actions by the licensee licensees in denying its
453existing dealer or dealers of the same line-make the opportunity
454for reasonable growth, market expansion, or relocation,
455including the availability of line-make vehicles by model, in
456keeping with the reasonable expectations of the licensee in
457providing an adequate number of dealers in the community or
458territory, and the licensee, or its common entity, making or
459there otherwise being credit available to the existing dealers
460in reasonable amounts and on reasonable terms.
461     5.  Any attempts by the licensee to coerce the existing
462dealer or dealers into consenting to additional or relocated
463franchises of the same line-make in the community or territory.
464     6.  Distance, travel time, traffic patterns, and
465accessibility, between the existing dealer or dealers of the
466same line-make and the location of the proposed additional or
467relocated dealer, for prospective customers.
468     7.  Whether there will likely be a material positive impact
469and a material benefit benefits to consumers will likely occur
470from the establishment or relocation of the proposed dealership
471which will not cannot be obtained by other geographic or
472demographic changes or expected changes in the community or
473territory or by a material increase in advertising by the
474licensee.
475     8.  Whether the protesting dealer or dealers are in
476substantial compliance with their dealer agreement.
477     9.  Whether there is adequate interbrand and intrabrand
478competition with respect to such said line-make in the community
479or territory and adequately convenient consumer care for the
480motor vehicles of the line-make, including the adequacy of sales
481and service facilities.
482     10.  Whether the establishment or relocation of the
483proposed dealership is appears to be warranted and justified
484based on economic and marketing conditions pertinent to dealers
485competing in the community or territory, including anticipated
486future changes.
487     11.  The volume of registrations and service business
488transacted by the existing dealer or dealers of the same line-
489make in the relevant community or territory of the proposed
490dealership.
491     12.  The past and reasonably foreseeable expected growth or
492decline in population, density of population, and new motor
493vehicle registrations in the community or territory of the
494proposed dealership for competing motor vehicles and whether
495existing same line-make dealers will be unable to adjust their
496dealership operations to adequately deal with such changes.
497     13.  Whether the licensee has provided marketing and
498advertising support of its line-make in the community or
499territory on a basis comparable to its interbrand competitors.
500     14.  Whether the economic conditions reasonably forecasted
501by the licensee for the foreseeable future will provide all
502existing same line-make dealers and the proposed new or
503relocated dealership the opportunity for a reasonable return on
504their investment, including supplying an adequate number of
505every model of the licensee's new motor vehicles to them.
506     (3)  An existing franchised motor vehicle dealer or dealers
507shall have standing to protest a proposed additional or
508relocated motor vehicle dealer where the existing motor vehicle
509dealer or dealers have a franchise agreement for the same line-
510make vehicle to be sold or serviced by the proposed additional
511or relocated motor vehicle dealer and are physically located so
512as to meet or satisfy any of the following requirements or
513conditions:
514     (a)  If the proposed additional or relocated motor vehicle
515dealer is to be located in a county with a population of less
516than 300,000 according to the most recent data of the United
517States Census Bureau or the data of the Bureau of Economic and
518Business Research of the University of Florida:
519     1.  The proposed additional or relocated motor vehicle
520dealer is to be located in the area designated or described as
521the area of responsibility, or such similarly designated area,
522including the entire area designated as a multiple-point area,
523in the franchise agreement or in any related document or
524commitment with the existing motor vehicle dealer or dealers of
525the same line-make as such agreement existed on or after the
526effective date of this act upon October 1, 1988;
527     2.  The existing motor vehicle dealer or dealers of the
528same line-make have a licensed franchise location within a
529radius of 20 miles of the location of the proposed additional or
530relocated motor vehicle dealer; or
531     3.  Any existing motor vehicle dealer or dealers of the
532same line-make can establish that during any 12-month period of
533the 36-month period preceding the filing of the licensee's
534application for the proposed dealership, such dealer or its
535predecessor made 25 percent of its retail sales of new motor
536vehicles to persons whose registered household addresses were
537located within a radius of 20 miles of the location of the
538proposed additional or relocated motor vehicle dealer; provided
539such existing dealer is located in the same county or any county
540contiguous to the county where the additional or relocated
541dealer is proposed to be located.
