By Cain H.B. No. 941
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority and responsibility of the Texas Motor
1-3 Vehicle Board of the Texas Department of Transportation.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 1.03, Texas Motor Vehicle Commission Code
1-6 (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
1-7 read as follows:
1-8 Sec. 1.03. Definitions. In this Act:
1-9 (1) "Motor vehicle" means:
1-10 (A) every fully self-propelled vehicle which has as
1-11 its primary purpose the transport of a person or persons, or
1-12 property, on a public highway, and having two or more wheels;
1-13 (B) every two or more wheeled fully self-propelled,
1-14 titled vehicle which has as its primary purpose the transport of a
1-15 person or persons or property and is not manufactured for use on
1-16 public streets, roads, or highways; or
1-17 (C) an engine, transmission, or rear axle manufactured
1-18 for installation in a vehicle having as its primary purpose the
1-19 transport of a person or persons or property on a public highway
1-20 and having a gross vehicle weight rating of more than 16,000
1-21 pounds, whether or not attached to a vehicle chassis.
1-22 (2) "New motor vehicle" means a motor vehicle which has not
1-23 been the subject of a "retail sale" without regard to the mileage
2-1 of the vehicle.
2-2 (3) "Person" means a natural person, partnership,
2-3 corporation, association, trust, estate, or any other legal entity.
2-4 (4) "Dealer" means any person engaged in the business of
2-5 buying, selling or exchanging new motor vehicles at an established
2-6 and permanent place of business pursuant to a franchise in effect
2-7 with a manufacturer or distributor.
2-8 (5) "Manufacturer" means any person who manufactures or
2-9 assembles new motor vehicles either within or without this State.
2-10 (6) "Distributor" means any person who distributes and/or
2-11 sells new motor vehicles to dealers and who is not a manufacturer.
2-12 (7) "Representative" means any person who is or acts as an
2-13 agent, employee or representative of a manufacturer, distributor,
2-14 or converter who performs any duties in this State relating to
2-15 promoting the distribution and/or sale of new motor vehicles or
2-16 contacts dealers in this State on behalf of a manufacturer,
2-17 distributor, or converter.
2-18 (8) "Franchise" means one or more contracts under which (A)
2-19 the franchisee is granted the right to sell new motor vehicles
2-20 manufactured or distributed by the franchisor; (B) the franchisee
2-21 as an independent business is a component of franchisor's
2-22 distribution system; (C) the franchisee is substantially associated
2-23 with franchisor's trademark, trade name and commercial symbol; (D)
2-24 the franchisee's business is substantially reliant on franchisor
2-25 for a continued supply of motor vehicles, parts, and accessories
3-1 for the conduct of its business; or (E) any right, duty, or
3-2 obligation granted or imposed by this Act is affected. The term
3-3 includes a written communication from a franchisor to a franchisee
3-4 by which a duty is imposed on the franchisee.
3-5 (9)
3-6 (10) "Broker" means a person who, for a fee, commission, or
3-7 other valuable consideration, arranges or offers to arrange a
3-8 transaction involving the sale, for purposes other than resale, of
3-9 a new motor vehicle, and who is not:
3-10 (A) a dealer or bona fide employee of a dealer when
3-11 acting on behalf of a dealer;
3-12 (B) a representative or bona fide employee of a
3-13 representative when acting on behalf of a representative;
3-14 (C) a distributor or bona fide employee of a
3-15 distributor when acting on behalf of a distributor; or
3-16 (D) at any point in the transaction the bona fide
3-17 owner of the vehicle involved in the transaction.
3-18 (11) "Motor home" means a motor vehicle which is designed to
3-19 provide temporary living quarters and which:
3-20 (A) is built onto as an integral part of, or is
3-21 permanently attached to, a motor vehicle chassis; and
3-22 (B) contains at least four of the following
3-23 independent life support systems if each is permanently installed
3-24 and designed to be removed only for purposes of repair or
3-25 replacement and meets the standards of the American National
4-1 Standards Institute, Standards for Recreational Vehicles:
4-2 (i) a cooking facility with an on-board fuel
4-3 source;
4-4 (ii) a gas or electric refrigerator;
4-5 (iii) a toilet with exterior evacuation;
4-6 (iv) a heating or air conditioning system with
4-7 an on-board power or fuel source separate from the vehicle engine;
4-8 (v) a potable water supply system that includes
4-9 at least a sink, a faucet, and a water tank with an exterior
4-10 service supply connection;
4-11 (vi) a 110-125 volt electric power supply.
