Title: Motor Vehicle Manufacturers and Dealers

Summary: Provides that motor vehicle dealer who constructs/alters sales/service facilities in reliance upon program/incentive offered by motor vehicle manufacturer is in compliance with certain manufacturer requirements for specified period; specifies eligibility for benefits under new/revised program/incentive; authorizes denial/suspension/revocation of license of manufacturer who establishes certain performance measurement criteria that adversely affect dealers; provides for complaint proceedings & award of damages; specifies burden of proof; prohibits certain discriminatory acts by manufacturer against dealer.

Full Text:
An act relating to motor vehicle manufacturers and dealers; amending s. 320.64, F.S.; providing that a motor vehicle dealer who constructs or alters sales or service facilities in reliance upon a program or incentive offered by a motor vehicle manufacturer is deemed to be in compliance with certain manufacturer requirements for a specified period; specifying eligibility for benefits under a new or revised program or i ncentive; providing construction; authorizing denial, suspension, or revocation of the license of a motor vehicle manufacturer who establishes certain performance measurement criteria that adversely affect motor vehicle dealers; providing for complaint pro ceedings and the award of damages; specifying burden of proof; creating s. 320.648, F.S.; prohibiting certain discriminatory acts by a motor vehicle manufacturer against a motor vehicle dealer; providing construction; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Paragraph (i) is added to subsection (10) of section 320.64, Florida Statutes, and subsection (41) is added to that section, to read: HB 1047 2017 320.64 Denial, suspension, or revocation of licens e; grounds.-A license of a licensee under s. 320.61 may be denied, suspended, or revoked within the entire state or at any specific location or locations within the state at which the applicant or licensee engages or proposes to engage in business, upon pr oof that the section was violated with sufficient frequency to establish a pattern of wrongdoing, and a licensee or applicant shall be liable for claims and remedies provided in ss. 320.695 and 320.697 for any violation of any of the following provisions. A licensee is prohibited from committing the following acts: (10) (i)1. If an applicant or licensee establishes a program, standard, or policy or in any manner offers a bonus, incentive, rebate, or other benefit to a motor vehicle dealer that is based, in whole or in part, on the construction of new sales or service facilities or the remodeling, improvement, renovation, expansion, replacement, or other alteration of the motor vehicle dealer's existing sales or service facilities, including installation of signs or other image elements, a motor vehicle dealer who completes such construction, alteration, or installation in reliance upon such program, standard, policy, bonus, incentive, rebate, or other benefit is deemed to be in full compliance with all of the applicant's or licensee's requirements for facilities, signs, and image elements for 50 HB 1047 2017 years after such completion. 2. If, during such-year period, the applicant or licensee revises, or establishes a new, program, standard, policy, bonus, incenti ve, rebate, or other benefit described in subparagraph 1., a motor vehicle dealer who completed a facility in reliance upon a prior program, standard, policy, bonus, incentive, rebate, or other benefit and elects not to comply with the applicant's or licen see's requirements for facilities, signs, or image elements under the revised or new program, standard, policy, bonus, incentive, rebate, or other benefit will not be eligible for any benefit under the revised or new program but shall remain entitled to al lbenefits under the prior program, plus any increase in benefits between the prior and revised or new programs, during the re mainder of the-year period. This paragraph does not obviate, affect, alter, or diminish the provisions of subsection (38). (41)(a) The applicant or licensee has established, implemented, or enforced criteria for measuring the sales or service performance of any of its franchised motor vehicle dealers in this state which may have a material or adverse effect on any motor vehicle dealer; which are unfair, unreasonable, arbitrary, or inequitable; or which do not include all local and regional criteria, data, and facts. Relevant and HB 1047 2017 material national or state criteria, data, or facts may be considered, but comparison to such data sh all not outweigh the local and regional criteria, data and facts. Relevant and material national or state criteria, data, or facts include, but are not limited to, motor vehicle dealerships of comparable size in comparable markets with comparable buyer pro files. If such performance measurement criteria are based, in whole or in part, on a survey, such survey shall be based on a statistically significant and valid random sample. An applicant, licensee, or common entity, or an affiliate thereof, that seeks to establish, implement, or enforce against any motor vehicle dealer any such performance measurement criteria shall, upon the request of the motor vehicle dealer, describe in writing to the motor vehicle dealer, in detail, how the performance measurement cr iteria were designed, calculated, established, and applied. (b) A motor vehicle dealer against whom such performance measurement criteria are sought to be used for any purpose adverse to the motor vehicle dealer may file a complaint in any court of compe tent jurisdiction alleging that such performance measurement criteria are in violation of paragraph (a) and, if successful, is entitled to damages pursuant to s. 320.695 plus attorney fees and injunctive relief. The court may order temporary, preliminary, and permanent injunctive relief without regard to the existence of an adequate remedy at law or irreparable harm and without requiring a bond of any HB 1047 2017 complainant. (c) In any proceeding brought under paragraph (b), the applicant or licensee bears the ultim ate burden of proof that the performance measurement criteria comply with this subsection and have been implemented and enforced uniformly by the applicant or licensee among its dealers in this state. A motor vehicle dealer who can demonstrate that a viol ation of, or failure to comply with, any of the preceding provisions by an applicant or licensee will or can adversely and pecuniarily affect the complaining dealer, shall be entitled to pursue all of the remedies, procedures, and rights of recovery availa ble under ss. 320.695 and 320.697. Section 2. Section 320.648, Florida Statutes, is created to read: 320.648 Discrimination prohibited.-(1) For the purpose of eliminating discrimination by an applicant or licensee against any motor vehicle dealer in this state, and to avoid competitive disadvantages of a motor vehicle dealer by reason of differences in dealer cost of any motor vehicle, an applicant or licensee may not sell or offer to sell a new motor vehicle to a motor vehicle dealer at a lower ac tual, effective cost, including the cost of the vehicle transportation, than the actual, effective cost at which the same model similarly equipped is offered or available to another HB 1047 2017 same line-make dealer in this state during a similar time period. (2) An applicant or licensee may not discriminate among its same line-make dealers in this state by the use of a promotional, incentive, or bonus plan, program, device, or other benefit, whether received by the motor vehicle dealer at or later than the time of sale of the new motor vehicle to the dealer, which results in the sale or offer to sell a new motor vehicle to a motor vehicle dealer at a lower actual, effective cost, including the cost of the vehicle transportation, than the actual, effective cost at whi ch the same model similarly equipped is offered or available to another same line-make dealer in this state during a similar time period. This subsection does not prohibit an applicant or licensee from offering a promotional, incentive, or bonus plan, prog ram, device, or other benefit that, in effect, does not discriminate against and is functionally available to all competing dealers of the same line-make in this state on substantially comparable terms and that contains fair and reasonably achievable sales or service objectives. (3) This section does not obviate, affect, alter, or diminish the provisions of s. 320.64(38). Section 3. This act shall take effect upon becoming a law.