542     (b)  If the proposed additional or relocated motor vehicle
543dealer is to be located in a county with a population of more
544than 300,000 according to the most recent data of the United
545States Census Bureau or the data of the Bureau of Economic and
546Business Research of the University of Florida:
547     1.  Any existing motor vehicle dealer or dealers of the
548same line-make have a licensed franchise location within a
549radius of 15 12.5 miles of the location of the proposed
550additional or relocated motor vehicle dealer; or
551     2.  Any existing motor vehicle dealer or dealers of the
552same line-make can establish that during any 12-month period of
553the 36-month period preceding the filing of the licensee's
554application for the proposed dealership, such dealer or its
555predecessor made 20 25 percent of its retail sales of new motor
556vehicles to persons whose registered household addresses were
557located within a radius of 15 12.5 miles of the location of the
558proposed additional or relocated motor vehicle dealer, or
559performed repairs on the same line-make motor vehicles that
560constituted 15 percent of its total service department sales to
561persons whose registered addresses were located within a radius
562of 15 miles of the location of the proposed additional or
563relocated dealer; provided such existing dealer is located in
564the same county or any county contiguous to the county where the
565additional or relocated dealer is proposed to be located.
566     (6)  When a proposed addition or relocation concerns a
567dealership that performs or is to perform only service, as
568defined in s. 320.60(16), and will not or does not sell or lease
569new motor vehicles, as defined in s. 320.60(15), the proposal
570shall be subject to notice and protest pursuant to the
571provisions of this section.
572     (a)  Standing to protest the addition or relocation of a
573service-only dealership shall be limited to those instances in
574which the applicable mileage requirement established in
575subparagraphs (3)(a)2. and (3)(b)1. or 2. is met.
576     (b)  The addition or relocation of a service-only
577dealership shall not be subject to protest if:
578     1.  The applicant for the service-only dealership location
579is an existing motor vehicle dealer of the same line-make as the
580proposed additional or relocated service-only dealership;
581     2.  There is no existing dealer of the same line-make
582closer than the applicant to the proposed location of the
583additional or relocated service-only dealership; and
584     3.  The proposed location of the additional or relocated
585service-only dealership is at least 10 7 miles from all existing
586motor vehicle dealerships of the same line-make, other than
587motor vehicle dealerships owned by the applicant.
588     (c)  In determining whether existing franchised motor
589vehicle dealers are providing adequate representation, adequate
590competition, and convenient customer service representations in
591the community or territory for the line-make in question in a
592protest of the proposed addition or relocation of a service-only
593dealership, the department may consider the elements set forth
594in paragraph (2)(b), provided:
595     1.  With respect to subparagraph (2)(b)1., only the impact
596as it relates to service may be considered;
597     2.  Subparagraph (2)(b)3. shall not be considered;
598     3.  With respect to subparagraph (2)(b)9., only service
599facilities shall be considered; and
600     4.  With respect to subparagraph (2)(b)11., only the volume
601of service business transacted shall be considered.
602     (d)  If an application for a service-only dealership is
603granted, the department shall issue a license which permits only
604service, as defined in s. 320.60(16), and does not permit the
605selling or leasing of new motor vehicles, as defined in s.
606320.60(15). If a service-only dealership subsequently seeks to
607sell new motor vehicles at its location, the notice and protest
608provisions of this section shall apply.
609     Section 3.  Section 320.643, Florida Statutes, is amended
610to read:
611     320.643  Transfer, assignment, or sale of franchise
612agreements.--
613     (1)(a)  Notwithstanding the terms of any franchise
614agreement, a licensee shall not, by contract or otherwise, fail
615or refuse to give effect to, prevent, prohibit, or penalize or
616attempt to refuse to give effect to, prohibit, or penalize any
617motor vehicle dealer from selling, assigning, transferring,
618alienating, or otherwise disposing of its franchise agreement to
619any other person or persons, including a corporation established
620or existing for the purpose of owning or holding a franchise
621agreement, unless the licensee proves at a hearing pursuant to a
622complaint filed by a motor vehicle dealer under this section
623that such sale, transfer, alienation, or other disposition is to
624a person who is not, or whose controlling executive management
625is not, of good moral character or does not meet the written,
626reasonable, and uniformly applied standards or qualifications of
627the licensee relating to financial qualifications of the
628transferee and business experience of the transferee or the
629transferee's executive management. A motor vehicle dealer who
630desires to sell, assign, transfer, alienate, or otherwise
631dispose of a franchise shall notify, or cause the proposed
632transferee to notify, the licensee, in writing, setting forth
633the prospective transferee's name, address, financial
634qualifications, and business experience during the previous 5
635years. A licensee who receives such notice may, within 60 days
636following such receipt, notify the motor vehicle dealer, in
637writing, that the proposed transferee is not a person qualified
638to be a transferee under this section and setting forth the
639material reasons for such rejection. Failure of the licensee to
640notify the motor vehicle dealer within the 60-day period of such
641rejection shall be deemed an approval of the transfer. No such
642transfer, assign, or sale shall be valid unless the transferee
643agrees in writing to comply with all requirements of the
644franchise then in effect.