4-12 (12) "Conversion" means a motor vehicle, other than a motor
4-13 home, which has been modified by a person other than the dealer or
4-14 manufacturer of the chassis of the motor vehicle and which has not
4-15 been the subject of a retail sale.
4-16 (13) "Motor home manufacturer" means a person other than the
4-17 manufacturer of the chassis of a motor vehicle who, prior to the
4-18 retail sale of the motor vehicle, performs modifications on the
4-19 chassis that result in the finished product being classified as a
4-20 motor home.
4-21 (14) "Chassis manufacturer" means a person who manufactures
4-22 and produces the frame upon which is mounted the body of a motor
4-23 vehicle.
4-24 (15) "Converter" means a person, other than a dealer, who
4-25 prior to the retail sale of a motor vehicle, assembles, installs,
5-1 or affixes a body, cab, or special equipment to a chassis, or who
5-2 adds, subtracts from, or modifies a previously assembled or
5-3 manufactured motor vehicle.
5-4 (16) "Rule" means a statement by the Commission of general
5-5 and future applicability that implements, interprets, or prescribes
5-6 law or policy or describes the organization or procedural practice
5-7 requirements of the Commission. The term includes the amendment or
5-8 repeal of a prior rule, but does not include statements concerning
5-9 only the internal management of the Commission which do not affect
5-10 the rights of a person not connected with the Commission.
5-11 (17) "Party" means each person or agency named or admitted
5-12 as a party and whose legal rights, duties, or privileges are to be
5-13 determined by the Commission after an opportunity for adjudicative
5-14 hearing.
5-15 (18) "Relocation" means the transfer of an existing
5-16 dealership operation to facilities at a different location,
5-17 including a transfer which results in a consolidation or dualing of
5-18 an existing dealer's operation.
5-19 (19) "Retail sale" means the sale of a motor vehicle except:
5-20 (A) a sale in which the purchaser acquires a vehicle
5-21 for the purpose of resale; or
5-22 (B) a sale of a vehicle that is operated under and in
5-23 accordance with Article 6686, Revised Statutes.
5-24 (20) "Warranty work" means parts, labor, and any other
5-25 expenses incurred by a dealer in complying with the terms of a
6-1 manufacturer's or distributor's warranty.
6-2 SECTION 2. Section 1.04, Texas Motor Vehicle Commission Code
6-3 (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
6-4 read as follows:
6-5 Sec. 1.04. Construction and severability. This Act
6-6 shall be liberally construed so as to effectuate its purposes. The
6-7 provisions of this Act are severable and if any phrase, clause,
6-8 sentence, or provision of this Act is declared to be contrary to
6-9 the constitution of this state, or of the United States or the
6-10 applicability thereof to any person or circumstance is held
6-11 invalid, the validity of the remainder of this Act and the
6-12 applicability thereof to any person or circumstance is not affected
6-13 thereby. An agreement to waive the terms of this Act is void and
6-14 unenforceable.
6-15 SECTION 3. Subsection (e), Section 4.05, Texas Motor Vehicle
6-16 Commission Code (Article 4413(36), Vernon's Texas Civil Statutes),
6-17 is amended to read as follows:
6-18 (e) The filing fees for a contested case or protest that
6-19 involves a hearing are:
6-20 (1) for a complaint filed under Section 6.07 of this
6-21 Act, $35 <$75>; and
6-22 (2) for all other complaints or protests, $200.
6-23 SECTION 4. Section 5.01, Texas Motor Vehicle Commission Code
6-24 (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
6-25 read as follows:
7-1 Sec. 5.01. DEALERS. It shall be unlawful for any
7-2 dealer to:
7-3 (1) Require a retail purchaser of a new motor
7-4 vehicle as a condition of sale and delivery thereof to purchase
7-5 special features, equipment, parts, or accessories not ordered or
7-6 desired by the purchaser, provided such features, equipment, parts,
7-7 or accessories are not already installed on the new motor vehicle
7-8 at the time of sale.
7-9 (2) Use false, deceptive, or misleading
7-10 advertising.
7-11 (3) Fail to perform the obligations placed on
7-12 the selling dealer in connection with the delivery and preparation
7-13 of a new motor vehicle for retail sale as provided in the
7-14 manufacturer's preparation and delivery agreements on file with the
7-15 Commission and applicable to such vehicle.
