| 44 | 47 | | |
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| 45 | 48 | | An Act relating to motor vehicle dealers ; amending 47 |
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| 46 | 49 | | O.S. 2021, Section 562, as amended by Section 3, |
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| 47 | 50 | | Chapter 29, O.S.L. 2023 (47 O.S. Supp. 2023, Section |
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| 48 | 51 | | 562), which relates to definitions; modifying |
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| 49 | 52 | | definition; amending 47 O.S. 2021, Section 565, as |
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| 50 | 53 | | last amended by Section 8, Chapter 29, O.S.L . 2023 |
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| 51 | 54 | | (47 O.S. Supp. 2023, Section 565), which relates to |
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| 52 | 55 | | denial, revocation, or suspension of license; |
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| 53 | 56 | | modifying entity subject to license denial, |
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| 54 | 57 | | revocation, suspension, or fine; m odifying reasons |
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| 55 | 58 | | for license denial, revocation, suspension, or fine; |
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| 56 | 59 | | prohibiting certain withholding of proportionate |
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| 57 | 60 | | share of vehicles; requiring certain considerations |
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| 58 | 61 | | for location of dealership change; requiring purchase |
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| 59 | 62 | | of dealership if certain conditions are met; setting |
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| 60 | 63 | | value for purchase; setting process if parties cann ot |
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| 61 | 64 | | agree; requiring certain maintenance of records for |
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| 62 | 65 | | period of time; requiri ng certain written request be |
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| 63 | 66 | | received within certain time frame; requiring certain |
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| 64 | 67 | | written request conta in certain information; amending |
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| 65 | 68 | | 47 O.S. 2021, Section 565.2, as amended by S ection |
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| 66 | 69 | | 10, Chapter 29, O.S.L. 2023 (47 O.S. Supp. 2023, |
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| 67 | 70 | | Section 565.2), which relates to termination, |
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| 68 | 71 | | cancellation, or nonrenewal of new motor vehicle |
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| 69 | 72 | | dealer franchise; updating statutory reference; |
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| 70 | 73 | | allowing franchise to remain in full force and effect |
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| 71 | 74 | | through any appeal; modifying actions required to be |
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| 103 | 105 | | requiring certain purchase at certain value; setting |
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| 104 | 106 | | certain valuation; setting process if parties cannot |
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| 105 | 107 | | agree; allowing for certain sole ownership, |
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| 106 | 108 | | possession, use, and control of certain property; |
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| 107 | 109 | | requiring payment of reasonable rent if certain |
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| 108 | 110 | | conditions are met; requiring compensation for |
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| 109 | 111 | | certain pecuniary loss; requiring certain documents |
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| 110 | 112 | | be provided for payment to be made; providing for |
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| 111 | 113 | | appraisal process; requiring certain oath be taken; |
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| 112 | 114 | | requiring certain average be taken to determine |
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| 113 | 115 | | value; allowing for appointment of third appraiser to |
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| 114 | 116 | | determine fair market value if certain conditions are |
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| 115 | 117 | | met; requiring appraisers make certain valuation; |
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| 116 | 118 | | requiring payment within certain time frame; and |
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| 117 | 119 | | providing an effective date . |
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| 118 | 120 | | |
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| 119 | 121 | | |
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| 120 | 122 | | |
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| 121 | 123 | | |
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| 122 | 124 | | |
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| 123 | 127 | | BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA: |
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| 124 | 128 | | SECTION 1. AMENDATORY 47 O.S. 2021, Section 562, as |
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| 125 | 129 | | amended by Section 3, Chapter 29, O.S.L. 2023 (47 O.S. Supp. 2023, |
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| 126 | 130 | | Section 562), is amended to read as follows: |
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| 127 | 131 | | Section 562. The following words, terms, and phrases, when used |
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| 128 | 132 | | in Sections 561 thro ugh 567, 572, 578.1, 579 , and 579.1 of this |
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| 129 | 133 | | title, shall have the mea nings respectively ascribed to them in this |
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| 130 | 134 | | section, except where the context clearly in dicates a different |
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| 131 | 135 | | meaning: |
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| 164 | 167 | | b. all-terrain vehicles, utility vehicles, and |
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| 165 | 168 | | motorcycles used exc lusively for off-road use which |
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| 166 | 169 | | are sold by a retail implement dealer; |
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| 167 | 170 | | 2. “New motor vehicle dealer ” means any person, firm, |
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| 168 | 171 | | association, corporation, or trust not excluded by this paragraph |
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| 169 | 172 | | who sells, offers for sale, advertises to sell, leases , or displays |
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| 170 | 173 | | new motor vehicles an d holds a bona fide contra ct or franchise in |
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| 171 | 174 | | effect with a manufacturer or di stributor authorized by the |
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| 172 | 175 | | manufacturer to make predelivery preparation of such vehicles sol d |
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| 173 | 176 | | to purchasers and to perform post-sale work pursuant to the |
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| 174 | 177 | | manufacturer’s or distributor’s warranty. As used h erein, |
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| 175 | 178 | | “authorized predelivery preparation ” means the rendition by the |
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| 176 | 179 | | dealer of services and safety adjustments on each new mot or vehicle |
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| 177 | 180 | | in accordance with the procedure and safety standards r equired by |
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| 178 | 181 | | the manufacturer of the vehicle to be made before its delivery to |
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| 179 | 182 | | the purchaser. “Performance of authorized post-sale work pursuant |
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| 180 | 183 | | to the warranty”, as used herein, means the rendition of ser vices |
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| 181 | 184 | | which are required by the terms of the warrant y that stands extended |
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| 182 | 185 | | to the vehicle at the time of its sale and are to be made in |
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| 215 | 217 | | 567, 572, 578.1, 579, and 579.1 of this title, the terms new motor |
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| 216 | 218 | | vehicle dealer and “new motor vehicle dealership ” shall be |
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| 217 | 219 | | synonymous. The term new motor vehicle dealer does not include: |
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| 218 | 220 | | a. receivers, trustees, administrators, executors, |
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| 219 | 221 | | guardians, or other persons appointed by or acting |
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| 220 | 222 | | under judgment or order of any court, |
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| 221 | 223 | | b. public officers while performing or in operation of |
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| 222 | 224 | | their duties, |
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| 223 | 225 | | c. employees of persons, corporations, or associations |
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| 224 | 226 | | enumerated in subparagraph a of this paragraph when |
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| 225 | 227 | | engaged in the specific performance of their duties as |
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| 226 | 228 | | such employees, or |
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| 227 | 229 | | d. a powersports vehicl e dealer; |
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| 228 | 230 | | 3. “Motor vehicle salesperson” means any person who, for gain |
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| 229 | 231 | | or compensation of any kind, either direc tly or indirectly, |
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| 230 | 232 | | regularly or occasionally, by any form o f agreement or arrangement, |
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| 231 | 233 | | assists or offers assistance to customers in selecting a vehicle ; |
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| 232 | 234 | | explains product performance, applicati on, and benefits to |
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| 233 | 235 | | customers; describes optional equipment available on the vehicle ; |
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| 266 | 267 | | this definition does not apply to employees of any manufacturer or |
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| 267 | 268 | | distributor who has new motor vehicle sales and service agr eements |
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| 268 | 269 | | with new motor vehicle dealers in this state and does not sell motor |
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| 269 | 270 | | vehicles directly to consumers; |
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| 270 | 271 | | 4. “Commission” means the Oklahoma New Motor Vehicle |
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| 271 | 272 | | Commission; |
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| 272 | 273 | | 5. “Manufacturer” means any person, firm, association, |
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| 273 | 274 | | corporation, or trust, resident or nonresident, that manufactures or |
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| 274 | 275 | | assembles new and unused motor vehicles or that engages in the |
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| 275 | 276 | | fabrication or assembly of motorized vehicles of a type required to |
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| 276 | 277 | | be registered in this state; |
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| 277 | 278 | | 6. “Distributor” means any person, firm, associatio n, |
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| 278 | 279 | | corporation, or trust, resident or nonresid ent, that, being |
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| 279 | 280 | | authorized by the original manu facturer, in whole or in part sells |
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| 280 | 281 | | or distributes new and unused motor vehicles to new motor vehicle |
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| 281 | 282 | | dealers, or that maintains distributor representatives; |
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| 282 | 283 | | 7. “Factory branch” means any branch office maintained by a |
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| 283 | 284 | | person, firm, association, corporation , or trust that manufactures |
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| 284 | 285 | | or assembles motor vehicles for the sale of motor vehicles to |
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| 315 | 315 | | 8. “Distributor branch” means any branch office similarly |
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| 316 | 316 | | maintained by a distributor for the same p urposes a factory bra nch |
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| 317 | 317 | | is maintained; |
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| 318 | 318 | | 9. “Factory representative” means any officer or agent engaged |
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| 319 | 319 | | as a representative of a manufacturer of motor vehicles or by a |
