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       Florida Senate - 2010                                    SB 2410
       By Senator Baker
       20-00962A-10                                          20102410__
    1                        A bill to be entitled                      
    2         An act relating to motor vehicle dealers; amending s.
    3         320.60, F.S.; redefining the terms “agreement” or
    4         “franchise agreement” to include certain ancillary
    5         agreements; amending s. 320.605, F.S.; revising
    6         legislative intent provisions; amending s. 320.61,
    7         F.S.; providing clarification regarding licensure
    8         renewal requirements; amending s. 320.63, F.S.;
    9         requiring the submission of an affidavit with a
   10         license renewal application; amending s. 320.64, F.S.;
   11         requiring certain payments and payment terms to
   12         dealers following an announcement that the dealer’s
   13         line-make will be discontinued; prohibiting certain
   14         requirements that a dealer enter into site control
   15         agreements or exclusive use agreements relating to
   16         dealership property; amending s. 320.695, F.S.;
   17         authorizing certain dealer associations to seek
   18         injunctive relief regarding conduct by a licensee;
   19         amending s. 320.699, F.S.; authorizing certain dealer
   20         associations to seek administrative relief regarding
   21         conduct by a licensee; providing an effective date.
   23  Be It Enacted by the Legislature of the State of Florida:
   25         Section 1. Subsection (1) of section 320.60, Florida
   26  Statutes, is amended to read:
   27         320.60 Definitions for ss. 320.61-320.70.—Whenever used in
   28  ss. 320.61-320.70, unless the context otherwise requires, the
   29  following words and terms have the following meanings:
   30         (1) “Agreement” or “franchise agreement” means a contract,
   31  franchise, new motor vehicle franchise, sales and service
   32  agreement, or dealer agreement or any other terminology used to
   33  describe the contractual relationship between a manufacturer,
   34  factory branch, distributor, or importer, and a motor vehicle
   35  dealer, including any ancillary agreement relating to a dealer’s
   36  facilities, staffing, or operations or relating to a licensee’s
   37  programs, policies, or requirements pursuant to which the motor
   38  vehicle dealer is authorized to transact business pertaining to
   39  motor vehicles of a particular line-make.
   40         Section 2. Section 320.605, Florida Statutes, is amended to
   41  read:
   42         320.605 Legislative intent.—It is the intent of the
   43  Legislature to protect the public health, safety, and welfare of
   44  the citizens of the state by regulating the licensing of motor
   45  vehicle dealers and manufacturers, maintaining competition,
   46  reconciling the disparity in economic power which manufacturers
   47  have over motor vehicle dealers, providing consumer protection
   48  and fair trade, and providing minorities with opportunities for
   49  full participation as motor vehicle dealers.
   50         Section 3. Subsection (2) of section 320.61, Florida
   51  Statutes, is amended to read:
   52         320.61 Licenses required of motor vehicle manufacturers,
   53  distributors, importers, etc.—
   54         (2) The department may prescribe an abbreviated application
   55  for renewal of a license if the licensee had previously filed an
   56  initial application pursuant to s. 320.63. The application for
   57  renewal shall include any information necessary to bring current
   58  the information required in the initial application. The
   59  department shall not renew any license unless the licensee
   60  complies with the provisions of s. 320.63.
   61         Section 4. Present subsection (7) of section 320.63,
   62  Florida Statutes, is renumbered as subsection (8), and a new
   63  subsection (7) is added to that section, to read:
   64         320.63 Application for license; contents.—Any person
   65  desiring to be licensed pursuant to ss. 320.60-320.70 shall make
   66  application therefor to the department upon a form containing
   67  such information as the department requires. The department
   68  shall require, with such application or otherwise and from time
   69  to time, all of the following, which information may be
   70  considered by the department in determining the fitness of the
   71  applicant or licensee to engage in the business for which the
   72  applicant or licensee desires to be licensed:
   73         (7) An affidavit annually with each license renewal
   74  application, acknowledging that the provisions of the licensee’s
   75  franchise agreements with motor vehicle dealers in this state
   76  are consistent with and not prohibited by ss. 320.60-320.70 and
   77  rules adopted thereunder then in effect, and that any provisions
   78  in such agreements which are inconsistent with or prohibited by
   79  such laws or rules then in effect are void.
   80         Section 5. Paragraph (e) is added to subsection (36) of
   81  section 320.64, Florida Statutes, and subsection (39) is added
   82  to that section, to read:
   83         320.64 Denial, suspension, or revocation of license;
   84  grounds.—A license of a licensee under s. 320.61 may be denied,
   85  suspended, or revoked within the entire state or at any specific
   86  location or locations within the state at which the applicant or
   87  licensee engages or proposes to engage in business, upon proof
   88  that the section was violated with sufficient frequency to
   89  establish a pattern of wrongdoing, and a licensee or applicant
   90  shall be liable for claims and remedies provided in ss. 320.695
   91  and 320.697 for any violation of any of the following
   92  provisions. A licensee is prohibited from committing the
   93  following acts:
   94         (36)
   95         (e) If a licensee or its common entity publicly announces
   96  that a line-make will be discontinued, presently or in the
   97  future, a motor vehicle dealer is entitled to immediate payment
   98  of fair market value under this subsection in exchange for
   99  cancelling any further franchise rights to the line-make, except
  100  payments owed to the dealer in the ordinary course of business.