7-16 (4) Fail to perform the obligations placed on
7-17 the dealer in connection with the manufacturer's warranty
7-18 agreements on file with the Commission.
7-19 (5) Operate as a dealer without a currently
7-20 valid license from the Commission or otherwise violate this Act or
7-21 rules promulgated by the Commission hereunder.
7-22 (6) Operate without appropriate signs readily
7-23 and easily visible to the public, identifying the dealer's place of
7-24 business and the products the dealer offers for sale. In the event
7-25 of a conflict with another law or ordinance, this Subdivision
8-1 prevails, and in the event of a dispute, the Board has exclusive
8-2 jurisdiction to determine whether a sign or signs are in compliance
8-3 with the terms of this Subdivision.
8-4 SECTION 5. Section 5.02, Texas Motor Vehicle Commission Code
8-5 (Article 4413(36), Vernon's Texas Civil Statutes), is amended to
8-6 read as follows:
8-7 Sec. 5.02. Manufacturers; Distributors; Representatives. It
8-8 shall be unlawful for any manufacturer, distributor, or
8-9 representative to:
8-10 (1) Require or attempt to require any dealer to
8-11 order, accept delivery of or pay anything of value, directly or
8-12 indirectly, for any motor vehicle, appliance, part, accessory or
8-13 any other commodity unless voluntarily ordered or contracted for by
8-14 such dealer.
8-15 (2) Refuse or fail to deliver, in reasonable
8-16 quantities and within a reasonable time, to <after receipt of an
8-17 order from> a dealer having a franchise agreement for the retail
8-18 sale of any motor vehicles sold or distributed by such
8-19 manufacturer, distributor, or representative, any new motor vehicle
8-20 or parts or accessories to new motor vehicles as are covered by
8-21 such franchise if such vehicle, parts or accessories are publicly
8-22 advertised as being available for delivery or are actually being
8-23 delivered; provided, however, this provision is not violated if
8-24 such failure is caused by acts of God, work stoppage or delays due
8-25 to strikes or labor disputes, freight embargoes or other causes
9-1 beyond the control of the manufacturer, distributor, or
9-2 representative.
9-3 (3) Notwithstanding the terms of any franchise
9-4 agreement:
9-5 (A) Terminate or refuse to continue any
9-6 franchise with a dealer unless all of the following conditions are
9-7 met:
9-8 (i) the dealer and the Commission
9-9 have received written notice by registered or certified mail from
9-10 the manufacturer, distributor, or representative not less than 60
9-11 days before the effective date of termination or noncontinuance
9-12 setting forth the specific grounds for termination or
9-13 noncontinuance; and
9-14 (ii) the written notice contains on
9-15 the first page thereof a conspicuous statement which reads as
9-16 follows: "NOTICE TO DEALER: YOU MAY BE ENTITLED TO FILE A PROTEST
9-17 WITH THE TEXAS MOTOR VEHICLE COMMISSION IN AUSTIN, TEXAS, AND HAVE
9-18 A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED TERMINATION OR
9-19 NONCONTINUANCE OF YOUR FRANCHISE UNDER THE TERMS OF THE TEXAS MOTOR
9-20 VEHICLE COMMISSION CODE IF YOU OPPOSE THIS ACTION."; and
9-21 (iii) the manufacturer, distributor,
9-22 or representative has received the informed, written consent of the
9-23 affected dealer or the appropriate period for the affected dealer
9-24 to protest the proposed franchise termination or noncontinuance has
9-25 lapsed; or
10-1 (iv) if the affected dealer files a
10-2 protest with the Commission within the greater of (1) 60 days after
10-3 receiving its 60-day notice of proposed termination or
10-4 noncontinuance or (2) the time specified in such notice, the
10-5 Commission determines that the party seeking to terminate or not
10-6 continue a dealer's franchise has established by a preponderance of
10-7 the evidence, at a hearing called by the Commission, that there is
10-8 good cause for the proposed termination or noncontinuance.
10-9 (v) Notwithstanding Subdivisions
10-10 (3)(A)(i) and (3)(A)(iv) of this section, notice may be made not
10-11 less than 15 days prior to the effective date of termination or
10-12 noncontinuance if a licensed dealer fails to conduct its customary
10-13 sales and service operations during its customary business hours
10-14 for seven consecutive business days unless such failure is caused
10-15 by an act of God, work stoppage or delays due to strikes or labor
10-16 disputes, an order of the Commission, or other causes beyond the
10-17 control of the dealer.
