Florida State Statutes
Chapter 681
Motor Vehicle Sales Warranties
Motor Vehicle Warranty Enforcement Act
681.10 Short title.
This chapter shall be known and may be cited as the "Motor Vehicle Warranty
Enforcement Act."
681.101 Legislative intent.
The Legislature recognizes that a motor vehicle is a major consumer purchase and that a
defective motor vehicle undoubtedly creates a hardship for the consumer. The Legislature
further recognizes that a duly franchised motor vehicle dealer is an authorized service
agent of the manufacturer. It is the intent of the Legislature that a good faith motor
vehicle warranty complaint by a consumer be resolved by the manufacturer within a
specified period of time; however, it is not the intent of the Legislature that a consumer
establish the presumption of a reasonable number of attempts as to each manufacturer that
provides a warranty directly to the consumer. It is further the intent of the Legislature
to provide the statutory procedures whereby a consumer may receive a replacement motor
vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity
with the warranty provided for in this chapter. However, nothing in this chapter shall in
any way limit or expand the rights or remedies which are otherwise available to a consumer
under any other law.
681.102 Definitions.
As used in this chapter, the term:
(1) "Authorized service agent" means any person, including a
franchised motor vehicle dealer, who is authorized by the manufacturer to service motor
vehicles. In the case of a recreational vehicle when there are two or more
manufacturers, an authorized service agent for any individual manufacturer is any
person, including a franchised motor vehicle dealer, who is authorized to service the
items warranted by that manufacturer. The term does not include a rental car company
authorized to repair rental vehicles.
(2) "Board" means the Florida New Motor Vehicle Arbitration Board.
(3) "Collateral charges" means those additional charges to a
consumer wholly incurred as a result of the acquisition of the motor vehicle. For the
purposes of this chapter, collateral charges include, but are not limited to,
manufacturer-installed or agent-installed items or service charges, earned finance
charges, sales taxes, and title charges.
(4) "Consumer" means the purchaser, other than for purposes of
resale, or the lessee, of a motor vehicle primarily used for personal, family, or
household purposes; any person to whom such motor vehicle is transferred for the same
purposes during the duration of the Lemon Law rights period; and any other person
entitled by the terms of the warranty to enforce the obligations of the warranty.
(5) "Days" means calendar days.
(6) "Department" means the Department of Legal Affairs.
(7) "Division" means the Division of Consumer Services of the
Department of Agriculture and Consumer Services.
(8) "Incidental charges" means those reasonable costs to the
consumer which are directly caused by the nonconformity of the motor vehicle.
(9) "Lease price" means the aggregate of the capitalized cost, as
defined in s. 521.003(2), and each of the following items to the extent not included in
the capitalized cost:
(a) Lessor's earned rent charges through the date of repurchase.
(b) Collateral charges, if applicable.
(c) Any fee paid to another to obtain the lease.
(d) Any insurance or other costs expended by the lessor for the benefit of
the lessee.
(e) An amount equal to state and local sales taxes, not otherwise included
as collateral charges, paid by the lessor when the vehicle was initially purchased.
(10) "Lemon Law rights period" means the period ending 24 months
after the date of the original delivery of a motor vehicle to a consumer.
(11) "Lessee" means any consumer who leases a motor vehicle for 1
year or more pursuant to a written lease agreement which provides that the lessee is
responsible for repairs to such motor vehicle or any consumer who leases a motor vehicle
pursuant to a lease-purchase agreement.
(12) "Lessee cost" means the aggregate deposit and rental payments
previously paid to the lessor for the leased vehicle but excludes debt from any other
transaction.
(13) "Lessor" means a person who holds title to a motor vehicle that
is leased to a lessee under a written lease agreement or who holds the lessor's rights
under such agreement.
(14) "Manufacturer" means any person, whether a resident or
nonresident of this state, who manufactures or assembles motor vehicles, or who
manufactures or assembles chassis for recreational vehicles, or who manufactures or
installs on previously assembled truck or recreational vehicle chassis special bodies or
equipment which, when installed, forms an integral part of the motor vehicle, a
distributor as defined in s. 320.60(5), or an importer as defined in s. 320.60(7). A
dealer as defined in s. 320.60(11)(a) shall not be deemed to be a manufacturer,
distributor, or importer as provided in this section.