  101  The fair market value for the franchise shall be the greater of
  102  the value determined as of the day of the initial public
  103  announcement or the value determined on the day that is 12
  104  months before that date.
  105         (39) Notwithstanding the terms of any franchise agreement,
  106  the applicant or licensee has directly or indirectly required a
  107  motor vehicle dealer or applicant for a franchise to enter into
  108  a site control agreement or exclusive use agreement. As used in
  109  this subsection, the terms “site control agreement” and
  110  “exclusive use agreement” include any agreement that has the
  111  effect of requiring the motor vehicle dealer to establish or
  112  maintain exclusive dealership facilities or restricting the
  113  ability of the dealer or the lessor, if the dealership facility
  114  is leased, to transfer, sell, lease, or change the use of the
  115  dealership premises by sublease, lease, collateral pledge of
  116  lease, right of first refusal to purchase or lease, option to
  117  purchase, option to lease, or other similar agreement,
  118  regardless of the parties to such agreement.
  120  A motor vehicle dealer who can demonstrate that a violation of,
  121  or failure to comply with, any of the preceding provisions by an
  122  applicant or licensee will or can adversely and pecuniarily
  123  affect the complaining dealer, shall be entitled to pursue all
  124  of the remedies, procedures, and rights of recovery available
  125  under ss. 320.695 and 320.697.
  126         Section 6. Section 320.695, Florida Statutes, is amended to
  127  read:
  128         320.695 Injunction.—In addition to the remedies provided in
  129  this chapter, and notwithstanding the existence of any adequate
  130  remedy at law, the department, or any motor vehicle dealer in
  131  the name of the department and state and for the use and benefit
  132  of the motor vehicle dealer, or any association that is
  133  comprised of a minimum of 100 new motor vehicle dealers licensed
  134  in this state, which represents the collective interests of its
  135  members and has more than one member directly and adversely
  136  affected by the action or conduct of an applicant or licensee,
  137  is authorized to make application to any circuit court of the
  138  state for the grant, upon a hearing and for cause shown, of a
  139  temporary or permanent injunction, or both, restraining any
  140  person from acting as a licensee under the terms of ss. 320.60
  141  320.70 without being properly licensed hereunder, or from
  142  violating or continuing to violate any of the provisions of ss.
  143  320.60-320.70, or from failing or refusing to comply with the
  144  requirements of this law or any rule or regulation adopted
  145  hereunder. Such injunction shall be issued without bond. A
  146  single act in violation of the provisions of ss. 320.60-320.70
  147  shall be sufficient to authorize the issuance of an injunction.
  148  However, this statutory remedy shall not be applicable to any
  149  motor vehicle dealer after final determination by the department
  150  under s. 320.641(3).
  151         Section 7. Section 320.699, Florida Statutes, is amended to
  152  read:
  153         320.699 Administrative hearings and adjudications;
  154  procedure.—
  155         (1) A motor vehicle dealer, or person with entitlements to
  156  or in a motor vehicle dealer, who is directly and adversely
  157  affected by the action or conduct of an applicant or licensee
  158  which is alleged to be in violation of any provision of ss.
  159  320.60-320.70, or any association that is comprised of a minimum
  160  of 100 new motor vehicle dealers licensed in this state, which
  161  represents the collective interests of its members and has more
  162  than one member directly and adversely affected by the action or
  163  conduct of an applicant or licensee that is alleged to be in
  164  violation of any provision of ss. 320.60-320.70, may seek a
  165  declaration and adjudication of its rights with respect to the
  166  alleged action or conduct of the applicant or licensee by:
  167         (a) Filing with the department a request for a proceeding
  168  and an administrative hearing which conforms substantially with
  169  the requirements of ss. 120.569 and 120.57; or
  170         (b) Filing with the department a written objection or
  171  notice of protest pursuant to s. 320.642.
  172         (2) If a written objection or notice of protest is filed
  173  with the department under paragraph (1)(b), a hearing shall be
  174  held not sooner than 180 days nor later than 240 days from the
  175  date of filing of the first objection or notice of protest,
  176  unless the time is extended by the administrative law judge for
  177  good cause shown. This subsection shall govern the schedule of
  178  hearings in lieu of any other provision of law with respect to
  179  administrative hearings conducted by the Department of Highway
  180  Safety and Motor Vehicles or the Division of Administrative
  181  Hearings, including performance standards of state agencies,
  182  which may be included in current and future appropriations acts.
  183         Section 8. This act shall take effect July 1, 2010.

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