10-18 (B) Whenever a dealer files a timely
10-19 protest to a proposed franchise termination or noncontinuance, the
10-20 Commission shall notify the party seeking to terminate or to not
10-21 continue the protesting dealer's franchise that a timely protest
10-22 has been filed, that a hearing is required in accordance with this
10-23 Act, and that the party who gave the dealer notice of termination
10-24 or noncontinuance of the franchise may not terminate or refuse to
10-25 continue the franchise until the Commission issues its final
11-1 decision or order.
11-2 (C) If a franchise is terminated or not
11-3 continued, another franchise in the same line-make will be
11-4 established within a reasonable time unless it is shown to the
11-5 Commission by a preponderance of the evidence that the community or
11-6 trade area cannot reasonably support such a dealership. If this
11-7 showing is made, no dealer license shall be thereafter issued in
11-8 the same area unless a change in circumstances is established.
11-9 (4) Notwithstanding the terms of any franchise
11-10 agreement, modify or replace a franchise with a succeeding
11-11 franchise if the modification or replacement would adversely
11-12 affect, to a substantial degree, the dealer's sales, investment, or
11-13 obligations to provide service to the public, unless the
11-14 manufacturer, distributor, or representative has first given the
11-15 Commission and each affected dealer written notice by registered or
11-16 certified mail of any such action 60 days in advance of the
11-17 modification or replacement. The written notice shall contain on
11-18 the first page thereof a conspicuous statement which reads as
11-19 follows: "NOTICE TO DEALER: YOU MAY BE ENTITLED TO FILE A PROTEST
11-20 WITH THE TEXAS MOTOR VEHICLE COMMISSION IN AUSTIN, TEXAS, AND HAVE
11-21 A HEARING IN WHICH YOU MAY PROTEST THE PROPOSED MODIFICATION OR
11-22 REPLACEMENT OF YOUR FRANCHISE WITH A SUCCEEDING FRANCHISE UNDER THE
11-23 TERMS OF THE TEXAS MOTOR VEHICLE COMMISSION CODE IF YOU OPPOSE THIS
11-24 ACTION." Within the greater of (1) 60 days after receipt of such
11-25 notice or (2) the time specified in such notice, a dealer may file
12-1 a protest with the Commission and the modification or replacement
12-2 shall not become effective unless and until the Commission
12-3 determines that the party seeking to modify or replace a franchise
12-4 with a succeeding franchise has demonstrated by a preponderance of
12-5 the evidence that there is good cause for the modification or
12-6 replacement. The prior franchise shall continue in effect until
12-7 the protest is resolved by the Commission.
12-8 (5) Notwithstanding the terms of any franchise
12-9 agreement, in determining whether good cause has been established
12-10 for modifying, replacing, terminating, or refusing to continue a
12-11 franchise, the Commission shall consider all the existing
12-12 circumstances including, without limitation by the enumeration
12-13 herein, all the following:
12-14 (A) the dealer's sales in relation to the sales
12-15 in the market;
12-16 (B) the dealer's investment and obligations;
12-17 (C) injury to the public welfare;
12-18 (D) the adequacy of the dealer's service
12-19 facilities, equipment, parts, and personnel in relation to those of
12-20 other dealers of new motor vehicles of the same line-make;
12-21 (E) whether warranties are being honored by the
12-22 dealer;
12-23 (F) the parties' compliance with their franchise
12-24 agreement; and
12-25 (G) the enforceability of the franchise
13-1 agreement from a public policy standpoint, including, without
13-2 limitation, issues of the reasonableness of the franchise
13-3 agreement's terms, oppression, adhesion, and the relative
13-4 bargaining power of the parties.
13-5 Good cause shall not be shown solely by the desire of a
13-6 manufacturer, distributor, or representative for market
13-7 penetration.
13-8 (6) Use any false, deceptive or misleading
13-9 advertising.
13-10 (7) Notwithstanding the terms of any franchise
13-11 agreement, prevent any dealer from reasonably changing the capital
13-12 structure of his dealership or the means by or through which he
13-13 finances the operation thereof, provided that the dealer meets
13-14 reasonable capital requirements.