(15) "Motor vehicle" means a new vehicle, propelled by power other
than muscular power, which is sold in this state to transport persons or property, and
includes a recreational vehicle or a vehicle used as a demonstrator or leased vehicle if
a manufacturer's warranty was issued as a condition of sale, or the lessee is
responsible for repairs, but does not include vehicles run only upon tracks, off-road
vehicles, trucks over 10,000 pounds gross vehicle weight, motorcycles, mopeds, or the
living facilities of recreational vehicles. "Living facilities of recreational
vehicles" are those portions designed, used, or maintained primarily as living
quarters and include, but are not limited to, the flooring, plumbing system and
fixtures, roof air conditioner, furnace, generator, electrical systems other than
automotive circuits, the side entrance door, exterior compartments, and windows other
than the windshield and driver and front passenger windows.
(16) "Nonconformity" means a defect or condition that substantially
impairs the use, value, or safety of a motor vehicle, but does not include a defect or
condition that results from an accident, abuse, neglect, modification, or alteration of
the motor vehicle by persons other than the manufacturer or its authorized service
agent.
(17) "Procedure" means an informal dispute-settlement procedure
established by a manufacturer to mediate and arbitrate motor vehicle warranty disputes.
(18) "Program" means the mediation and arbitration pilot program for
recreational vehicles established in this chapter.
(19) "Purchase price" means the cash price as defined in s.
520.31(1), inclusive of any allowance for a trade-in vehicle, but excludes debt from any
other transaction. "Any allowance for a trade-in vehicle" means the net
trade-in allowance as reflected in the purchase contract or lease agreement if
acceptable to the consumer and manufacturer. If such amount is not acceptable to the
consumer and manufacturer, then the trade-in allowance shall be an amount equal to 100
percent of the retail price of the trade-in vehicle as reflected in the NADA Official
Used Car Guide (Southeastern Edition) or NADA Recreation Vehicle Appraisal Guide,
whichever is applicable, in effect at the time of the trade-in. The manufacturer shall
be responsible for providing the applicable NADA book.
(20) "Reasonable offset for use" means the number of miles
attributable to a consumer up to the date of a settlement agreement or arbitration
hearing, whichever occurs first, multiplied by the purchase price of the vehicle and
divided by 120,000, except in the case of a recreational vehicle, in which event it
shall be divided by 60,000.
(21) "Recreational vehicle" means a motor vehicle primarily designed
to provide temporary living quarters for recreational, camping, or travel use, but does
not include a van conversion.
(22) "Replacement motor vehicle" means a motor vehicle which is
identical or reasonably equivalent to the motor vehicle to be replaced, as the motor
vehicle to be replaced existed at the time of acquisition. "Reasonably equivalent
to the motor vehicle to be replaced" means the manufacturer's suggested retail
price of the replacement vehicle shall not exceed 105 percent of the manufacturer's
suggested retail price of the motor vehicle to be replaced. In the case of a
recreational vehicle, "reasonably equivalent to the motor vehicle to be
replaced" means the retail price of the replacement vehicle shall not exceed 105
percent of the purchase price of the recreational vehicle to be replaced.
(23) "Warranty" means any written warranty issued by the
manufacturer, or any affirmation of fact or promise made by the manufacturer, excluding
statements made by the dealer, in connection with the sale of a motor vehicle to a
consumer which relates to the nature of the material or workmanship and affirms or
promises that such material or workmanship is free of defects or will meet a specified
level of performance.
681.103 Duty of manufacturer to conform a motor vehicle to the warranty.
(1) If a motor vehicle does not conform to the warranty and the consumer first
reports the problem to the manufacturer or its authorized service agent during the Lemon
Law rights period, the manufacturer or its authorized service agent shall make such
repairs as are necessary to conform the vehicle to the warranty, irrespective of whether
such repairs are made after the expiration of the Lemon Law rights period. Such repairs
shall be at no cost to the consumer if made during the term of the manufacturer's
written express warranty. Nothing in this paragraph shall be construed to grant an
extension of the Lemon Law rights period or to expand the time within which a consumer
must file a claim under this chapter.