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| 320 | 320 | | factory branch, for the purpose of making or promoting the sale of |
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| 321 | 321 | | its motor vehicles, or for supervising or contacting its dealers or |
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| 322 | 322 | | prospective dealers; |
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| 323 | 323 | | 10. “Distributor representative” means any person, firm, |
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| 324 | 324 | | association, corporation , or trust and each officer and employee |
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| 325 | 325 | | thereof engaged as a re presentative of a distributor or distrib utor |
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| 326 | 326 | | branch of motor vehicles, for the purpose of mak ing or promoting the |
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| 327 | 327 | | sale of its motor vehicles, or for supervising o r contacting its |
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| 328 | 328 | | dealers or prospective dealers; |
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| 329 | 329 | | 11. “Franchise” means any contract or agreement between a new |
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| 330 | 330 | | motor vehicle dealer and a manufacturer of a new motor vehicle or |
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| 331 | 331 | | its distributor or factory branch by which the new motor vehicle |
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| 332 | 332 | | dealer is authorized to engage in the activities of a new motor |
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| 333 | 333 | | vehicle dealer as defined by this section; |
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| 334 | 334 | | 12. “New or unused motor vehicle” means a vehicle which is in |
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| 335 | 335 | | the possession of the manufac turer or distributor or has been sold |
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| 366 | 365 | | anyone other than a licensed franchised n ew motor vehicle dealer of |
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| 367 | 366 | | the same line-make; |
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| 368 | 367 | | 13. “Area of responsibility” means the geographical area, as |
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| 369 | 368 | | designated by the manufacturer , factory branch, factory |
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| 370 | 369 | | representative, distributor, distributor branc h, or distributor |
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| 371 | 370 | | representative, in which the new mo tor vehicle dealer is held |
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| 372 | 371 | | responsible for the promotion and developm ent of sales and rend ering |
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| 373 | 372 | | of service for the make of motor vehicle for which the new motor |
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| 374 | 373 | | vehicle dealer holds a franchise or sellin g agreement; |
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| 375 | 374 | | 14. “Off premises” means at a location other than the address |
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| 376 | 375 | | designated on the new motor vehicle dealer’s license; |
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| 377 | 376 | | 15. “Sponsoring entity” means any person, firm, ass ociation, |
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| 378 | 377 | | corporation, or trust which has control, either permanently or |
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| 379 | 378 | | temporarily, over the rea l property upon which the off-premises sale |
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| 380 | 379 | | or display is conduc ted; |
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| 381 | 380 | | 16. “Product” means new motor vehi cles and new motor vehicle |
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| 382 | 381 | | parts; |
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| 383 | 382 | | 17. “Service” means motor vehicle warranty repairs including |
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| 384 | 383 | | both parts and labor; |
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| 416 | 414 | | 20. “Factory” means a manufacturer, distributor, factory |
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| 417 | 415 | | branch, distributor branch, factory repr esentative, or distributor |
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| 418 | 416 | | representative, which manufactures or distributes vehicle products; |
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| 419 | 417 | | 21. “Powersports vehicle” means motorcycles, sco oters, mopeds, |
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| 420 | 418 | | all-terrain vehicles, and utility vehicles; |
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| 421 | 419 | | 22. “Powersports vehicle dea ler” means any person, firm, or |
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| 422 | 420 | | corporation that is in the business of selling any new powersports |
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| 423 | 421 | | vehicles except for retail implement dea lers; |
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| 424 | 422 | | 23. “Retail implement dealer” means a business engaged |
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| 425 | 423 | | primarily in the sale of farm tractors as defined in Se ction 1-118 |
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| 426 | 424 | | of this title or implements of husbandry as de fined in Section 1-125 |
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| 427 | 425 | | of this title or a combination thereof ; |
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| 428 | 426 | | 24. “Consumer data” means nonpublic personal information as |
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| 429 | 427 | | defined in 15 U.S.C., Section 6809(4) as it existed on January 1, |
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| 430 | 428 | | 2023, that is: |
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| 431 | 429 | | a. collected by a new motor vehicle dealer, and |
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| 432 | 430 | | b. provided by the new motor vehicle dealer directly to a |
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| 433 | 431 | | manufacturer or third part y acting on behalf of a |
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| 434 | 432 | | manufacturer. |
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| 467 | 464 | | SECTION 2. AMENDATORY 47 O.S. 202 1, Section 565, as last |
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| 468 | 465 | | amended by Section 8, Chapter 29, O.S.L. 2023 (47 O.S. Supp. 2023, |
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| 469 | 466 | | Section 565), is amended to read as follows: |
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| 470 | 467 | | Section 565. A. The Oklahoma New Motor Vehicle Commis sion may |
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| 471 | 468 | | deny an application for a license, revoke or suspend a license , or |
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| 472 | 469 | | impose a fine against any person or entity, not to exceed Ten |
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| 473 | 470 | | Thousand Dollars ($10,000.00) per occurrence, that violates any |
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| 474 | 471 | | provision of Sections 561 through 567, 572, 578.1, 579, and 579.1 of |
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| 475 | 472 | | this title or for any of the following reasons: |
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| 476 | 473 | | 1. On satisfactory proof of unfitness of the applicant in any |
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| 477 | 474 | | application for any license under the provisions of Section 561 et |
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| 478 | 475 | | seq. of this title; |
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| 479 | 476 | | 2. For any material misstat ement made by an applicant in any |
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| 480 | 477 | | application for any lic ense under the provisio ns of Section 561 et |
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| 481 | 478 | | seq. of this title; |
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| 482 | 479 | | 3. For any failure to comply with any provision of Section 561 |
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| 483 | 480 | | et seq. of this title or a ny rule promulgated by the Commission |
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| 484 | 481 | | under authority vested in it by Section 561 et seq. of this titl e; |
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| 485 | 508 | | 4. A change of cond ition after license is granted resulting in |
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| 486 | 509 | | failure to maintain the qualifications for license; |
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| 487 | 510 | | 5. Being a new motor vehicle dealer who : |
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| 488 | 511 | | a. has required a purchaser of a new m otor vehicle, as a |
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| 489 | 512 | | condition of sale and delivery thereof , to also |
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| 490 | 513 | | purchase special features, appliance s, accessories, or |
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| 518 | 514 | | equipment not desired or requested by the purchaser |
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| 519 | 515 | | and installed by the new motor vehicle dealer, |
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| 520 | 516 | | b. uses any false or misleading adv ertising in connection |
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| 521 | 517 | | with business as a new motor vehic le dealer, |
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| 522 | 518 | | c. has committed any unlawful act w hich resulted in the |
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| 523 | 519 | | revocation of any similar license in another state, |
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| 524 | 520 | | d. has failed or refused to perform any written agreement |
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| 525 | 521 | | with any retail buyer involving the sale of a motor |
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| 526 | 522 | | vehicle, |
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| 527 | 523 | | e. has been convicted of a felony crime t hat |
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| 528 | 524 | | substantially relates to the occupation of a new motor |
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| 529 | 525 | | vehicle dealer and poses a reasonable threat to public |
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| 530 | 526 | | safety, |
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| 531 | 527 | | f. has committed a fraudulent act in selling, purchasi ng, |
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| 532 | 528 | | or otherwise dealing in new motor vehicles or has |
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| 533 | 529 | | misrepresented the terms a nd conditions of a sale, |
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| 534 | 530 | | purchase or contract for sale or purchase of a new |
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| 569 | 564 | | similar product using contract forms that do not |
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| 570 | 565 | | conspicuously disclose the identity of the service |
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| 571 | 566 | | contract provider; |
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| 572 | 567 | | 6. Being a new motor vehicle salesperson who is not employed as |
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| 573 | 568 | | such by a licensed new motor vehicle dealer; |
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| 574 | 569 | | 7. Being a new motor vehicle dealer w ho: |
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| 575 | 570 | | a. does not have an established plac e of business, |
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| 576 | 571 | | b. does not provide for a suitable repair shop separate |
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| 577 | 572 | | from the display room with ample sp ace to repair or |
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| 578 | 573 | | recondition one or more v ehicles at the same time, and |
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| 579 | 574 | | which is staffed with properly tr ained and qualified |
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| 580 | 575 | | repair technicians and is equipped with such parts, |
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| 581 | 576 | | tools, and equipment as may be requisite for the |
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| 582 | 577 | | servicing of motor vehicles in such a manner as to |
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| 583 | 578 | | make them comply with the safety laws of this state |
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| 584 | 579 | | and to properly fulfill the dealer ’s or manufacturer’s |
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| 585 | 580 | | warranty obligation, |
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| 619 | 613 | | work pursuant to the manufacturer’s or distributor’s |
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| 620 | 614 | | warranty, |
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| 621 | 615 | | d. employs a person without obtaining a cert ificate of |
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| 622 | 616 | | registration for the person, or utilizes the services |
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| 623 | 617 | | of used motor vehicle lots or dealers or ot her |
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| 624 | 618 | | unlicensed persons in connection with the sale of new |