645     (b)  A motor vehicle dealer whose proposed sale is rejected
646may, within 60 days following such receipt of such rejection,
647file with the department a complaint for a determination that
648the proposed transferee has been rejected in violation of this
649section. The licensee has the burden of proof with respect to
650all issues raised by such complaint. The department shall
651determine, and enter an order providing, that the proposed
652transferee is either qualified or is not and cannot be qualified
653for specified reasons, or the order may provide the conditions
654under which a proposed transferee would be qualified. If the
655licensee fails to file such a response to the motor vehicle
656dealer's complaint within 30 days after receipt of the
657complaint, unless the parties agree in writing to an extension,
658or if the department, after a hearing, renders a decision other
659than one disqualifying the proposed transferee, the franchise
660agreement between the motor vehicle dealer and the licensee
661shall be deemed amended to incorporate such transfer or amended
662in accordance with the determination and order rendered,
663effective upon compliance by the proposed transferee with any
664conditions set forth in the determination or order.
665     (2)(a)  Notwithstanding the terms of any franchise
666agreement, a licensee shall not, by contract or otherwise, fail
667or refuse to give effect to, prevent, prohibit, or penalize, or
668attempt to refuse to give effect to, prevent, prohibit, or
669penalize, any motor vehicle dealer or any proprietor, partner,
670stockholder, owner, or other person who holds or otherwise owns
671an interest therein from selling, assigning, transferring,
672alienating, or otherwise disposing of, in whole or in part, the
673equity interest of any of them in such motor vehicle dealer to
674any other person or persons, including a corporation established
675or existing for the purpose of owning or holding the stock or
676ownership interests of other entities, unless the licensee
677proves at a hearing pursuant to a complaint filed by a motor
678vehicle dealer under this section that such sale, transfer,
679alienation, or other disposition is to a person who is not, or
680whose controlling executive management is not, of good moral
681character. A motor vehicle dealer, or any proprietor, partner,
682stockholder, owner, or other person who holds or otherwise owns
683an interest in the motor vehicle dealer, who desires to sell,
684assign, transfer, alienate, or otherwise dispose of any interest
685in such motor vehicle dealer shall notify, or cause the proposed
686transferee to so notify, the licensee, in writing, of the
687identity and address of the proposed transferee. A licensee who
688receives such notice may, within 60 days following such receipt,
689notify the motor vehicle dealer in writing that the proposed
690transferee is not a person qualified to be a transferee under
691this section and setting forth the material reasons for such
692rejection. Failure of the licensee to notify the motor vehicle
693dealer within the 60-day period of such rejection shall be
694deemed an approval of the transfer. Any person whose proposed
695sale of stock is rejected may file within 60 days of receipt of
696such rejection a complaint with the department alleging that the
697rejection was in violation of the law or the franchise
698agreement. The licensee has the burden of proof with respect to
699all issues raised by such complaint. The department shall
700determine, and enter an order providing, that the proposed
701transferee either is qualified or is not and cannot be qualified
702for specified reasons; or the order may provide the conditions
703under which a proposed transferee would be qualified. If the
704licensee fails to file a response to the motor vehicle dealer's
705complaint within 30 days of receipt of the complaint, unless the
706parties agree in writing to an extension, or if the department,
707after a hearing, renders a decision on the complaint other than
708one disqualifying the proposed transferee, the transfer shall be
709deemed approved in accordance with the determination and order
710rendered, effective upon compliance by the proposed transferee
711with any conditions set forth in the determination or order.
712     (b)  Notwithstanding paragraph (a), neither a licensee nor
713the department shall reject a proposed transfer of a legal,
714equitable, or beneficial interest in a motor vehicle dealer to a
715trust or other entity, or to any beneficiary thereof, that is
716established by an owner of any interest in a motor vehicle
717dealer for estate planning purposes, provided the controlling
718person of the trust or entity thereof, or such beneficiary, is
719of good moral character; nor shall a licensee or the department
720condition any proposed transfer under this section upon a
721relocation of, construction of any addition or modification to,
722or any refurbishing or remodeling of any dealership structure,
723facility, or building of the existing motor vehicle dealer or
724upon any modification of the existing franchise agreement.
