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.