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| 625 | 619 | | motor vehicles, |
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| 626 | 620 | | e. does not properly service a new motor vehicle before |
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| 627 | 621 | | delivery of same to the original purchaser thereof, or |
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| 628 | 622 | | f. fails to order and stoc k a reasonable number of new |
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| 629 | 623 | | motor vehicles necessary to meet consumer demand for |
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| 630 | 624 | | each of the new moto r vehicles included in the new |
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| 631 | 625 | | motor vehicle dealer’s franchise agreement, unless the |
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| 632 | 626 | | new motor vehicles are not readily available from the |
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| 633 | 627 | | manufacturer or distributor due to limited production; |
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| 634 | 628 | | 8. Being a factory that has: |
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| 670 | 663 | | (2) to order or accept delivery of any motor vehicle |
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| 671 | 664 | | with special features, appliances, accessories, |
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| 672 | 665 | | or equipment not included in the list p rice of |
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| 673 | 666 | | the motor vehicles as publicly advertised by the |
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| 674 | 667 | | manufacturer thereof, or |
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| 675 | 668 | | (3) to order or accept delivery of any parts, |
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| 676 | 669 | | accessories, equipment, machinery, tools, |
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| 677 | 670 | | appliances, or any commodity whatsoever, |
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| 678 | 671 | | b. induced under threat o r discrimination by the |
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| 679 | 672 | | withholding from delivery to a new motor vehicle |
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| 680 | 673 | | dealer certain models of moto r vehicles, changing or |
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| 681 | 674 | | amending unilaterally the new motor vehicle dealer’s |
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| 682 | 675 | | allotment of motor vehicles, and/or withholding and |
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| 683 | 676 | | delaying delivery of the vehicles out of the ordinary |
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| 684 | 677 | | course of business, in order to induce by such |
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| 685 | 678 | | coercion any new motor vehicle dealer to participate |
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| 686 | 705 | | or contribute to any local or national advertising |
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| 687 | 706 | | fund controlled directly or indirectly by the facto ry |
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| 688 | 707 | | or for any other purpo ses such as contest, |
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| 689 | 708 | | “giveaways”, or other so-called sales promotional |
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| 690 | 709 | | devices, and/or change of quotas in any sales contest; |
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| 691 | 710 | | or has required new motor vehicle dealers, as a |
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| 692 | 711 | | condition to receiving their vehicle allotmen t, to |
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| 693 | 712 | | order a certain percentage of the vehicle s with |
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| 721 | 713 | | optional equipment not specified by the new motor |
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| 722 | 714 | | vehicle dealer; however , nothing in this section shall |
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| 723 | 715 | | prohibit a factory from supporting an advertising |
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| 724 | 716 | | association which is open to all new motor vehicle |
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| 725 | 717 | | dealers on the same basis, |
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| 726 | 718 | | c. used a performance standard, sales objective, or |
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| 727 | 719 | | program for measuring dealer performance tha t may have |
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| 728 | 720 | | a material effect on a right of the dealer to vehicle |
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| 729 | 721 | | allocation; or payment under any incentive or |
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| 730 | 722 | | reimbursement program that is unfair, unreasonable, |
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| 731 | 723 | | inequitable, and not based on accurate information, |
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| 732 | 724 | | d. used a performance standard for measur ing sales or |
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| 733 | 725 | | service performance o f any new motor vehicle dealer |
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| 734 | 726 | | under the terms of the franchise agreement which: |
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| 735 | 727 | | (1) is unfair, unreasonable, arbitrary, or |
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| 736 | 728 | | inequitable, and |
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| 737 | 755 | | (2) does not consider the relevant and material local |
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| 738 | 756 | | and state or regional crite ria, including |
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| 739 | 757 | | prevailing economic conditions affecting the |
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| 740 | 758 | | sales or service perf ormance of a vehicle dealer, |
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| 741 | 759 | | vehicle allocation from the manufacturer , or and |
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| 742 | 760 | | any relevant and material d ata and facts |
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| 743 | 761 | | presented by the dealer in writing within thirty |
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| 744 | 762 | | (30) days of the written notice of the |
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| 772 | 763 | | manufacturer to the dealer of its intention to |
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| 773 | 764 | | cancel, terminate, or not renew the dealer’s |
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| 774 | 765 | | franchise agreement, |
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| 775 | 766 | | e. failed or refused to sell, or offer for sale, new |
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| 776 | 767 | | motor vehicles to all of its authorized same line-make |
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| 777 | 768 | | franchised new motor vehicle dealers a t the same price |
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| 778 | 769 | | for a comparably equipped m otor vehicle, on the same |
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| 779 | 770 | | terms, with no different ial in functionally available |
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| 780 | 771 | | discount, allowance, credit , or bonus, except as |
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| 781 | 772 | | provided in subparagraph e of paragraph 9 of this |
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| 782 | 773 | | subsection, |
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| 783 | 774 | | f. failed to provide reasonable c ompensation to a new |
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| 784 | 775 | | motor vehicle dealer substantially equivalent to the |
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| 785 | 776 | | actual cost of providing a manufacturer required |
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| 786 | 777 | | loaner or rental vehicle to any consumer who is havin g |
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| 787 | 778 | | a vehicle serviced at the dealership. For purposes of |
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| 788 | 805 | | this paragraph, actual cost is the average cost in the |
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| 789 | 806 | | new motor vehicle dealer’s region for the rental o f a |
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| 790 | 807 | | substantially similar make and model as the vehicle |
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| 791 | 808 | | being serviced, or |
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| 792 | 809 | | g. failed to make available to its new motor vehicle |
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| 793 | 810 | | dealers a fair and proportional share of all n ew |
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| 794 | 811 | | vehicles distributed to sam e line-make dealers in this |
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| 795 | 812 | | state, subject to the sam e reasonable terms, including |
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| 823 | 813 | | any vehicles distributed from a common new vehicle |
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| 824 | 814 | | inventory pool outside of the factory’s ordinary |
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| 825 | 815 | | allocation process such as any vehicles the factory |
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| 826 | 816 | | reserves to distribut e on a discretionary basis; |
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| 827 | 817 | | 9. Being a factory that : |
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| 828 | 818 | | a. has attempted to coerce or has coerced any new motor |
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| 829 | 819 | | vehicle dealer to enter into any agr eement or to |
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| 830 | 820 | | cancel any agreement; has failed to act in good faith |
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| 831 | 821 | | and in a fair, equitable, and nondiscriminatory |
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| 832 | 822 | | manner; has directly or indirectly coerced, |
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| 833 | 823 | | intimidated, threatened , or restrained any new motor |
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| 834 | 824 | | vehicle dealer; has acted dishonestly; or has failed |
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| 835 | 825 | | to act in accordance with the reasonable standards of |
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| 836 | 826 | | fair dealing, |
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| 837 | 827 | | b. has failed to compensate its dealers for the work and |
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| 838 | 828 | | services they are required to perform in connecti on |
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| 839 | 855 | | with the dealer’s delivery and preparation obligation s |
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| 840 | 856 | | according to the agreements on file with the |
|---|
| 841 | 857 | | Commission which must be found by the Commission to be |
|---|
| 842 | 858 | | reasonable, or has failed to adequately and fairly |
|---|
| 843 | 859 | | compensate its dealers for labor, parts , and other |
|---|
| 844 | 860 | | expenses incurred by the dealer to perform under and |
|---|
| 845 | 861 | | comply with manufacturer’s warranty agreements and |
|---|
| 846 | 862 | | recall repairs which shall include diagnostic work as |
|---|
| 874 | 863 | | applicable and assistance requested by a consumer |
|---|
| 875 | 864 | | whose vehicle was subjected to an over-the-air or |
|---|
| 876 | 865 | | remote change, repair, or upda te to any part, system, |
|---|
| 877 | 866 | | accessory, or function by the manufacturer a nd |
|---|
| 878 | 867 | | performed by the dealer in order to satisfy th e |
|---|
| 879 | 868 | | consumer. Time allowances for the diagnosis and |
|---|
| 880 | 869 | | performance of repair work shall be reasonable and |
|---|
| 881 | 870 | | adequate for the work to be performed. Adequate and |
|---|
| 882 | 871 | | fair compensation, which under this provision shall be |
|---|
| 883 | 872 | | no less than the rates customarily charged for retail |
|---|
| 884 | 873 | | consumer repairs as calculated herein, for parts and |
|---|
| 885 | 874 | | labor for warranty and recall repairs shall, at the |
|---|
| 886 | 875 | | option of the new motor ve hicle dealer, be established |
|---|
| 887 | 876 | | by the new motor vehicle dealer submitting to the |
|---|
| 888 | 877 | | manufacturer or distributor one hundre d sequential |
|---|
| 889 | 878 | | nonwarranty consumer-paid service repair orders which |
|---|
| 890 | 905 | | contain warranty-like repairs, or ninety (90) |
|---|
| 891 | 906 | | consecutive days of nonwarranty consumer-paid service |
|---|
| 892 | 907 | | repair orders which contain warranty-like repairs, |
|---|
| 893 | 908 | | whichever is less, covering repairs made no more than |
|---|
| 894 | 909 | | one hundred eighty (180) days before the submission |
|---|
| 895 | 910 | | and declaring the average percentag e labor rate and/or |
|---|
| 896 | 911 | | markup rate. A new motor vehicle dealer may not |
|---|
| 897 | 912 | | submit a request to establ ish its retail rates more |
|---|
| 925 | 913 | | than once in a twelve -month period. That request may |
|---|
| 926 | 914 | | establish a parts markup rate, labor rate, or both. |
|---|
| 927 | 915 | | The new motor vehicle dealer shall calculate its |
|---|
| 928 | 916 | | retail parts rate by determining the total charges for |