725     (3)  During the pendency of any such department or court
726hearing, the franchise agreement of the motor vehicle dealer
727shall continue in effect in accordance with its terms. The
728department or any court shall use reasonable efforts to expedite
729any determination requested under this section.
730     (4)  Notwithstanding the terms of any franchise agreement,
731the acceptance by the licensee of the proposed transferee shall
732not be unreasonably withheld, delayed, or conditioned. For the
733purposes of this section, the refusal by the licensee to accept,
734in a timely manner, a proposed transferee who satisfies the
735criteria set forth in subsection (1) or subsection (2) is
736presumed to be unreasonable.
737     (5)  It shall be a violation of this section for the
738licensee to reject, or withhold, delay, or condition approval of
739a proposed transfer unless the licensee can prove in any court
740of competent jurisdiction in defense of any claim brought
741pursuant to s. 320.697 that, in fact, the rejection or
742withholding of approval of the proposed transfer was not in
743violation of or precluded by this section and was reasonable.
744The determination of whether such rejection or withholding was
745reasonable shall be based on a preponderance of the evidence
746presented during the proceeding on an objective standard.
747Alleging the permitted statutory grounds by the licensee in the
748written rejection of the proposed transfer shall not constitute
749a defense of the licensee or protect the licensee from liability
750for violating this section.
751     Section 4.  Subsections (3), (4), (5), and (7) of section
752320.696, Florida Statutes, are amended to read:
753     320.696  Warranty responsibility.--
754     (3)(a)  A licensee shall compensate a motor vehicle dealer
755for parts used in any work described in subsection (1). The
756compensation may be an agreed percentage markup over the
757licensee's dealer cost, but if an agreement is not reached
758within 30 days after a dealer's written request, compensation
759for the parts shall be is the greater of:
760     1.  The dealer's arithmetical mean percentage markup over
761dealer cost for all parts charged by the dealer in 75 50
762consecutive retail customer repairs made by the dealer within a
7633-month period before the dealer's written request for a change
764in reimbursement pursuant to this section, or all of the retail
765customer repair orders over that 3-month period if there are
766fewer than 75 50 retail customer repair orders in that period.
767The motor vehicle dealer shall give the licensee 10 days'
768written notice that it intends to make a written request to the
769licensee for a warranty parts reimbursement increase and permit
770the licensee, within that 10-day period, to select the initial
771retail customer repair for the consecutive repair orders that
772will be attached to the written request used for the markup
773computation, provided that if the licensee fails to provide a
774timely selection, the dealer may make that selection. No repair
775order shall be excluded from the markup computation because it
776contains both warranty, extended warranty, certified pre-owned
777warranty, maintenance, recall, campaign service, or authorized
778goodwill work and a retail customer repair. However, only the
779retail customer repair portion of the repair order shall be
780included in the computation, and the parts described in
781paragraph (b) shall be excluded from the computation; or
782     2.  The licensee's highest suggested retail or list price
783for the parts.; or
784     3.  An amount equal to the dealer's markup over dealer cost
785that results in the same gross profit percentage for parts used
786in work done under subsection (1) as the dealer receives for
787parts used in the customer retail repairs, as evidenced by the
788average of said dealer's gross profit percentage in the dealer's
789financial statements for the 2 months preceding the dealer's
790request.
791
792If a licensee reduces the suggested retail or list price for any
793replacement part or accessory, it also shall reduce, by at least
794the same percentage, the cost to the dealer for the part or
795accessory. The dealer's markup or gross profit percentage shall
796be uniformly applied to all of the licensee's parts used by the
797dealer in performing work covered by subsection (1).
798     (b)  In calculating the compensation to be paid for parts
799by the arithmetical mean percentage markup over dealer cost
800method in paragraph (a), parts discounted by a dealer for
801repairs made in group, fleet, insurance, or other third-party
802payer service work; parts used in repairs of government
803agencies' vehicles repairs for which volume discounts have been
804negotiated; parts used in bona fide special events, specials, or
805promotional discounts for retail customer repairs; parts sold at
806wholesale; parts used for internal repairs; engine assemblies
807and transmission assemblies; parts used in retail customer
808repairs for routine maintenance, such as fluids, filters and
809belts; nuts, bolts, fasteners, and similar items that do not
810have an individual part number; and tires shall be excluded in
811determining the percentage markup over dealer cost.