13-15 (8) Notwithstanding the terms of any franchise
13-16 agreement, fail to give effect to or attempt to prevent any sale or
13-17 transfer of a dealer, dealership or franchise or interest therein
13-18 or management thereof unless, after complaint or protest, it is
13-19 demonstrated to the Commission after hearing that the result of any
13-20 such sale or transfer will be detrimental to the public or the
13-21 representation of the manufacturer or distributor.
13-22 (9) Notwithstanding the terms of any franchise
13-23 agreement, require or attempt to require that a dealer assign to or
13-24 act as an agent for any manufacturer, distributor or representative
13-25 in the securing of promissory notes and security agreements given
14-1 in connection with the sale or purchase of new motor vehicles or
14-2 the securing of policies of insurance on or having to do with the
14-3 operation of vehicles sold.
14-4 (10) Notwithstanding the terms of any franchise
14-5 agreement, fail or refuse, after complaint and hearing, to perform
14-6 the obligations placed on the manufacturer in connection with the
14-7 delivery, preparation and warranty of a new motor vehicle as
14-8 provided in the manufacturer's warranty, preparation, and delivery
14-9 agreements on file with the Commission.
14-10 (11) Notwithstanding the terms of any franchise
14-11 agreement, fail to compensate its dealers for the work and services
14-12 they are required to perform in connection with the dealer's
14-13 delivery and preparation obligations according to the agreements on
14-14 file with the Commission which must be found by the Commission to
14-15 be reasonable, or fail to adequately and fairly compensate its
14-16 dealers for labor, parts and other expenses incurred by such dealer
14-17 to perform under and comply with a manufacturer's or a
14-18 distributor's warranty agreement, or require, as a prerequisite to
14-19 the manufacturer's or distributor's payment of a claim for
14-20 reimbursement as required by this section, that a dealer file with
14-21 the manufacturer or distributor the actual time spent in the
14-22 performance of labor. In no event shall any manufacturer or
14-23 distributor pay its dealers an amount of money for warranty work
14-24 that is less than that charged by the dealer to the retail
14-25 customers of the dealer for nonwarranty work of like kind. All
15-1 claims made by dealers for compensation for delivery, preparation,
15-2 and warranty work shall be paid within 30 days after approval and
15-3 shall be approved or disapproved within 30 days after receipt.
15-4 Payment for all claims made by a dealer for compensation from a
15-5 manufacturer or distributor shall be made by the manufacturer or
15-6 distributor in the form of a negotiable instrument and may not be
15-7 offset by a manufacturer or distributor on a dealer's account.
15-8 When any claim is disapproved, the dealer shall be notified in
15-9 writing of the grounds for disapproval. No claim which has been
15-10 approved and paid may be charged back to the dealer unless it can
15-11 be shown that the claim was false or fraudulent, that the repairs
15-12 were not properly made or were unnecessary to correct the defective
15-13 condition, or the dealer failed to reasonably substantiate the
15-14 claim in accordance with reasonable <the> written requirements of
15-15 the manufacturer or distributor, if the dealer has been notified of
15-16 the requirements prior to the time the claim arose, and if the
15-17 requirements were in effect at the time the claim arose. A
15-18 manufacturer or distributor may audit a claim following the
15-19 submission of the claim, and may, for a period not to exceed two
15-20 years after the submission of the claim, collect from the dealer
15-21 any sums paid by the manufacturer or distributor as a result of a
15-22 fraudulent claim. Notwithstanding the terms of a franchise
15-23 agreement or provision of law in conflict with this section, the
15-24 dealer's delivery, preparation, and warranty obligations as filed
15-25 with the Commission shall constitute the dealer's sole
16-1 responsibility for product liability as between the dealer and
16-2 manufacturer or distributor, and, except for a loss caused by the
16-3 dealer's failure to adhere to these obligations, a loss caused by
16-4 the dealer's negligence or intentional misconduct, or a loss caused
16-5 by the dealer's modification of a product without manufacturer or
16-6 distributor authorization, the manufacturer or distributor shall
16-7 reimburse the dealer for all loss incurred by the dealer, including
16-8 legal fees, court costs, and damages, as a result of the dealer
16-9 having been named a party in a product liability action.
16-10 (12) Operate as a manufacturer, distributor, or
16-11 representative without a currently valid license from the
16-12 Commission or otherwise violate this Act or rules promulgated by
16-13 the Commission hereunder.