|---|
| 929 | 917 | | parts from the qualified repair orders submitted, |
|---|
| 930 | 918 | | dividing that amount by the new motor vehicle dealer ’s |
|---|
| 931 | 919 | | total cost of the purchase of those parts, subtracting |
|---|
| 932 | 920 | | one (1), and multiplying by one hundred (100) to |
|---|
| 933 | 921 | | produce a percentage. The new motor vehicle dealer |
|---|
| 934 | 922 | | shall calculate its retail labor rate by dividing the |
|---|
| 935 | 923 | | amount of the new motor vehicle dealer ’s total labor |
|---|
| 936 | 924 | | sales from the qualified repair orders by the total |
|---|
| 937 | 925 | | labor hours charged for those sales. When submitting |
|---|
| 938 | 926 | | repair orders to establish a retail parts and labor |
|---|
| 939 | 927 | | rate, a new motor vehicle dealer need not include |
|---|
| 940 | 928 | | repairs for: |
|---|
| 941 | 955 | | (1) routine maintenance including but not limited to |
|---|
| 942 | 956 | | the replacement of bulbs, fluids, filters, |
|---|
| 943 | 957 | | batteries, and belts that are not provided in the |
|---|
| 944 | 958 | | course of and related to a r epair, |
|---|
| 945 | 959 | | (2) factory special events, specials, or promotional |
|---|
| 946 | 960 | | discounts for retail consumer rep airs, |
|---|
| 947 | 961 | | (3) parts sold or repairs performed at wholesale, |
|---|
| 975 | 962 | | (4) factory-approved goodwill or policy repairs or |
|---|
| 976 | 963 | | replacements, |
|---|
| 977 | 964 | | (5) repairs with aftermarket parts, when c alculating |
|---|
| 978 | 965 | | the retail parts rate but not the re tail labor |
|---|
| 979 | 966 | | rate, |
|---|
| 980 | 967 | | (6) repairs on aftermarket pa rts, |
|---|
| 981 | 968 | | (7) replacement of or work on tires including front - |
|---|
| 982 | 969 | | end alignments and wheel or tire rotations, |
|---|
| 983 | 970 | | (8) repairs of motor vehicles owned by the new motor |
|---|
| 984 | 971 | | vehicle dealer or employee thereof at the time of |
|---|
| 985 | 972 | | the repair, |
|---|
| 986 | 973 | | (9) vehicle reconditioning, or |
|---|
| 987 | 974 | | (10) items that do not have individual part numbers |
|---|
| 988 | 975 | | including, but not limited to, nuts, bolts, and |
|---|
| 989 | 976 | | fasteners. |
|---|
| 990 | 977 | | A manufacturer or distributor may, not later than |
|---|
| 991 | 978 | | forty-five (45) days after submission, rebut that |
|---|
| 1026 | 1012 | | substantially higher than the new motor vehicle |
|---|
| 1027 | 1013 | | dealer’s current warranty rates, the manufacturer or |
|---|
| 1028 | 1014 | | distributor may request, in writing, within forty-five |
|---|
| 1029 | 1015 | | (45) days after the manufacturer’s or distributor’s |
|---|
| 1030 | 1016 | | receipt of the new motor vehicle dealer’s initial |
|---|
| 1031 | 1017 | | submission, all repair orders closed within the period |
|---|
| 1032 | 1018 | | of thirty (30) days immediately preceding, or thirty |
|---|
| 1033 | 1019 | | (30) days immediately following, the set of repa ir |
|---|
| 1034 | 1020 | | orders initially submitted by the new motor vehicle |
|---|
| 1035 | 1021 | | dealer. All time periods under this sectio n shall be |
|---|
| 1036 | 1022 | | suspended until the supplemental repair orders are |
|---|
| 1037 | 1023 | | provided. If the manufacturer or distributor requests |
|---|
| 1038 | 1024 | | supplemental repair orders, the manufactu rer or |
|---|
| 1039 | 1025 | | distributor may, within thirty (30) days after |
|---|
| 1040 | 1026 | | receiving the supplemental repair orders and in |
|---|
| 1041 | 1027 | | accordance with the formula described in this |
|---|
| 1042 | 1028 | | subsection, calculate a pr oposed adjusted retail labor |
|---|
| 1043 | 1055 | | rate or retail parts markup rate, as applicable, base d |
|---|
| 1044 | 1056 | | upon any set of the qualified repair orders submitted |
|---|
| 1045 | 1057 | | by the franchisee and following the formul a set forth |
|---|
| 1046 | 1058 | | herein to establish the rate. The retail labor and |
|---|
| 1047 | 1059 | | parts rates shall go into effect thirty (30) days |
|---|
| 1048 | 1060 | | following the approval by the manufacturer or |
|---|
| 1049 | 1061 | | distributor. If the declared rate is rebutted, the |
|---|
| 1077 | 1062 | | manufacturer or distributor shall provide written |
|---|
| 1078 | 1063 | | notice stating the reasons for the rebuttal, an |
|---|
| 1079 | 1064 | | explanation of the rea sons for the rebuttal, and a |
|---|
| 1080 | 1065 | | copy of all calculations used by the franchisor in |
|---|
| 1081 | 1066 | | determining the manufacturer or distributor ’s position |
|---|
| 1082 | 1067 | | and propose an adjustment in writing of the average |
|---|
| 1083 | 1068 | | percentage markup or labor rate based on that rebuttal |
|---|
| 1084 | 1069 | | not later than forty-five (45) days after submission. |
|---|
| 1085 | 1070 | | If the new motor vehicle dealer does not agree with |
|---|
| 1086 | 1071 | | the proposed average percentage ma rkup or labor rate, |
|---|
| 1087 | 1072 | | the new motor vehicle dealer may file a protest with |
|---|
| 1088 | 1073 | | the Commission not later than thirty (30) days after |
|---|
| 1089 | 1074 | | receipt of that proposal by the manufacturer or |
|---|
| 1090 | 1075 | | distributor. In the event a protest is filed, the |
|---|
| 1091 | 1076 | | manufacturer or distributor shall have the burden of |
|---|
| 1092 | 1077 | | proof to establish the new motor vehicle dealer ’s |
|---|
| 1093 | 1078 | | submitted parts markup rate or labor rate was |
|---|
| 1128 | 1112 | | retail rate for parts or labor not m ore often than |
|---|
| 1129 | 1113 | | once every twelve (12) months. A manufacturer or |
|---|
| 1130 | 1114 | | distributor may not otherwise recover its costs from |
|---|
| 1131 | 1115 | | new motor vehicle dealers within this state including |
|---|
| 1132 | 1116 | | a surcharge imposed on a new motor vehicle dealer |
|---|
| 1133 | 1117 | | solely intended to recover the cos t of reimbursing a |
|---|
| 1134 | 1118 | | new motor vehicle dealer for parts and labor pursuant |
|---|
| 1135 | 1119 | | to this section; provided, a ma nufacturer or |
|---|
| 1136 | 1120 | | distributor shall not be prohibited from increasing |
|---|
| 1137 | 1121 | | prices for vehicles or parts in the normal course of |
|---|
| 1138 | 1122 | | business or from auditing and cha rging back claims in |
|---|
| 1139 | 1123 | | accordance with this section. All claims made by |
|---|
| 1140 | 1124 | | dealers for compensation for delivery, preparation, |
|---|
| 1141 | 1125 | | warranty, or recall repair work shall be paid within |
|---|
| 1142 | 1126 | | thirty (30) days after approval and shall be approved |
|---|
| 1143 | 1127 | | or disapproved within thi rty (30) days after receipt. |
|---|
| 1144 | 1128 | | When any claim is disapproved, the dealer shall be |
|---|
| 1179 | 1162 | | determine the validity of paid claims for new motor |
|---|
| 1180 | 1163 | | vehicle dealer compensation or any charge -backs for |
|---|
| 1181 | 1164 | | warranty parts or service compensation. Except in |
|---|
| 1182 | 1165 | | cases of suspected fraud , audits of warranty payments |
|---|
| 1183 | 1166 | | shall only be for the one-year period immediately |
|---|
| 1184 | 1167 | | following the date of the p ayment. A manufacturer |
|---|
| 1185 | 1168 | | shall reserve the right to reasonable, periodic audits |
|---|
| 1186 | 1169 | | to determine the validity of paid claims for dealer |
|---|
| 1187 | 1170 | | compensation or any charge-backs for consumer or |
|---|
| 1188 | 1171 | | dealer incentives. Except in cases of suspected |
|---|
| 1189 | 1172 | | fraud, audits of incentive payments shall only be for |
|---|
| 1190 | 1173 | | a one-year period immediately following the date of |
|---|
| 1191 | 1174 | | the payment. A factory shall not deny a claim or |
|---|
| 1192 | 1175 | | charge a new motor v ehicle dealer back subsequent to |
|---|
| 1193 | 1176 | | the payment of the claim unless the factory can show |
|---|
| 1194 | 1177 | | that the claim was fa lse or fraudulent or that the new |
|---|
| 1195 | 1178 | | motor vehicle dealer failed t o reasonably substantiate |
|---|
| 1230 | 1212 | | compliance by any action of the new motor vehicle |
|---|
| 1231 | 1213 | | dealer; provided, that the factory may require the new |
|---|
| 1232 | 1214 | | motor vehicle dealer to provide, w ithin thirty (30) |
|---|
| 1233 | 1215 | | days of notice of charge-back, withholding of payment, |
|---|
| 1234 | 1216 | | or denial of claim, the documentation to demonstrate |
|---|
| 1235 | 1217 | | the vehicle sale, delivery, and customer qualification |
|---|
| 1236 | 1218 | | for an incentive as reported, including consumer name |
|---|
| 1237 | 1219 | | and address and written a ttestation signed by the |
|---|
| 1238 | 1220 | | dealer operator or general manager stating the |
|---|
| 1239 | 1221 | | consumer was not on the export control list and the |
|---|
| 1240 | 1222 | | dealer did not know or have reason to know the vehicle |
|---|
| 1241 | 1223 | | was being exported or resold. |
|---|
| 1242 | 1224 | | The factory shall provide written notice to a dealer |
|---|
| 1243 | 1225 | | of a proposed charge-back that is the result of an |
|---|
| 1244 | 1226 | | audit along with the spec ific audit results and |
|---|
| 1245 | 1227 | | proposed charge-back amount. A dealer that receives |
|---|
| 1246 | 1228 | | notice of a proposed charge -back pursuant to a |
|---|
| 1281 | 1262 | | by the Commission, whi chever is later, unless the |
|---|
| 1282 | 1263 | | dealer has agreed to the charge-back or charge-backs, |
|---|
| 1283 | 1264 | | c. fails to compensate th e new motor vehicle dealer for a |
|---|
| 1284 | 1265 | | used motor vehicle: |
|---|
| 1285 | 1266 | | (1) that is of the same make and model manufactured, |
|---|
| 1286 | 1267 | | imported, or distributed by the factory and is a |
|---|
| 1287 | 1268 | | line-make that the new motor v ehicle dealer is |
|---|
| 1288 | 1269 | | franchised to sell or on which the new motor |
|---|
| 1289 | 1270 | | vehicle dealer is authorized to perform recall |
|---|
| 1290 | 1271 | | repairs, |
|---|
| 1291 | 1272 | | (2) that is subject to a stop-sale or do-not-drive |
|---|
| 1292 | 1273 | | order issued by the factory or an authorized |
|---|
| 1293 | 1274 | | governmental agency, |
|---|
| 1294 | 1275 | | (3) that is held by the new motor vehicle dealer in |
|---|
| 1295 | 1276 | | the dealer’s inventory at the time the s top-sale |
|---|
| 1296 | 1277 | | or do-not-drive order is issued or that is taken |
|---|
| 1297 | 1278 | | by the new motor vehicle dealer into the dealer’s |
|---|
| 1332 | 1312 | | of a remedy or parts necessary for the new motor |
|---|
| 1333 | 1313 | | vehicle dealer to make the recall repair, and |
|---|
| 1334 | 1314 | | (5) that is not at least in the prorated amount of |
|---|
| 1335 | 1315 | | one percent (1.00%) of the value of the vehicle |
|---|
| 1336 | 1316 | | per month beginning on the date that is thirty |
|---|
| 1337 | 1317 | | (30) days after the date on which the stop-sale |
|---|
| 1338 | 1318 | | order was provided to the new motor vehicle |
|---|
| 1339 | 1319 | | dealer until the earlier o f either of the |
|---|
| 1340 | 1320 | | following: |
|---|
| 1341 | 1321 | | (a) the date the recall remedy o r parts are made |
|---|
| 1342 | 1322 | | available, or |
|---|
| 1343 | 1323 | | (b) the date the new motor vehicle dealer sells, |
|---|
| 1344 | 1324 | | trades, or otherwise disposes of the |
|---|
| 1345 | 1325 | | affected used motor vehicle. |
|---|
| 1346 | 1326 | | For the purposes of division (5) of this subparagra ph, |
|---|
| 1347 | 1327 | | the value of a used vehicle shall be the average Blac k |
|---|
| 1348 | 1328 | | Book value for the year, make, and model of the |
|---|
| 1383 | 1362 | | reimbursement claims made by new motor vehic le dealers |
|---|
| 1384 | 1363 | | pursuant to this section for recall remedies o r |
|---|
| 1385 | 1364 | | repairs, or for compensation where no part or repair |
|---|
| 1386 | 1365 | | is reasonably available and the vehic le is subject to |
|---|
| 1387 | 1366 | | a stop-sale or do-not-drive order, shall be subject to |
|---|
| 1388 | 1367 | | the same limitations and requiremen ts as a warranty |
|---|
| 1389 | 1368 | | reimbursement claim made under subparagr aph b of this |
|---|
| 1390 | 1369 | | paragraph. In the alternative, a manufacturer may |
|---|
| 1391 | 1370 | | compensate its franchised n ew motor vehicle dealers |
|---|
| 1392 | 1371 | | under a national recall compensation program; |
|---|
| 1393 | 1372 | | provided, the compensation under the program is equal |
|---|
| 1394 | 1373 | | to or greater than that provided under division (5) of |
|---|
| 1395 | 1374 | | this subparagraph, or as the manufacturer and new |
|---|
| 1396 | 1375 | | motor vehicle dealer other wise agree. Nothing in this |
|---|
| 1397 | 1376 | | section shall require a factory to provide total |
|---|
| 1398 | 1377 | | compensation to a new motor v ehicle dealer which would |
|---|
| 1399 | 1378 | | exceed the total average Black Book value of the |
|---|
| 1434 | 1412 | | mix of all models manufactured for that line-make, or |
|---|
| 1435 | 1413 | | unreasonably requires a dealer to pay any extra fee, |
|---|
| 1436 | 1414 | | purchase unreasonabl e advertising displays or other |
|---|
| 1437 | 1415 | | materials, or enter into a separate agreement which |
|---|
| 1438 | 1416 | | adversely alters the rights or obligations contained |
|---|
| 1439 | 1417 | | within the new motor vehicle dealer’s existing |
|---|
| 1440 | 1418 | | franchise agreement or which waives any right of the |
|---|
| 1441 | 1419 | | new motor vehicle dealer as protected by Section 561 |
|---|
| 1442 | 1420 | | et seq. of this title, or remodel, renovate, or |
|---|
| 1443 | 1421 | | recondition the new motor vehicle dealer’s existing |
|---|
| 1444 | 1422 | | facilities as a prerequisite to receiving a model or |
|---|
| 1445 | 1423 | | series of vehicles, except as may be necessary to sell |
|---|
| 1446 | 1424 | | or service the model or series of vehicles as provided |
|---|
| 1447 | 1425 | | by subparagraph e of this paragraph. It shall be a |
|---|
| 1448 | 1426 | | violation of this section for new vehicle allocation |
|---|
| 1449 | 1427 | | to be withheld subject to any requirement to purchase |