812     (c)  If a licensee furnishes a part or component to a motor
813vehicle dealer at no cost to use in performing repairs under a
814recall, campaign service action, or warranty repair, the
815licensee shall compensate the dealer for the part or component
816in the same manner as warranty parts compensation under this
817subsection, less the dealer cost for the part or component as
818listed in the licensee's price schedule.
819     (d)  A licensee shall not establish or implement a special
820part or component number for parts used in predelivery, dealer
821preparation, warranty, extended warranty, certified pre-owned
822warranty, recall, campaign service, authorized goodwill, or
823maintenance-only applications if that results in lower
824compensation to the dealer than as calculated in this
825subsection.
826     (4)(a)  A licensee shall compensate a motor vehicle dealer
827for labor performed in connection with work described in
828subsection (1) as calculated in this subsection.
829     (b)1.  Compensation paid by a licensee to a motor vehicle
830dealer may be an agreed hourly labor rate. If, however, an
831agreement is not reached within 30 days after the dealer's
832written request, the compensation shall be dealer may choose to
833be paid the greater of:
834     1.  the dealer's hourly labor rate for retail customer
835repairs, determined by dividing the amount of the dealer's total
836labor sales for retail customer repairs by the number of total
837labor hours that generated those sales for the month preceding
838the request, excluding the work in paragraph (c).; or
839     2.  An amount equal to the dealer's markup over dealer cost
840that results in the same gross profit percentage for labor hours
841performed in work covered by subsection (1) as the dealer
842receives for labor performed in its customer retail repairs, as
843evidenced by the average of said dealer's gross profit
844percentage in the dealer's financial statements provided to the
845licensee for the 2 months preceding the dealer's written
846request, if the dealer provides in the written request the
847arithmetical mean of the hourly wage paid to all of its
848technicians during that preceding month. The arithmetical mean
849shall be the dealer cost used in that calculation.
850     2.  After an hourly labor rate is agreed or determined, the
851licensee shall uniformly apply and pay that hourly labor rate
852for all labor used by the dealer in performing work under
853subsection (1). However, a licensee shall not pay an hourly
854labor rate less than the hourly rate it was paying to the dealer
855for work done under subsection (1) on January 2, 2008. A
856licensee shall not eliminate or decrease, unless the licensee
857can prove that it has improved the technology related to a
858particular repair and thereby has lessened the average repair
859time, flat-rate times from or establish an unreasonable flat-
860rate time in its warranty repair manual, warranty time guide, or
861any other similarly named document. A licensee shall establish
862reasonable flat-rate labor times in its warranty repair manuals
863and warranty time guides for newly introduced model motor
864vehicles which are at least consistent with its existing
865documents. As used in this subsection, the terms "retail
866customer repair" and "similar work" are not limited to a repair
867to the same model vehicle or model year, but include prior
868repairs that resemble but are not identical to the repair for
869which the dealer is making a claim for compensation.
870     (c)  In determining the hourly labor rate calculated under
871subparagraph (b)1., a dealer's labor charges for internal
872vehicle repairs; vehicle reconditioning; repairs performed for
873group, fleet, insurance, or other third-party payers; discounted
874repairs of motor vehicles for government agencies; labor used in
875bona fide special events, specials, or express service; and
876promotional discounts shall not be included as retail customer
877repairs and shall be excluded from such calculations.
878     (5)  A licensee shall not review, change, or fail to pay a
879motor vehicle dealer for parts or labor determined under this
880section unless the dealer has requested a change, or the action
881is pursuant to the licensee's written, predetermined schedule
882for increasing parts or labor compensation that is not contrary
883to any provision of this section. A dealer may make written
884requests for changes in compensation for parts or labor
885performed under this section not more than annually
886semiannually. The dealer shall attach supporting documentation
887to each written request. Any increase in parts or labor
888reimbursement determined thereafter to be owed to the dealer
889shall be paid pursuant to this section retroactively for all
890claims filed by a dealer 15 days after the date of the
891licensee's receipt of the dealer's written request.
892     (7)  A licensee shall not require, influence, or attempt to
893influence a motor vehicle dealer to implement or change the
894prices for which it sells parts or labor in retail customer
895repairs. A licensee shall not implement or continue a policy,
896procedure, or program to any of its dealers in this state for
897compensation under this section which is inconsistent with this
898section.
899     Section 5.  If any provision of this act or the application
900thereof to any person or circumstance is held invalid, the
901invalidity shall not affect other provisions or applications of
902the act which can be given effect without the invalid provision
903or application, and to this end the provisions of this act are
904declared severable.
905     Section 6.  This act shall take effect upon becoming a law.


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