16-14 (13) Notwithstanding the terms of any franchise
16-15 agreement, to prevent or refuse to honor the succession to a
16-16 dealership by any legal heir or devisee under the will of a dealer
16-17 or under the laws of descent and distribution of this State unless
16-18 it is shown to the Commission, after notice and hearing, that the
16-19 result of such succession will be detrimental to the public
16-20 interest and to the representation of the manufacturer or
16-21 distributor; provided, however, nothing herein shall prevent a
16-22 dealer, during his lifetime, from designating any person as his
16-23 successor dealer, by written instrument filed with the manufacturer
16-24 or distributor.
16-25 (14) Notwithstanding the terms of any franchise
17-1 agreement, require that a dealer pay or assume, directly or
17-2 indirectly, any part of any refund, rebate, discount, or other
17-3 financial adjustment made by the manufacturer, distributor, or
17-4 representative to, or in favor of, any customer of a dealer, unless
17-5 voluntarily agreed to by such dealer.
17-6 (15) Notwithstanding the terms of any franchise
17-7 agreement, deny or withhold approval of a written application to
17-8 relocate a franchise unless (A) the applicant has received written
17-9 notice of the denial or withholding of approval within 90 days
17-10 after receipt of the application containing information reasonably
17-11 necessary to enable the manufacturer or distributor to adequately
17-12 evaluate the application, and if (B) the applicant files a protest
17-13 with the Commission and establishes by a preponderance of the
17-14 evidence at a hearing called by the Commission that the grounds
17-15 for, and distance of, the relocation are reasonable.
17-16 (16) Notwithstanding the terms of any franchise
17-17 agreement, fail to pay to a dealer or any lienholder in accordance
17-18 with their respective interest after the termination of a
17-19 franchise:
17-20 (A) the dealer cost of each new motor vehicle in
17-21 the dealer's inventory with the mileage of 6,000 miles or less,
17-22 reduced by the net discount value of each, where "net discount
17-23 value" is determined according to the following formula: net cost
17-24 multiplied by total mileage divided by 100,000, and where "net
17-25 cost" equals the dealer cost plus any charges by the manufacturer,
18-1 distributor, or representative for distribution, delivery, and
18-2 taxes, less all allowances paid to the dealer by the manufacturer,
18-3 distributor, or representative for new, unsold, undamaged, and
18-4 complete motor vehicles of current model year or one year prior
18-5 model year in the dealer's inventory, except that if a vehicle
18-6 cannot be reduced by the net discount value, the manufacturer or
18-7 distributor shall pay the dealer the net cost of the vehicle;
18-8 (B) the dealer cost of each new, unused,
18-9 undamaged, and unsold part or accessory if the part or accessory is
18-10 in the current parts catalogue and is still in the original,
18-11 resalable merchandising package and in unbroken lots, except that
18-12 in the case of sheet metal, a comparable substitute for the
18-13 original package may be used, and if the part or accessory was
18-14 purchased by the dealer either directly from the manufacturer or
18-15 distributor or from an outgoing authorized dealer as a part of the
18-16 dealer's initial inventory;
18-17 (C) the fair market value of each undamaged sign
18-18 owned by the dealer which bears a trademark or tradename used or
18-19 claimed by the manufacturer, distributor, or representative if the
18-20 sign was purchased from or purchased at the request of the
18-21 manufacturer, distributor, or representative;
18-22 (D) the fair market value of all special tools,
18-23 data processing equipment, and automotive service equipment owned
18-24 by the dealer which were recommended in writing and designated as
18-25 special tools and equipment and purchased from or purchased at the
19-1 request of the manufacturer, distributor, or representative, if the
19-2 tools and equipment are in usable and good condition except for
19-3 reasonable wear and tear;
19-4 (E) the cost of transporting, handling, packing,
19-5 storing, and loading of any property subject to repurchase under
19-6 this section;
19-7 (F) except as provided by this subdivision, any
19-8 sums due as provided by Paragraph (A) of this subdivision within 60
19-9 days after termination of a franchise and any sums due as provided
19-10 by Paragraphs (B) through (E) of this subdivision within 90 days
19-11 after termination of a franchise. As a condition of payment, the
19-12 dealer is to comply with reasonable requirements with respect to
19-13 the return of inventory as are set out in the terms of the
19-14 franchise agreement. A manufacturer or distributor shall reimburse
19-15 a dealer for the dealer's cost for storing any property covered by
19-16 this subdivision beginning 90 days following termination. A
19-17 manufacturer or distributor shall reimburse a dealer for the
19-18 dealer's cost of storing any property covered by this subdivision
19-19 before the expiration of 90 days from the date of termination if
19-20 the dealer notifies the manufacturer or distributor of the
19-21 commencement of storage charges within that period. On receipt of
19-22 notice of the commencement of storage charges, a manufacturer or
19-23 distributor may immediately take possession of the property in
19-24 question by repurchasing the property as provided by this
19-25 subdivision. A manufacturer, distributor, or representative who
20-1 fails to pay those sums within the prescribed time or at such time
20-2 as the dealer and lienholder, if any, proffer good title prior to
20-3 the prescribed time for payment, is liable to the dealer for:
20-4 (1) the greatest of dealer cost, fair
20-5 market value, or current price of the inventory;
20-6 (2) interest on the amount due calculated
20-7 at the rate applicable to a judgment of a court; and
20-8 (3) reasonable attorney's fees and costs.