|---|
| 1450 | 1428 | | or sell any number of used or off-lease vehicles. The |
|---|
| 1451 | 1455 | | failure to deliver any such new motor vehicle shall |
|---|
| 1452 | 1456 | | not be considered a violation of the secti on if the |
|---|
| 1453 | 1457 | | failure is not arbitrary or is due to lack of |
|---|
| 1454 | 1458 | | manufacturing capacity or to a strike or labor |
|---|
| 1455 | 1459 | | difficulty, a shortage of materials, a freight |
|---|
| 1456 | 1460 | | embargo, or other cause over which the manufacturer |
|---|
| 1457 | 1461 | | has no control. However, this subparagraph shall not |
|---|
| 1485 | 1462 | | apply to recreational vehicles, limited production |
|---|
| 1486 | 1463 | | model vehicles, a vehicle not advertised by the |
|---|
| 1487 | 1464 | | factory for sale in this state, vehicles that are |
|---|
| 1488 | 1465 | | subject to allocation affected by federal |
|---|
| 1489 | 1466 | | environmental laws or environmental laws of this |
|---|
| 1490 | 1467 | | state, or vehicles allocated in response t o an |
|---|
| 1491 | 1468 | | unforeseen event or circumstance, |
|---|
| 1492 | 1469 | | e. except as necessary to comply wit h a health or safety |
|---|
| 1493 | 1470 | | law, or to comply with a technology re quirement which |
|---|
| 1494 | 1471 | | is necessary to sell or service a motor vehicle that |
|---|
| 1495 | 1472 | | the franchised new motor vehicle dealer is authorized |
|---|
| 1496 | 1473 | | or licensed by the franchisor to sell or service, |
|---|
| 1497 | 1474 | | requires a new motor veh icle dealer to construct a new |
|---|
| 1498 | 1475 | | facility or substantially renovate the new motor |
|---|
| 1499 | 1476 | | vehicle dealer’s existing facility unless the facility |
|---|
| 1500 | 1477 | | construction or reno vation is justified by the |
|---|
| 1501 | 1478 | | economic conditions existing at the time, as well as |
|---|
| 1502 | 1505 | | the reasonably forese eable projections, in the new |
|---|
| 1503 | 1506 | | motor vehicle dealer ’s market and in the automotive |
|---|
| 1504 | 1507 | | industry. However, this subparagraph shall not apply |
|---|
| 1505 | 1508 | | if the new motor vehicle dealer voluntarily agrees to |
|---|
| 1506 | 1509 | | facility construction or renovation in exchange f or |
|---|
| 1507 | 1510 | | money, credit, allowance, reimbursement, or additional |
|---|
| 1508 | 1511 | | vehicle allocation to a new motor vehicle dealer from |
|---|
| 1536 | 1512 | | the factory to compensate the new motor vehicle dealer |
|---|
| 1537 | 1513 | | for the cost of, or a portion of the cost of, the |
|---|
| 1538 | 1514 | | facility constructio n or renovation. Except as |
|---|
| 1539 | 1515 | | necessary to comply with a health or safety law, or to |
|---|
| 1540 | 1516 | | comply with a technology or safety requirement which |
|---|
| 1541 | 1517 | | is necessary to sell or service a motor vehicle that |
|---|
| 1542 | 1518 | | the franchised new motor vehicle dealer is authorized |
|---|
| 1543 | 1519 | | or licensed by the franchisor to sell or service, a |
|---|
| 1544 | 1520 | | new motor vehicle dealer which comple tes a facility |
|---|
| 1545 | 1521 | | construction or renovation pursuant to factory |
|---|
| 1546 | 1522 | | requirements shall not be requir ed to construct a new |
|---|
| 1547 | 1523 | | facility or renovate the existing facility if the same |
|---|
| 1548 | 1524 | | area of the facility or premises has been constructed |
|---|
| 1549 | 1525 | | or substantially altered within the last t en (10) |
|---|
| 1550 | 1526 | | years and the construction or alteration was approved |
|---|
| 1551 | 1527 | | by the manufacturer as a p art of a facility upgrade |
|---|
| 1552 | 1528 | | program, standard, or policy. For purposes of this |
|---|
| 1553 | 1555 | | subparagraph, “substantially altered” means to perform |
|---|
| 1554 | 1556 | | an alteration that subst antially impacts the |
|---|
| 1555 | 1557 | | architectural features, characteristics, or integrity |
|---|
| 1556 | 1558 | | of a structure or lot. The term shall not include |
|---|
| 1557 | 1559 | | routine maintenance reasonably necessary to maintain a |
|---|
| 1558 | 1560 | | dealership in attractive condition. If a facility |
|---|
| 1559 | 1561 | | upgrade program, standard, or policy under which the |
|---|
| 1587 | 1562 | | dealer completed a facility construction or |
|---|
| 1588 | 1563 | | substantial alteration doe s not contain a specific |
|---|
| 1589 | 1564 | | time period during which the manufacturer or |
|---|
| 1590 | 1565 | | distributor shall provide paym ents or benefits to a |
|---|
| 1591 | 1566 | | participating dealer, or the time f rame specified |
|---|
| 1592 | 1567 | | under the program is reduced or canceled prematurely |
|---|
| 1593 | 1568 | | in the unilateral discreti on of the manufacturer or |
|---|
| 1594 | 1569 | | distributor, the manufacturer or distributor shall not |
|---|
| 1595 | 1570 | | deny the participating dealer any payment or benefit |
|---|
| 1596 | 1571 | | under the terms of the program, standard, or p olicy as |
|---|
| 1597 | 1572 | | it existed when the dealer began to perform under the |
|---|
| 1598 | 1573 | | program, standard, or policy for the balance of the |
|---|
| 1599 | 1574 | | ten-year period, regardless of whether the |
|---|
| 1600 | 1575 | | manufacturer’s or distributor’s program, standard, or |
|---|
| 1601 | 1576 | | policy has been changed or canceled, unless the |
|---|
| 1602 | 1577 | | manufacturer and dealer agree, in writing, to the |
|---|
| 1603 | 1578 | | change in payment or b enefit. During the ten-year |
|---|
| 1604 | 1605 | | period following facility construction or substantial |
|---|
| 1605 | 1606 | | alteration, the manufacturer shall not withhold from |
|---|
| 1606 | 1607 | | the dealer its proportionate share of vehicles |
|---|
| 1607 | 1608 | | distributed to dealers of the same line-make, subject |
|---|
| 1608 | 1609 | | to the same reasonable terms, including vehicles |
|---|
| 1609 | 1610 | | distributed from a common new vehicle inventory pool |
|---|
| 1610 | 1611 | | outside of the factory’s ordinary allocation process , |
|---|
| 1638 | 1612 | | such as any vehicles the factory reserves to |
|---|
| 1639 | 1613 | | distribute on a discretionary basis, |
|---|
| 1640 | 1614 | | f. requires a new motor vehicle dealer to establish an |
|---|
| 1641 | 1615 | | exclusive facility or to change the loc ation of the |
|---|
| 1642 | 1616 | | dealership, unless supported by reasonable business, |
|---|
| 1643 | 1617 | | market, and economic considerations; provided, that |
|---|
| 1644 | 1618 | | this section shall not restrict the terms of any |
|---|
| 1645 | 1619 | | agreement for such exc lusive facility volun tarily |
|---|
| 1646 | 1620 | | entered into and supported by valuable consideration |
|---|
| 1647 | 1621 | | separate from the ne w motor vehicle dealer’s right to |
|---|
| 1648 | 1622 | | sell and service motor vehicles for t he franchisor. |
|---|
| 1649 | 1623 | | If a dealer is required by the manufacturer or |
|---|
| 1650 | 1624 | | distributor to change a previously approved location |
|---|
| 1651 | 1625 | | of the dealership and has not sold its existing |
|---|
| 1652 | 1626 | | dealership facility and real estate within the later |
|---|
| 1653 | 1627 | | of one hundred eighty (180) days of listing the |
|---|
| 1654 | 1628 | | property for sale or ninety (90) days after the |
|---|
| 1655 | 1655 | | facility relocation, then, upon the written request of |
|---|
| 1656 | 1656 | | the dealer, the manufacturer or distributor shall |
|---|
| 1657 | 1657 | | purchase the existing dealership facility of the |
|---|
| 1658 | 1658 | | dealer and real estate. The facility and rea l estate |
|---|
| 1659 | 1659 | | shall be valued as if a new motor vehicle dealers hip |
|---|
| 1660 | 1660 | | continues to operate on the property. If the factory |
|---|
| 1661 | 1661 | | and dealer cannot agree on the value of the terminated |
|---|
| 1689 | 1662 | | franchise, then the factory and dealer shall utilize |
|---|
| 1690 | 1663 | | the process described in paragraph 6 of subsecti on G |
|---|
| 1691 | 1664 | | of Section 565.2 of this title. If a manufacturer or |
|---|
| 1692 | 1665 | | distributor purchases a dealership facility and real |
|---|
| 1693 | 1666 | | estate, then it shall be entitled to sole own ership, |
|---|
| 1694 | 1667 | | possession, use, and contr ol of any items, buildings, |
|---|
| 1695 | 1668 | | or property that were included in the contract to |
|---|
| 1696 | 1669 | | purchase, |
|---|
| 1697 | 1670 | | g. requires a new motor vehicle dealer to enter into a |
|---|
| 1698 | 1671 | | site-control agreement covering any or all of the new |
|---|
| 1699 | 1672 | | motor vehicle dealer’s facilities or premises; |
|---|
| 1700 | 1673 | | provided, that this section shall not restrict the |
|---|
| 1701 | 1674 | | terms of any site-control agreement voluntarily |
|---|
| 1702 | 1675 | | entered into and supported by valuable consideration |
|---|
| 1703 | 1676 | | separate from the new motor vehicle dealer’s right to |
|---|
| 1704 | 1677 | | sell and service motor vehicles for the franchisor. |
|---|
| 1705 | 1678 | | Notwithstanding the foregoing or the terms of any |
|---|
| 1739 | 1711 | | h. refuses to pay, or claims reimbursement from, a new |
|---|
| 1740 | 1712 | | motor vehicle dealer fo r sales, incentives, or other |
|---|
| 1741 | 1713 | | payments related to a motor vehicle sold by the new |
|---|
| 1742 | 1714 | | motor vehicle dealer because the purchaser of the |
|---|
| 1743 | 1715 | | motor vehicle exported or resold the motor vehicle in |
|---|
| 1744 | 1716 | | violation of the policy of the factory unless the |
|---|
| 1745 | 1717 | | factory can show tha t, at the time of the sale, the |
|---|
| 1746 | 1718 | | new motor vehicle dealer knew or reasonably should |
|---|
| 1747 | 1719 | | have known of the pu rchaser’s intention to export or |
|---|
| 1748 | 1720 | | resell the motor vehicle. There is a rebu ttable |
|---|
| 1749 | 1721 | | presumption that the new motor vehicle dealer did not |
|---|
| 1750 | 1722 | | know or could not have known that the vehicle would be |
|---|
| 1751 | 1723 | | exported if the vehicle is titled and registered in |
|---|
| 1752 | 1724 | | any state of the United States, or |
|---|
| 1753 | 1725 | | i. requires a new motor vehicle dealer to pu rchase goods |
|---|
| 1754 | 1726 | | or services for the construction, renovation, or |
|---|
| 1755 | 1727 | | improvement of the new motor vehicle dealer’s facility |
|---|
| 1756 | 1728 | | from a vendor chosen by the factory if goods or |
|---|
| 1790 | 1761 | | approval may not be unreasonably withh eld. Nothing in |
|---|
| 1791 | 1762 | | this subparagraph may be construed to allow a new |
|---|
| 1792 | 1763 | | motor vehicle dealer to impair or elimin ate a |
|---|
| 1793 | 1764 | | factory’s intellectual property, trademark rights, or |
|---|
| 1794 | 1765 | | trade dress usage guide lines. Nothing in this section |
|---|
| 1795 | 1766 | | prohibits the enforcement of a voluntary agreement |
|---|
| 1796 | 1767 | | between the factory and the new motor vehicle dealer |
|---|
| 1797 | 1768 | | where separate and valuable considera tion has been |
|---|
| 1798 | 1769 | | offered and accepted; |
|---|
| 1799 | 1770 | | 10. Being a factory that: |
|---|
| 1800 | 1771 | | a. establishes a system of motor vehicle allocation or |
|---|
| 1801 | 1772 | | distribution which is unfair, i nequitable, or |
|---|
| 1802 | 1773 | | unreasonably discriminatory. A manufacturer and |
|---|
| 1803 | 1774 | | distributor shall maintain for three (3) year s records |
|---|
| 1804 | 1775 | | that describe its metho ds or formula of allocation and |
|---|
| 1805 | 1776 | | distribution of its motor v ehicles and records of its |
|---|
| 1806 | 1777 | | actual allocation and distribution of motor v ehicles |
|---|
| 1807 | 1778 | | to its motor vehicle dealers. Upon the written |
|---|
| 1841 | 1811 | | or distributor of a sales performance deficiency |
|---|
| 1842 | 1812 | | requiring the dealer to take action to cure the |
|---|
| 1843 | 1813 | | alleged performance deficiency , a factory manufacturer |
|---|
| 1844 | 1814 | | or distributor shall disclose in writing to the new |
|---|
| 1845 | 1815 | | motor vehicle dealer the basis upon which new motor |
|---|
| 1846 | 1816 | | vehicles are allocated, scheduled, and delivered, by |
|---|
| 1847 | 1817 | | vehicle model, to among the new motor vehicle dealers |
|---|
| 1848 | 1818 | | of the same line-make for that factory manufacturer or |
|---|
| 1849 | 1819 | | distributor for the prior three (3) years, and the |
|---|
| 1850 | 1820 | | basis upon which the current allocatio n or |
|---|
| 1851 | 1821 | | distribution is being made or will be made to such |
|---|
| 1852 | 1822 | | dealer, or |
|---|
| 1853 | 1823 | | b. changes an established plan or system of motor vehicle |
|---|
| 1854 | 1824 | | distribution. A new motor vehicle dealer franchi se |
|---|
| 1855 | 1825 | | agreement shall continue in full force and operation |
|---|
| 1856 | 1826 | | notwithstanding a change, in whole or in part, of an |
|---|
| 1857 | 1827 | | established plan or system of distribution of the |
|---|
| 1858 | 1828 | | motor vehicles offered or previously offered for sale |
|---|
| 1892 | 1861 | | plan or system of motor vehicle distribution. The |
|---|
| 1893 | 1862 | | creation of a line-make shall not be deemed to be a |
|---|
| 1894 | 1863 | | change of an established plan or system of motor |
|---|
| 1895 | 1864 | | vehicle distribution as long as the new line-make is |
|---|
| 1896 | 1865 | | not selling the same, or substant ially the same |
|---|
| 1897 | 1866 | | vehicle or vehicles previously sold through another |
|---|
| 1898 | 1867 | | line-make by new motor vehicle dealers with an active |
|---|
| 1899 | 1868 | | franchise agreement for the other line-make in the |
|---|
| 1900 | 1869 | | state if such new motor vehicle dealers are no longer |
|---|
| 1901 | 1870 | | authorized to sell the compara ble vehicle previously |
|---|
| 1902 | 1871 | | sold through their line -make. Changing a vehicle ’s |
|---|
| 1903 | 1872 | | powertrain is not sufficient to show it is |
|---|
| 1904 | 1873 | | substantially different. Upon the occurrence of suc h |
|---|
| 1905 | 1874 | | change, the manufacturer or distributor shall be |
|---|
| 1906 | 1875 | | prohibited from obtaining a license to distribute |
|---|
| 1907 | 1876 | | vehicles under the new plan or system of distribution |
|---|
| 1908 | 1877 | | unless the manufacturer or distributor offers to each |
|---|
| 1909 | 1878 | | new motor vehicle dealer w ho is a party to the |
|---|
| 1943 | 1911 | | includes the new motor vehicle. This paragraph does not apply to |
|---|
| 1944 | 1912 | | factory sales of new moto r vehicles to its employees, family members |
|---|
| 1945 | 1913 | | of employees, retirees and famil y members of retirees, not-for- |
|---|
| 1946 | 1914 | | profit organizations, or the federal, state, or local governments. |
|---|
| 1947 | 1915 | | The provisions of this paragraph shall not preclude a factory from |
|---|
| 1948 | 1916 | | providing information to a consumer for the purpose of marketing or |
|---|
| 1949 | 1917 | | facilitating a sale of a new motor vehicle or from establishing a |
|---|
| 1950 | 1918 | | program to sell or offer to sell new motor vehicles through |
|---|
| 1951 | 1919 | | participating dealers subject to the limitations provided in |
|---|
| 1952 | 1920 | | paragraph 2 of Section 562 of this title; |
|---|
| 1953 | 1921 | | 12. a. Being a factory whic h directly or indirec tly: |
|---|
| 1954 | 1922 | | (1) owns any ownership interest or has any financial |
|---|
| 1955 | 1923 | | interest in a new motor vehicl e dealer or any |
|---|
| 1956 | 1924 | | person who sells products or services pursuant to |
|---|
| 1957 | 1925 | | the terms of the franchise agreement, |
|---|
| 1958 | 1926 | | (2) operates or controls a new motor vehicle dealer, |
|---|
| 1959 | 1927 | | or |
|---|
| 1994 | 1961 | | initial investment is subject to potential loss. |
|---|
| 1995 | 1962 | | The dealer development candidate can reasonably |
|---|
| 1996 | 1963 | | expect to acquire full o wnership of a new motor |
|---|
| 1997 | 1964 | | vehicle dealer within a reasonable period of time |
|---|
| 1998 | 1965 | | not to exceed ten (10) years and o n reasonable |
|---|
| 1999 | 1966 | | terms and conditions. The ten-year acquisition |
|---|
| 2000 | 1967 | | period may be expanded for good cause shown. |
|---|
| 2001 | 1968 | | (2) This paragraph does not prohibit a factory from |
|---|
| 2002 | 1969 | | owning, operating, controlling, or acting in the |
|---|
| 2003 | 1970 | | capacity of a new motor vehicle dealer for a |
|---|
| 2004 | 1971 | | period not to exceed twelve (12) months during |
|---|
| 2005 | 1972 | | the transition from one independent dealer to |
|---|
| 2006 | 1973 | | another independent dealer if the dealership is |
|---|
| 2007 | 1974 | | for sale at a reasonable price and on reasonable |
|---|
| 2008 | 1975 | | terms and conditions to an independent qualified |
|---|
| 2009 | 1976 | | buyer. On showing by a factory of good cause, |
|---|
| 2010 | 1977 | | the Oklahoma New Motor Vehicle Commission may |
|---|
| 2045 | 2011 | | (4) This paragraph does not pr ohibit a factory from |
|---|
| 2046 | 2012 | | owning, directly or indirectly, a minority |
|---|
| 2047 | 2013 | | interest in an entity that owns, operates , or |
|---|
| 2048 | 2014 | | controls motor vehicle dealerships of the same |
|---|
| 2049 | 2015 | | line-make franchised by the manufacturer, |
|---|
| 2050 | 2016 | | provided that each of the following conditions |
|---|
| 2051 | 2017 | | are met: |
|---|
| 2052 | 2018 | | (a) all of the new motor vehicle dealerships |
|---|
| 2053 | 2019 | | selling the motor vehicles of that |
|---|
| 2054 | 2020 | | manufacturer in this state t rade exclusively |
|---|
| 2055 | 2021 | | in the line-make of that manufacturer, |
|---|
| 2056 | 2022 | | (b) all of the franchise agreements of the |
|---|
| 2057 | 2023 | | manufacturer confer rights on the dealer of |
|---|
| 2058 | 2024 | | the line-make to develop and operate, within |
|---|
| 2059 | 2025 | | a defined geographic territory or area, as |
|---|
| 2060 | 2026 | | many dealership facilitie s as the dealer and |
|---|
| 2061 | 2027 | | manufacturer shall agree are appropriate, |
|---|
| 2096 | 2061 | | (d) during any period in which the manufacturer |
|---|
| 2097 | 2062 | | has such an ownership interest, the |
|---|
| 2098 | 2063 | | manufacturer has no more than three |
|---|
| 2099 | 2064 | | franchise agreements with new motor vehicle |
|---|
| 2100 | 2065 | | dealers licensed by the Oklahoma New Motor |
|---|
| 2101 | 2066 | | Vehicle Commission to do business w ithin the |
|---|
| 2102 | 2067 | | state, and |
|---|
| 2103 | 2068 | | (e) prior to January 1, 2000, the factory shall |
|---|
| 2104 | 2069 | | have furnished or made available to |
|---|
| 2105 | 2070 | | prospective new motor vehicle dealers an |
|---|
| 2106 | 2071 | | offering circular in accordance with the |
|---|
| 2107 | 2072 | | Trade Regulation Rule on Franchising of the |
|---|
| 2108 | 2073 | | Federal Trade Commission, and any guidelines |
|---|
| 2109 | 2074 | | and exemptions issued thereunder, which |
|---|
| 2110 | 2075 | | disclose the possibility that the factory |
|---|
| 2111 | 2076 | | may from time to time seek to own or |
|---|
| 2112 | 2103 | | acquire, directly or indirectly , ownership |
|---|
| 2113 | 2104 | | interests in retail dealerships; |
|---|
| 2114 | 2105 | | 13. Being a factory which directly or indirectly makes |
|---|
| 2115 | 2106 | | available for public disclosure any proprietary information provided |
|---|
| 2116 | 2107 | | to the factory by a new motor vehicle dealer, other t han in |
|---|
| 2117 | 2108 | | composite form to new motor vehicle dealers in the same line-make or |
|---|
| 2118 | 2109 | | in response to a subpoena or order of the Commission or a court. |
|---|
| 2146 | 2110 | | Proprietary information includes, but is not limited to, |
|---|
| 2147 | 2111 | | information: |
|---|
| 2148 | 2112 | | a. derived from monthly financial statements provided to |
|---|
| 2149 | 2113 | | the factory, and |
|---|
| 2150 | 2114 | | b. regarding any aspect of the profitability of a |
|---|
| 2151 | 2115 | | particular new motor vehicle dealer; |
|---|
| 2152 | 2116 | | 14. Being a factory which doe s not provide or direct leads in a |
|---|
| 2153 | 2117 | | fair, equitable, and timely manner. Nothing in this paragraph shall |
|---|
| 2154 | 2118 | | be construed to require a factory to d isregard the preference of a |
|---|
| 2155 | 2119 | | consumer in providing or directing a lead; |
|---|
| 2156 | 2120 | | 15. Being a factory which used the consumer list of a new motor |
|---|
| 2157 | 2121 | | vehicle dealer for the purpose of unfairly competing with dealers; |
|---|
| 2158 | 2122 | | 16. Being a factory which prohibits a new motor vehicle dealer |
|---|
| 2159 | 2123 | | from relocating after a written request by such new motor vehicle |
|---|
| 2160 | 2124 | | dealer if: |
|---|
| 2161 | 2125 | | a. the facility and the p roposed new location satisfies |
|---|
| 2162 | 2126 | | or meets the written reasonable guidelines of the |
|---|
| 2197 | 2160 | | c. the factory has sixty (60) days from receipt of the |
|---|
| 2198 | 2161 | | new motor vehicle dealer’s relocation request to |
|---|
| 2199 | 2162 | | approve or deny the request. The failure to approve |
|---|
| 2200 | 2163 | | or deny the request within the sixty-day time frame |
|---|
| 2201 | 2164 | | shall constitute approval of the request; |
|---|
| 2202 | 2165 | | 17. Being a factory which prohibits a new motor vehicle dealer |
|---|
| 2203 | 2166 | | from adding additional line-makes to its existing facility, if, |
|---|
| 2204 | 2167 | | after adding the additional line -makes, the facility satisfies the |
|---|
| 2205 | 2168 | | written reasonable capitalization standards and facility guidelines |
|---|
| 2206 | 2169 | | of each factory. Reasonable facility guidelines do not include a |
|---|
| 2207 | 2170 | | requirement to maintain exclusivity or site control unless agreed to |
|---|
| 2208 | 2171 | | by the dealer as set forth in subparagraphs f and g of paragraph 9 |
|---|
| 2209 | 2172 | | of this subsection; |
|---|
| 2210 | 2173 | | 18. Being a factory tha t increases prices of new motor vehicles |
|---|
| 2211 | 2174 | | which the new motor vehicle dealer had ordered for retail consumers |
|---|
| 2212 | 2175 | | and notified the factory prior to the new motor vehicle dealer’s |
|---|
| 2213 | 2176 | | receipt of the written official price increase notification. A |
|---|
| 2247 | 2209 | | paragraph. Price changes ca used by any of the following shall not |
|---|
| 2248 | 2210 | | be subject to the provisions of this paragraph: |
|---|
| 2249 | 2211 | | a. the addition to a motor vehicle of required or |
|---|
| 2250 | 2212 | | optional equipment pursua nt to state or federal law, |
|---|
| 2251 | 2213 | | b. revaluation of the United States dollar in the case of |
|---|
| 2252 | 2214 | | foreign-made vehicles or components, or |
|---|
| 2253 | 2215 | | c. an increase in transportation charges due to increased |
|---|
| 2254 | 2216 | | rates imposed by common or contract carriers; |
|---|
| 2255 | 2217 | | 19. Being a factory that requires a new motor vehicle dealer to |
|---|
| 2256 | 2218 | | participate monetarily in an advertising campaign or co ntest, or |
|---|
| 2257 | 2219 | | purchase any promotional materials, sh owroom, or other display |
|---|
| 2258 | 2220 | | decoration or materials at the expense of the new motor vehicle |
|---|
| 2259 | 2221 | | dealer without consent of the new motor vehicle dealer, which |
|---|
| 2260 | 2222 | | consent shall not be unreasonably wi thheld; |
|---|
| 2261 | 2223 | | 20. Being a factory that denies any new motor vehicle deale r |
|---|
| 2262 | 2224 | | the right of free association with any other n ew motor vehicle |
|---|
| 2263 | 2225 | | dealer for any lawful purpose, unless otherwise pe rmitted by this |
|---|
| 2264 | 2226 | | chapter; or |
|---|
| 2297 | 2258 | | a. by an act or statement from the factory that will in |
|---|
| 2298 | 2259 | | any manner adversely impact the new motor vehicle |
|---|
| 2299 | 2260 | | dealer, or |
|---|
| 2300 | 2261 | | b. by measuring the new motor vehicle dealer’s |
|---|
| 2301 | 2262 | | performance under the franchise based on the sale of |
|---|
| 2302 | 2263 | | extended service contracts, extended maintenance |
|---|
| 2303 | 2264 | | plans, or similar products offered, e ndorsed, or |
|---|
| 2304 | 2265 | | sponsored by the manufacturer or distributor. |
|---|
| 2305 | 2266 | | B. Notwithstanding the terms of any franchise agreement, in the |
|---|
| 2306 | 2267 | | event of a proposed sale or transfer of a dealership, the |
|---|
| 2307 | 2268 | | manufacturer or distributor shall be permitted to exer cise a right |
|---|
| 2308 | 2269 | | of first refusal to acquire the assets or ownership interest of the |
|---|
| 2309 | 2270 | | dealer of the new motor vehicle dealership, if such sale or transfer |
|---|
| 2310 | 2271 | | is conditioned upon the manufactu rer or dealer entering into a |
|---|
| 2311 | 2272 | | dealer agreement with the proposed new owner or transferee, only if |
|---|
| 2312 | 2273 | | all the following requirements are met: |
|---|
| 2313 | 2274 | | 1. To exercise its right of first refusal, the factory must |
|---|
| 2314 | 2275 | | notify the new motor vehicle dealer in writing within six ty (60) |
|---|
| 2347 | 2307 | | to receive in connection with the proposed change of ownership or |
|---|
| 2348 | 2308 | | transfer; |
|---|
| 2349 | 2309 | | 3. The proposed sale or transfer of the dealership does not |
|---|
| 2350 | 2310 | | involve the transfer or sale to a member or members of the family of |
|---|
| 2351 | 2311 | | one or more dealer o wners, or to a qualified manager or a |
|---|
| 2352 | 2312 | | partnership or corporation controlled by such pe rsons; and |
|---|
| 2353 | 2313 | | 4. The factory agrees to pay the reasonable expenses, including |
|---|
| 2354 | 2314 | | attorney fees which do not exceed the usual, customary, and |
|---|
| 2355 | 2315 | | reasonable fees charged for simila r work done for other clients |
|---|
| 2356 | 2316 | | incurred by the proposed new owner and transferee prior to the |
|---|
| 2357 | 2317 | | exercise by the factory of its right of first refusal in negotiating |
|---|
| 2358 | 2318 | | and implementing the contract for the proposed sale or transfer of |
|---|
| 2359 | 2319 | | the dealership or dealershi p assets. Notwithstanding the foregoing, |
|---|
| 2360 | 2320 | | no payment of expenses and attorney fees sha ll be required if the |
|---|
| 2361 | 2321 | | proposed new dealer or t ransferee has not submitted or caused to b e |
|---|
| 2362 | 2322 | | submitted an accounting of those expenses within thirty (30) days of |
|---|
| 2363 | 2323 | | receipt of the written request of the factory for such an |
|---|
| 2364 | 2324 | | accounting. The accounting may be requested b y a factory before |
|---|
| 2365 | 2325 | | exercising its right of first refusal. |
|---|
| 2398 | 2357 | | primarily engaged in the business of short-term, not to exceed |
|---|
| 2399 | 2358 | | twelve (12) months, rental of motor vehicles and industrial and |
|---|
| 2400 | 2359 | | construction equipment and activities incidental to that business, |
|---|
| 2401 | 2360 | | provided that: |
|---|
| 2402 | 2361 | | a. any motor vehicle sold by that person is limited to |
|---|
| 2403 | 2362 | | used motor vehicles that have been previously used |
|---|
| 2404 | 2363 | | exclusively and regular ly by that person in the |
|---|
| 2405 | 2364 | | conduct of business and used motor vehicles traded in |
|---|
| 2406 | 2365 | | on motor vehicles sold by that person, |
|---|
| 2407 | 2366 | | b. warranty repairs performed by that person on motor |
|---|
| 2408 | 2367 | | vehicles are limited to those motor vehicles that the |
|---|
| 2409 | 2368 | | person owns, previously own ed, or takes in trade, and |
|---|
| 2410 | 2369 | | c. motor vehicle financing provided by that person to |
|---|
| 2411 | 2370 | | retail consumers for motor vehicles is limited to used |
|---|
| 2412 | 2371 | | vehicles sold by that person in the c onduct of |
|---|
| 2413 | 2372 | | business; or |
|---|
| 2414 | 2373 | | 2. The direct or indirect ownership, affiliation , or control of |
|---|
| 2415 | 2374 | | a person described in paragraph 1 of this subsection. |
|---|
| 2416 | 2375 | | D. As used in this section: |
|---|
| 2448 | 2406 | | 2. “Poses a reasonable threat” means the nature of criminal |