20-9 (17) Notwithstanding the terms of any franchise
20-10 agreement, change its distributor, its method of distribution of
20-11 its products in this state, or its business structure or ownership
20-12 in a manner that results in the termination or noncontinuance of a
20-13 franchise without good cause. The manufacturer, distributor, or
20-14 representative shall issue the same notice to the dealer and to the
20-15 Commission as is provided in Subdivisions (3)(A) and (B) of this
20-16 section and said same procedures shall apply to the parties.
20-17 (18) Notwithstanding the terms of any franchise
20-18 agreement, require a dealer to submit to arbitration on any issue
20-19 unless the dealer and the manufacturer, distributor, or
20-20 representative and their respective counsel agree to arbitrate
20-21 after a controversy arises. The arbitrator shall apply the
20-22 provisions of this Act in resolving the pertinent controversy.
20-23 Either party may appeal to the Commission a decision of an
20-24 arbitrator on the ground that the arbitrator failed to apply this
20-25 Act.
21-1 (19) Notwithstanding the terms of any franchise
21-2 agreement, require that a dealer join, contribute to, or affiliate
21-3 with, directly or indirectly, any advertising association.
21-4 (20) Notwithstanding the terms of a franchise
21-5 agreement:<,>
21-6 (A) require adherence to unreasonable sales or
21-7 service standards;
21-8 (B) directly or indirectly, discriminate against
21-9 a dealer or otherwise treat dealers differently as a result of a
21-10 formula or other calculation or process intended to gauge the
21-11 performance of a dealership;
21-12 (C) unreasonably require that a dealer purchase
21-13 special tools or equipment; or
21-14 (D) fail to compensate a dealer for all costs
21-15 incurred by the dealer in complying with the terms of a product
21-16 recall by the manufacturer or distributor, including the costs, if
21-17 any, incurred by the dealer in notifying vehicle owners of the
21-18 existence of the recall.
21-19 (21) Discriminate unreasonably between or among
21-20 franchisees in the sale of a motor vehicle owned by the
21-21 manufacturer or distributor.
21-22 (22) Directly or indirectly, or through a subsidiary
21-23 or agent, require, as a condition for obtaining financing for a
21-24 motor vehicle, the purchaser of a vehicle to purchase any product
21-25 other than the motor vehicle from the manufacturer or distributor,
22-1 or from an entity owned or controlled by the manufacturer or
22-2 distributor.
22-3 (23) Directly or indirectly, or through a subsidiary
22-4 or agent, require, as a condition of its or its subsidiary's
22-5 agreement to provide financing for a motor vehicle, that any
22-6 insurance policy or service contract purchased by the motor vehicle
22-7 purchaser be purchased from a specific source.
22-8 (24) Compel a dealer through a financing subsidiary of
22-9 the manufacturer or distributor to agree to unreasonable operating
22-10 requirements or directly or indirectly to terminate a dealer
22-11 through the actions of a financing subsidiary of the manufacturer
22-12 or distributor. This subdivision does not limit the right of a
22-13 financing entity to engage in business practices in accordance with
22-14 the usage of trade in retail and wholesale motor vehicle financing.
22-15 SECTION 6. The importance of this legislation and the
22-16 crowded condition of the calendars in both houses create an
22-17 emergency and an imperative public necessity that the
22-18 constitutional rule requiring bills to be read on three several
22-19 days in each house be suspended, and this rule is hereby suspended,
22-20 and that this Act take effect and be in force from and after its
22-21 passage, and it is so enacted.