|---|
| 2449 | 2407 | | conduct for which the person was convicted involved an act or threat |
|---|
| 2450 | 2408 | | of harm against another and has a bearing on th e fitness or ability |
|---|
| 2451 | 2409 | | to serve the public or work with others in the occupation. |
|---|
| 2452 | 2410 | | E. Nothing in this section shall prohibit a manufacturer or |
|---|
| 2453 | 2411 | | distributor from requiring a dealer to be in compliance with the |
|---|
| 2454 | 2412 | | franchise agreement and authorized to sell a make and model based on |
|---|
| 2455 | 2413 | | applicable reasonable standards and requirements that include but |
|---|
| 2456 | 2414 | | are not limited to any facility, technology, or training |
|---|
| 2457 | 2415 | | requirements necessary to sell or service a vehicle, in order to be |
|---|
| 2458 | 2416 | | eligible for delivery or allotment of a make o r model of a new motor |
|---|
| 2459 | 2417 | | vehicle or an incentive. |
|---|
| 2460 | 2418 | | SECTION 3. AMENDATORY 47 O.S. 2021, Section 565.2, as |
|---|
| 2461 | 2419 | | amended by Section 10, Chapter 29, O.S.L. 2023 (4 7 O.S. Supp. 2023, |
|---|
| 2462 | 2420 | | Section 565.2), is amended to read as follows: |
|---|
| 2463 | 2421 | | Section 565.2. A. Irrespective of the terms, provisions, or |
|---|
| 2464 | 2422 | | conditions of any franchise, or the terms or provisions of any |
|---|
| 2465 | 2423 | | waiver, no manufacturer shall terminate, cancel , or fail to renew |
|---|
| 2466 | 2424 | | any franchise with a licensed new motor vehicle dealer unless the |
|---|
| 2467 | 2425 | | manufacturer has satisfied the notice requirements as provided in |
|---|
| 2499 | 2456 | | the equities of the dea ler or without good faith as defined herein. |
|---|
| 2500 | 2457 | | As used herein, “good faith” means the duty of each party to any |
|---|
| 2501 | 2458 | | franchise agreement to act in a fair and equita ble manner toward |
|---|
| 2502 | 2459 | | each other, with freedom from coercion or intimidation or threats |
|---|
| 2503 | 2460 | | thereof from each other. |
|---|
| 2504 | 2461 | | B. Irrespective of the terms, provisions , or conditions of any |
|---|
| 2505 | 2462 | | franchise, or the terms or provisions of any waiver, good cause |
|---|
| 2506 | 2463 | | shall exist for the purpose of a termination, cancellation, or |
|---|
| 2507 | 2464 | | nonrenewal when: |
|---|
| 2508 | 2465 | | 1. The new motor vehicle dealer has failed to comply with a |
|---|
| 2509 | 2466 | | provision of the franchise, which provision is both reasonable and |
|---|
| 2510 | 2467 | | of material significance to the franchise relationship, or the ne w |
|---|
| 2511 | 2468 | | motor vehicle dealer has failed to comply with reasonable |
|---|
| 2512 | 2469 | | performance criteria for sales or se rvice established by the |
|---|
| 2513 | 2470 | | manufacturer, and the new motor vehicle dealer has been notified by |
|---|
| 2514 | 2471 | | written notice from the manufacturer; and |
|---|
| 2515 | 2472 | | 2. The new motor vehicl e dealer has received written |
|---|
| 2516 | 2473 | | notification of failure to comply with the manufacturer ’s reasonable |
|---|
| 2517 | 2474 | | sales performance standards, capitalization requirements, facility |
|---|
| 2518 | 2475 | | commitments, business-related equipment acquisitions, or other such |
|---|
| 2549 | 2505 | | less than six (6) months to comply with such a provision or |
|---|
| 2550 | 2506 | | criteria. |
|---|
| 2551 | 2507 | | C. Irrespective of the terms, provisions, or conditions of any |
|---|
| 2552 | 2508 | | franchise agreement prior to the termin ation, cancellation, or |
|---|
| 2553 | 2509 | | nonrenewal of any franchise, the manufacture r shall furnish |
|---|
| 2554 | 2510 | | notification of such termination, cancel lation, or nonrenewal to the |
|---|
| 2555 | 2511 | | new motor vehicle dealer and the Oklahoma New Motor Vehicle |
|---|
| 2556 | 2512 | | Commission as follows: |
|---|
| 2557 | 2513 | | 1. Not less than ni nety (90) days prior to the effective date |
|---|
| 2558 | 2514 | | of the termination, cancellation, or nonrenewal unless for a cause |
|---|
| 2559 | 2515 | | described in paragraph 2 of this subse ction; |
|---|
| 2560 | 2516 | | 2. Not less than fifteen (15) days prior to the effec tive date |
|---|
| 2561 | 2517 | | of the termination, cancell ation, or nonrenewal with respect to any |
|---|
| 2562 | 2518 | | of the following: |
|---|
| 2563 | 2519 | | a. insolvency of the new motor vehicle dealer, or the |
|---|
| 2564 | 2520 | | filing of any petitio n by or against the new motor |
|---|
| 2565 | 2521 | | vehicle dealer under any bankruptcy or receivership |
|---|
| 2566 | 2522 | | law, |
|---|
| 2567 | 2523 | | b. failure of the new motor vehicle dealer to conduct its |
|---|
| 2568 | 2524 | | customary sales and service operations during its |
|---|
| 2569 | 2525 | | customary business hours for seven (7) consecutive |
|---|
| 2599 | 2554 | | circumstances beyond the direct control of the new |
|---|
| 2600 | 2555 | | motor vehicle dealer, or |
|---|
| 2601 | 2556 | | c. conviction of the new motor vehicle dealer of any |
|---|
| 2602 | 2557 | | felony which is punishable by imprison ment or a |
|---|
| 2603 | 2558 | | violation of the Federal Odometer Act federal odometer |
|---|
| 2604 | 2559 | | law, 49 U.S.C., Section 32701 et seq. ; and |
|---|
| 2605 | 2560 | | 3. Not less than one hundred ei ghty (180) days prior to the |
|---|
| 2606 | 2561 | | effective date of the termination or cancellation where the |
|---|
| 2607 | 2562 | | manufacturer or distributor is discontinuing the sale of the product |
|---|
| 2608 | 2563 | | line. |
|---|
| 2609 | 2564 | | The notification required by this subsection shall be by |
|---|
| 2610 | 2565 | | certified mail, return receipt requ ested, and shall contain a |
|---|
| 2611 | 2566 | | statement of intent to terminate, to cancel, or to not renew the |
|---|
| 2612 | 2567 | | franchise, a statement of the reasons for the termination, |
|---|
| 2613 | 2568 | | cancellation, or nonrenewal and the date the termination shall take |
|---|
| 2614 | 2569 | | effect. |
|---|
| 2615 | 2570 | | D. Upon the affected new mot or vehicle dealer’s receipt of the |
|---|
| 2616 | 2571 | | aforementioned notice of termination, cancellation, or nonrenewal, |
|---|
| 2617 | 2572 | | the new motor vehicle dealer shall have the right to file a protest |
|---|
| 2618 | 2573 | | of such threatened termination, cancellation, or nonrenewal with the |
|---|
| 2619 | 2574 | | Commission within thirty (30) days and request a hearing. The |
|---|
| 2620 | 2575 | | hearing shall be held within one hundred eighty (180) days of the |
|---|
| 2650 | 2604 | | through 323 of Title 75 of the Oklahoma Statutes, to determine if |
|---|
| 2651 | 2605 | | the threatened cancellation, termination, or nonrenewal of the |
|---|
| 2652 | 2606 | | franchise has been for good cause and if the facto ry has complied |
|---|
| 2653 | 2607 | | with its obligations pursuant to subsections A, B , and C of this |
|---|
| 2654 | 2608 | | section and the factory shall have the burden of proof. Either |
|---|
| 2655 | 2609 | | party may request an additional one-hundred-eighty-day extension of |
|---|
| 2656 | 2610 | | the hearing date from the Commission. Approval of the requested |
|---|
| 2657 | 2611 | | extension may not be unreasonab ly withheld or delayed. If the |
|---|
| 2658 | 2612 | | Commission finds that the threatened cancellation, termination, or |
|---|
| 2659 | 2613 | | nonrenewal of the franchise has not been for good cause or violates |
|---|
| 2660 | 2614 | | subsection A, B, or C of this section, then it shall issue a final |
|---|
| 2661 | 2615 | | order stating that the threatened termination is wrongful. A |
|---|
| 2662 | 2616 | | factory shall have the right to appeal such order. During the |
|---|
| 2663 | 2617 | | pendency of the hearing and after the decision, through any appeal, |
|---|
| 2664 | 2618 | | the franchise shall rema in in full force and effect, including the |
|---|
| 2665 | 2619 | | right to transfer the franchise. If the Commission find s that the |
|---|
| 2666 | 2620 | | threatened cancellation, term ination, or nonrenewal is for good |
|---|
| 2667 | 2621 | | cause and does not violate subsection A, B, or C of this section, |
|---|
| 2668 | 2622 | | the new motor vehicle dealer shall have the right to an appeal. |
|---|
| 2669 | 2623 | | During the pendency of the action, including the f inal decision or |
|---|
| 2670 | 2624 | | appeal, the franchise s hall remain in full force and effect, |
|---|
| 2671 | 2625 | | including the right to transfer the franchise. If the new motor |
|---|
| 2700 | 2653 | | Commission shall award to the new motor vehicle dealer the attorney |
|---|
| 2701 | 2654 | | fees and costs incurred to defend the action. |
|---|
| 2702 | 2655 | | E. If the factory prevails in an action to terminate, cancel, |
|---|
| 2703 | 2656 | | or not renew any franchise, the new motor vehicle deal er shall be |
|---|
| 2704 | 2657 | | allowed fair and reasonable compensation by the manufacturer for: |
|---|
| 2705 | 2658 | | 1. New, current, and previous model year vehicle inventory |
|---|
| 2706 | 2659 | | which has been acquired from the manufacturer, and which is unused |
|---|
| 2707 | 2660 | | and has not been damaged or altered while in the new motor vehicle |
|---|
| 2708 | 2661 | | dealer’s possession; |
|---|
| 2709 | 2662 | | 2. Supplies and parts which have b een acquired from the |
|---|
| 2710 | 2663 | | manufacturer, for the purpose of this section, limited to any and |
|---|
| 2711 | 2664 | | all supplies and parts that are listed on the current parts price |
|---|
| 2712 | 2665 | | sheet available to the new motor vehicle dealer; |
|---|
| 2713 | 2666 | | 3. Equipment and furnishings, provided the new motor vehicle |
|---|
| 2714 | 2667 | | dealer purchased them from the manufacturer or its approved sources; |
|---|
| 2715 | 2668 | | and |
|---|
| 2716 | 2669 | | 4. Special tools, with such fair and reasonable compensation to |
|---|
| 2717 | 2670 | | be paid by the manufacturer withi n ninety (90) days of the effective |
|---|
| 2718 | 2671 | | date of the termination, cancellation , or nonrenewal, provided the |
|---|
| 2719 | 2672 | | new motor vehicle dealer has clear title to the inventory and other |
|---|
| 2720 | 2673 | | items and is in a position to convey that title to the manufac turer. |
|---|
| 2721 | 2674 | | a. For the purposes of paragraph 1 o f this subsection, |
|---|
| 2722 | 2675 | | fair and reasonable compensation shal l be no less than |
|---|
| 2723 | 2676 | | |
|---|
| 2726 | 2678 | | 2 |
|---|
| 2727 | 2679 | | 3 |
|---|
| 2728 | 2680 | | 4 |
|---|
| 2729 | 2681 | | 5 |
|---|
| 2730 | 2682 | | 6 |
|---|
| 2731 | 2683 | | 7 |
|---|
| 2732 | 2684 | | 8 |
|---|
| 2733 | 2685 | | 9 |
|---|
| 2734 | 2686 | | 10 |
|---|
| 2735 | 2687 | | 11 |
|---|
| 2736 | 2688 | | 12 |
|---|
| 2737 | 2689 | | 13 |
|---|
| 2738 | 2690 | | 14 |
|---|
| 2739 | 2691 | | 15 |
|---|
| 2740 | 2692 | | 16 |
|---|
| 2741 | 2693 | | 17 |
|---|
| 2742 | 2694 | | 18 |
|---|
| 2743 | 2695 | | 19 |
|---|
| 2744 | 2696 | | 20 |
|---|
| 2745 | 2697 | | 21 |
|---|
| 2746 | 2698 | | 22 |
|---|
| 2747 | 2699 | | 23 |
|---|
| 2748 | 2700 | | 24 |
|---|
| 2749 | 2701 | | |
|---|
| 2750 | 2702 | | the net acquisition pr ice of the vehicle paid by the |
|---|
| 2751 | 2703 | | new motor vehicle dealer. |
|---|
| 2752 | 2704 | | b. For the purposes of paragraphs 2, 3, and 4 of this |
|---|
| 2753 | 2705 | | subsection, fair and reason able compensation shall be |
|---|
| 2754 | 2706 | | the net acquisition price paid by the new motor |
|---|
| 2755 | 2707 | | vehicle dealer less a twenty-percent (20%) straight- |
|---|
| 2756 | 2708 | | line depreciation for each year following the dealer’s |
|---|
| 2757 | 2709 | | acquisition of the supplies, parts, equipment, |
|---|
| 2758 | 2710 | | furnishings, and/or special tools. |
|---|
| 2759 | 2711 | | F. 1. If a factory prevails in an action to terminate, cancel , |
|---|
| 2760 | 2712 | | or not renew any franchise and the new motor vehi cle dealer is |
|---|
| 2761 | 2713 | | leasing the dealership facilities, the manufacturer shall pay a |
|---|
| 2762 | 2714 | | reasonable rent to the lessor in accord ance with and subject to the |
|---|
| 2763 | 2715 | | provisions of this subsection G of this section. Nothing in this |
|---|
| 2764 | 2716 | | section shall be construed to relieve a new motor vehicle dealer of |
|---|
| 2765 | 2717 | | its duty to mitigate damages. |
|---|
| 2766 | 2718 | | G. 1. Such reasonable rental value shall be paid only to the |
|---|
| 2767 | 2719 | | extent the dealership premises are recognized in the franchise and |
|---|
| 2768 | 2720 | | only if they are: |
|---|
| 2769 | 2721 | | a. used solely for performance in accordance with the |
|---|
| 2770 | 2722 | | franchise. If the facility is used for the operation |
|---|
| 2771 | 2723 | | of more than one franchise, the reasonable rent shall |
|---|
| 2772 | 2724 | | be paid based upon the portion of the facility |
|---|
| 2773 | 2725 | | |
|---|
| 2776 | 2727 | | 2 |
|---|
| 2777 | 2728 | | 3 |
|---|
| 2778 | 2729 | | 4 |
|---|
| 2779 | 2730 | | 5 |
|---|
| 2780 | 2731 | | 6 |
|---|
| 2781 | 2732 | | 7 |
|---|
| 2782 | 2733 | | 8 |
|---|
| 2783 | 2734 | | 9 |
|---|
| 2784 | 2735 | | 10 |
|---|
| 2785 | 2736 | | 11 |
|---|
| 2786 | 2737 | | 12 |
|---|
| 2787 | 2738 | | 13 |
|---|
| 2788 | 2739 | | 14 |
|---|
| 2789 | 2740 | | 15 |
|---|
| 2790 | 2741 | | 16 |
|---|
| 2791 | 2742 | | 17 |
|---|
| 2792 | 2743 | | 18 |
|---|
| 2793 | 2744 | | 19 |
|---|
| 2794 | 2745 | | 20 |
|---|
| 2795 | 2746 | | 21 |
|---|
| 2796 | 2747 | | 22 |
|---|
| 2797 | 2748 | | 23 |
|---|
| 2798 | 2749 | | 24 |
|---|
| 2799 | 2750 | | |
|---|
| 2800 | 2751 | | utilized by the franchise being terminated, canceled , |
|---|
| 2801 | 2752 | | or nonrenewed, and |
|---|
| 2802 | 2753 | | b. not substantially in excess of facilities recommended |
|---|
| 2803 | 2754 | | by the manufacturer. |
|---|
| 2804 | 2755 | | 2. If the facilities are owned by the new motor vehicle dealer, |
|---|
| 2805 | 2756 | | an entity considered a relationship as defined in 26 U.S.C., Section |
|---|
| 2806 | 2757 | | 267(b), or a member, partner, or shareholder of the dealership, |
|---|
| 2807 | 2758 | | within ninety (90) days following the effect ive date of the |
|---|
| 2808 | 2759 | | termination, cancellation, or nonrenewal, at the option of the |
|---|
| 2809 | 2760 | | dealer or related ent ity, the manufacturer will shall either: |
|---|
| 2810 | 2761 | | a. locate a qualified purchaser who will offer to |
|---|
| 2811 | 2762 | | purchase the dealership facilities at a reasonable |
|---|
| 2812 | 2763 | | price, |
|---|
| 2813 | 2764 | | b. locate a qualified lessee who will offer to lease the |
|---|
| 2814 | 2765 | | premises for the remaining lease term at the rent set |
|---|
| 2815 | 2766 | | forth in the lease, or |
|---|
| 2816 | 2767 | | c. failing the foregoing, lease the dealership facilities |
|---|
| 2817 | 2768 | | at a reasonable rental value for the portion of the |
|---|
| 2818 | 2769 | | facility that is recognized in the franchise agreement |
|---|
| 2819 | 2770 | | for one (1) year |
|---|
| 2820 | 2771 | | purchase the existing dealership facility of the |
|---|
| 2821 | 2772 | | dealer and real estate at its fair market value . If |
|---|
| 2822 | 2773 | | the factory and dealer can not agree on the fair market |
|---|
| 2823 | 2774 | | value of the terminated franchise or agree to a |
|---|
| 2824 | 2775 | | |
|---|
| 2827 | 2777 | | 2 |
|---|
| 2828 | 2778 | | 3 |
|---|
| 2829 | 2779 | | 4 |
|---|
| 2830 | 2780 | | 5 |
|---|
| 2831 | 2781 | | 6 |
|---|
| 2832 | 2782 | | 7 |
|---|
| 2833 | 2783 | | 8 |
|---|
| 2834 | 2784 | | 9 |
|---|
| 2835 | 2785 | | 10 |
|---|
| 2836 | 2786 | | 11 |
|---|
| 2837 | 2787 | | 12 |
|---|
| 2838 | 2788 | | 13 |
|---|
| 2839 | 2789 | | 14 |
|---|
| 2840 | 2790 | | 15 |
|---|
| 2841 | 2791 | | 16 |
|---|
| 2842 | 2792 | | 17 |
|---|
| 2843 | 2793 | | 18 |
|---|
| 2844 | 2794 | | 19 |
|---|
| 2845 | 2795 | | 20 |
|---|
| 2846 | 2796 | | 21 |
|---|
| 2847 | 2797 | | 22 |
|---|
| 2848 | 2798 | | 23 |
|---|
| 2849 | 2799 | | 24 |
|---|
| 2850 | 2800 | | |
|---|
| 2851 | 2801 | | process to determine the fair market value, then the |
|---|
| 2852 | 2802 | | factory and dealer shall utilize the process described |
|---|
| 2853 | 2803 | | in paragraph 6 of subsection G of this section . If a |
|---|
| 2854 | 2804 | | manufacturer or distributor pur chases a dealership |
|---|
| 2855 | 2805 | | facility and real estate, then it shall be entitle d to |
|---|
| 2856 | 2806 | | sole ownership, posse ssion, use, and control of any |
|---|
| 2857 | 2807 | | items, buildings, or property that were included in |
|---|
| 2858 | 2808 | | the contract to purchase, or |
|---|
| 2859 | 2809 | | b. locate a qualified purchaser who will offer to |
|---|
| 2860 | 2810 | | purchase the dealership facilities and property at a |
|---|
| 2861 | 2811 | | reasonable price. |
|---|
| 2862 | 2812 | | 3. If the facilities are leased by the new motor ve hicle dealer |
|---|
| 2863 | 2813 | | from an entity other than an entity considered a relationship as |
|---|
| 2864 | 2814 | | defined in 26 U.S.C., Section 267(b), or a member, partner or |
|---|
| 2865 | 2815 | | shareholder of the d ealership, within ninety (90) days follow ing the |
|---|
| 2866 | 2816 | | effective date of the termination, cancellation , or nonrenewal the |
|---|
| 2867 | 2817 | | manufacturer will either: |
|---|
| 2868 | 2818 | | a. locate a tenant or tenants satisfactory to the lessor, |
|---|
| 2869 | 2819 | | who will sublet or assume the balance of the lease, |
|---|
| 2870 | 2820 | | b. arrange with the lessor for the cancellation o f the |
|---|
| 2871 | 2821 | | lease without penalty to the new motor vehicle dealer, |
|---|
| 2872 | 2822 | | or |
|---|
| 2873 | 2823 | | c. failing the foregoing, lease the dealership facilities |
|---|
| 2874 | 2824 | | at a reasonable rent for the portion of the facility |
|---|
| 2875 | 2825 | | |
|---|
| 2878 | 2827 | | 2 |
|---|
| 2879 | 2828 | | 3 |
|---|
| 2880 | 2829 | | 4 |
|---|
| 2881 | 2830 | | 5 |
|---|
| 2882 | 2831 | | 6 |
|---|
| 2883 | 2832 | | 7 |
|---|
| 2884 | 2833 | | 8 |
|---|
| 2885 | 2834 | | 9 |
|---|
| 2886 | 2835 | | 10 |
|---|
| 2887 | 2836 | | 11 |
|---|
| 2888 | 2837 | | 12 |
|---|
| 2889 | 2838 | | 13 |
|---|
| 2890 | 2839 | | 14 |
|---|
| 2891 | 2840 | | 15 |
|---|
| 2892 | 2841 | | 16 |
|---|
| 2893 | 2842 | | 17 |
|---|
| 2894 | 2843 | | 18 |
|---|
| 2895 | 2844 | | 19 |
|---|
| 2896 | 2845 | | 20 |
|---|
| 2897 | 2846 | | 21 |
|---|
| 2898 | 2847 | | 22 |
|---|
| 2899 | 2848 | | 23 |
|---|
| 2900 | 2849 | | 24 |
|---|
| 2901 | 2850 | | |
|---|
| 2902 | 2851 | | that is recognized in the franchise agreement for one |
|---|
| 2903 | 2852 | | (1) year or the remainder of the lease, whichever is |
|---|
| 2904 | 2853 | | less. |
|---|
| 2905 | 2854 | | 4. The manufacturer shall not be obligated to provide |
|---|
| 2906 | 2855 | | assistance under this section if the new motor vehicle dealer: |
|---|
| 2907 | 2856 | | a. fails to accept a bona fide offer from a p rospective |
|---|
| 2908 | 2857 | | purchaser, sublessee, or assignee, |
|---|
| 2909 | 2858 | | b. refuses to execute a settlement agreement with the |
|---|
| 2910 | 2859 | | manufacturer or lessor if such agreement with the |
|---|
| 2911 | 2860 | | manufacturer or lessor would be without cost to th e |
|---|
| 2912 | 2861 | | new motor vehicle dealer, or |
|---|
| 2913 | 2862 | | c. fails to make written request for assistance under |
|---|
| 2914 | 2863 | | this section within ninety (90) days after the |
|---|
| 2915 | 2864 | | effective date of the termination, cancellation , or |
|---|
| 2916 | 2865 | | nonrenewal. |
|---|
| 2917 | 2866 | | 5. The manufacturer shall be entitled to occupy and use any |
|---|
| 2918 | 2867 | | space for which it pays rent required by this section . |
|---|
| 2919 | 2868 | | H. G. In addition to the repurchase requirements set forth in |
|---|
| 2920 | 2869 | | subsections E and G F of this section, in the event the termination , |
|---|
| 2921 | 2870 | | or cancellation, or nonrenewal is the result of a discontinuance of |
|---|
| 2922 | 2871 | | a product line, the manufacturer or distributor shall compensate the |
|---|
| 2923 | 2872 | | new motor vehicle dealer in as follows: |
|---|
| 2924 | 2873 | | 1. In an amount equivalent to the fair market value of the |
|---|
| 2925 | 2874 | | terminated franchise as of the date immediately preceding the |
|---|
| 2926 | 2875 | | |
|---|
| 2929 | 2877 | | 2 |
|---|
| 2930 | 2878 | | 3 |
|---|
| 2931 | 2879 | | 4 |
|---|
| 2932 | 2880 | | 5 |
|---|
| 2933 | 2881 | | 6 |
|---|
| 2934 | 2882 | | 7 |
|---|
| 2935 | 2883 | | 8 |
|---|
| 2936 | 2884 | | 9 |
|---|
| 2937 | 2885 | | 10 |
|---|
| 2938 | 2886 | | 11 |
|---|
| 2939 | 2887 | | 12 |
|---|
| 2940 | 2888 | | 13 |
|---|
| 2941 | 2889 | | 14 |
|---|
| 2942 | 2890 | | 15 |
|---|
| 2943 | 2891 | | 16 |
|---|
| 2944 | 2892 | | 17 |
|---|
| 2945 | 2893 | | 18 |
|---|
| 2946 | 2894 | | 19 |
|---|
| 2947 | 2895 | | 20 |
|---|
| 2948 | 2896 | | 21 |
|---|
| 2949 | 2897 | | 22 |
|---|
| 2950 | 2898 | | 23 |
|---|
| 2951 | 2899 | | 24 |
|---|
| 2952 | 2900 | | |
|---|
| 2953 | 2901 | | manufacturer’s or distributor’s announcement or provid e the new |
|---|
| 2954 | 2902 | | motor vehicle dealer with a replacement franchise on substantially |
|---|
| 2955 | 2903 | | similar terms and conditions as those offered to other same line - |
|---|
| 2956 | 2904 | | make dealers.; |
|---|
| 2957 | 2905 | | 2. If the facilities are owned by the new motor vehicle dealer |
|---|
| 2958 | 2906 | | or an entity considered a relationship as defined in 26 U.S.C., |
|---|
| 2959 | 2907 | | Section 267(b), or a member, partner, or shareholder of the |
|---|
| 2960 | 2908 | | dealership, and the owner has not sold the existing dealership |
|---|
| 2961 | 2909 | | facility and real estate within the later of one hundred eighty |
|---|
| 2962 | 2910 | | (180) days of listing the propert y for sale or ninety (90) days |
|---|
| 2963 | 2911 | | after the effective date of the termi nation, then, upon the writ ten |
|---|
| 2964 | 2912 | | request of the dealer, the manufact urer or distributor shall |
|---|
| 2965 | 2913 | | purchase the existing dealership facility of the dealer and real |
|---|
| 2966 | 2914 | | estate. The facility and real estate shall be valued as if a new |
|---|
| 2967 | 2915 | | motor vehicle dealership continues to operate on the property. If |
|---|
| 2968 | 2916 | | the factory and dealer ca nnot agree on the value of the terminated |
|---|
| 2969 | 2917 | | franchise or agree to a process to determine the value, then the |
|---|
| 2970 | 2918 | | factory and dealer shall utilize the process described in paragraph |
|---|
| 2971 | 2919 | | 6 of this subsection . If a manufacturer or distributor purchases a |
|---|
| 2972 | 2920 | | dealership facility and real estate, then it shall be entitled to |
|---|
| 2973 | 2921 | | sole ownership, possession, use, and control of any items, |
|---|
| 2974 | 2922 | | buildings, or property that were included in the contract to |
|---|
| 2975 | 2923 | | purchase; |
|---|
| 2976 | 2924 | | |
|---|
| 2979 | 2926 | | 2 |
|---|
| 2980 | 2927 | | 3 |
|---|
| 2981 | 2928 | | 4 |
|---|
| 2982 | 2929 | | 5 |
|---|
| 2983 | 2930 | | 6 |
|---|
| 2984 | 2931 | | 7 |
|---|
| 2985 | 2932 | | 8 |
|---|
| 2986 | 2933 | | 9 |
|---|
| 2987 | 2934 | | 10 |
|---|
| 2988 | 2935 | | 11 |
|---|
| 2989 | 2936 | | 12 |
|---|
| 2990 | 2937 | | 13 |
|---|
| 2991 | 2938 | | 14 |
|---|
| 2992 | 2939 | | 15 |
|---|
| 2993 | 2940 | | 16 |
|---|
| 2994 | 2941 | | 17 |
|---|
| 2995 | 2942 | | 18 |
|---|
| 2996 | 2943 | | 19 |
|---|
| 2997 | 2944 | | 20 |
|---|
| 2998 | 2945 | | 21 |
|---|
| 2999 | 2946 | | 22 |
|---|
| 3000 | 2947 | | 23 |
|---|
| 3001 | 2948 | | 24 |
|---|
| 3002 | 2949 | | |
|---|
| 3003 | 2950 | | 3. If the facilities are leased by the new motor vehicle dealer |
|---|
| 3004 | 2951 | | from an entity other than an entity considered a relationshi p as |
|---|
| 3005 | 2952 | | defined in 26 U.S.C., Section 267(b), or a member, partner, or |
|---|
| 3006 | 2953 | | shareholder of the dealership, lease the dealership facilities at a |
|---|
| 3007 | 2954 | | reasonable rent for the remainder of the lease; |
|---|
| 3008 | 2955 | | 4. Any amount of pecuniary loss to the new motor vehi cle |
|---|
| 3009 | 2956 | | dealership as a result of the discontinuation of a product line, |
|---|
| 3010 | 2957 | | including but not limited to the cost of terminating services such |
|---|
| 3011 | 2958 | | as the dealership management system contract ; |
|---|
| 3012 | 2959 | | 5. The new motor vehicle dealer may immediately request payment |
|---|
| 3013 | 2960 | | under this section following the announcement in exchange for |
|---|
| 3014 | 2961 | | canceling any further franchise right s, except payments owed to the |
|---|
| 3015 | 2962 | | new motor vehicle dealer in the ordinary course of business, or may |
|---|
| 3016 | 2963 | | request payment under this section upon the final termination, |
|---|
| 3017 | 2964 | | cancellation, or nonrenewal of the franchise. In either ca se, |
|---|
| 3018 | 2965 | | payment under this section shall be made not later than ninety (90) |
|---|
| 3019 | 2966 | | days after the fair market value is determined., the lease agreement |
|---|
| 3020 | 2967 | | is provided, or other reasonable documentation is provided to the |
|---|
| 3021 | 2968 | | manufacturer or distributor supporting other pecuniary losses; and |
|---|
| 3022 | 2969 | | 6. If the factory and new motor vehicle dealer cannot agree on |
|---|
| 3023 | 2970 | | the fair market value of the terminated franchise or real estate, or |
|---|
| 3024 | 2971 | | agree to a process to determine the f air market value, then, within |
|---|
| 3025 | 2972 | | thirty (30) days of a written request by dealer, the factory and new |
|---|
| 3026 | 2973 | | motor vehicle dealer shall utilize a neutral third-party mediator to |
|---|
| 3027 | 2974 | | |
|---|
| 3030 | 2976 | | 2 |
|---|
| 3031 | 2977 | | 3 |
|---|
| 3032 | 2978 | | 4 |
|---|
| 3033 | 2979 | | 5 |
|---|
| 3034 | 2980 | | 6 |
|---|
| 3035 | 2981 | | 7 |
|---|
| 3036 | 2982 | | 8 |
|---|
| 3037 | 2983 | | 9 |
|---|
| 3038 | 2984 | | 10 |
|---|
| 3039 | 2985 | | 11 |
|---|
| 3040 | 2986 | | 12 |
|---|
| 3041 | 2987 | | 13 |
|---|
| 3042 | 2988 | | 14 |
|---|
| 3043 | 2989 | | 15 |
|---|
| 3044 | 2990 | | 16 |
|---|
| 3045 | 2991 | | 17 |
|---|
| 3046 | 2992 | | 18 |
|---|
| 3047 | 2993 | | 19 |
|---|
| 3048 | 2994 | | 20 |
|---|
| 3049 | 2995 | | 21 |
|---|
| 3050 | 2996 | | 22 |
|---|
| 3051 | 2997 | | 23 |
|---|
| 3052 | 2998 | | 24 |
|---|
| 3053 | 2999 | | |
|---|
| 3054 | 3000 | | resolve the disagreement shall select one appraiser, and the dealer |
|---|
| 3055 | 3001 | | shall select one appraiser who shall make an independent appraisal . |
|---|
| 3056 | 3002 | | The appraisers shall be state-certified general real estate |
|---|
| 3057 | 3003 | | appraisers and in good standing with the Real Estate Appraiser |
|---|
| 3058 | 3004 | | Board. Before entering upon their duties, such appraisers shall |
|---|
| 3059 | 3005 | | take and subscribe an oath, befor e a notary public or some other |
|---|
| 3060 | 3006 | | person authorized to administer oaths, that they will perform their |
|---|
| 3061 | 3007 | | duties faithfully and impartially to the best of their ability. If |
|---|
| 3062 | 3008 | | the appraisals are within ten percent (10%) of each other, the |
|---|
| 3063 | 3009 | | average of the two apprais als shall constitute the value. If the |
|---|
| 3064 | 3010 | | two appraisals differ by more than ten percent (10%), the two |
|---|
| 3065 | 3011 | | appraisers may appoint a third appraiser who shall review the two |
|---|
| 3066 | 3012 | | appraisals. The third appraisal, when taken with the first two |
|---|
| 3067 | 3013 | | appraisals and averaged among the three, shall establish the value. |
|---|
| 3068 | 3014 | | The cost of the third appraiser shall be shared equally by the |
|---|
| 3069 | 3015 | | factory and dealer. The appraisers shall make a val uation and |
|---|
| 3070 | 3016 | | determine the amount of compensation to be paid by the factory to |
|---|
| 3071 | 3017 | | the dealer. The factory will then have ninety (90) days to complete |
|---|
| 3072 | 3018 | | the transaction, unless otherwise agreed to by the parties. The |
|---|
| 3073 | 3019 | | factory and the dealer shall each be responsible for the costs of |
|---|
| 3074 | 3020 | | their retained appraisers. |
|---|
| 3075 | 3021 | | SECTION 4. This act shall become effective November 1, 2024. |
|---|