(2) Each manufacturer shall provide to its consumers conspicuous notice of the
address and phone number for its zone, district, or regional office for this state in
the written warranty or owner's manual. By January 1 of each year, each manufacturer
shall forward to the Department of Legal Affairs a copy of the owner's manual and any
written warranty for each make and model of motor vehicle that it sells in this state.
(3) At the time of acquisition, the manufacturer shall inform the consumer
clearly and conspicuously in writing how and where to file a claim with a certified
procedure if such procedure has been established by the manufacturer pursuant to s.
681.108. The manufacturer shall provide to the dealer and, at the time of acquisition,
the dealer shall provide to the consumer a written statement that explains the
consumer's rights under this chapter. The written statement shall be prepared by the
Department of Legal Affairs and shall contain a toll-free number for the division that
the consumer can contact to obtain information regarding the consumer's rights and
obligations under this chapter or to commence arbitration. If the manufacturer obtains a
signed receipt for timely delivery of sufficient quantities of this written statement to
meet the dealer's vehicle sales requirements, it shall constitute prima facie evidence
of compliance with this subsection by the manufacturer. The consumer's signed
acknowledgment of receipt of materials required under this subsection shall constitute
prima facie evidence of compliance by the manufacturer and dealer. The form of the
acknowledgments shall be approved by the Department of Legal Affairs, and the dealer
shall maintain the consumer's signed acknowledgment for 3 years.
(4) A manufacturer, through its authorized service agent, shall provide to the
consumer, each time the consumer's motor vehicle is returned after being examined or
repaired under the warranty, a fully itemized, legible statement or repair order
indicating any test drive performed and the approximate length of the test drive, any
diagnosis made, and all work performed on the motor vehicle including, but not limited
to, a general description of the problem reported by the consumer or an identification
of the defect or condition, parts and labor, the date and the odometer reading when the
motor vehicle was submitted for examination or repair, and the date when the repair or
examination was completed.
681.104 Nonconformity of motor vehicles.
(1)
(a) After three attempts have been made to repair the same nonconformity,
the consumer shall give written notification, by registered or express mail to the
manufacturer, of the need to repair the nonconformity to allow the manufacturer a
final attempt to cure the nonconformity. The manufacturer shall have 10 days,
commencing upon receipt of such notification, to respond and give the consumer the
opportunity to have the motor vehicle repaired at a reasonably accessible repair
facility within a reasonable time after the consumer's receipt of the response. The
manufacturer shall have 10 days, except in the case of a recreational vehicle, in
which event the manufacturer shall have 45 days, commencing upon the delivery of the
motor vehicle to the designated repair facility by the consumer, to conform the motor
vehicle to the warranty. If the manufacturer fails to respond to the consumer and give
the consumer the opportunity to have the motor vehicle repaired at a reasonably
accessible repair facility or perform the repairs within the time periods prescribed
in this subsection, the requirement that the manufacturer be given a final attempt to
cure the nonconformity does not apply.
(b) If the motor vehicle is out of service by reason of repair of one or
more nonconformities by the manufacturer or its authorized service agent for a
cumulative total of 15 or more days, exclusive of downtime for routine maintenance
prescribed by the owner's manual, the consumer shall so notify the manufacturer in
writing by registered or express mail to give the manufacturer or its authorized
service agent an opportunity to inspect or repair the vehicle.
(2)
(a) If the manufacturer, or its authorized service agent, cannot conform the
motor vehicle to the warranty by repairing or correcting any nonconformity after a
reasonable number of attempts, the manufacturer, within 40 days, shall repurchase the
motor vehicle and refund the full purchase price to the consumer, less a reasonable
offset for use, or, in consideration of its receipt of payment from the consumer of a
reasonable offset for use, replace the motor vehicle with a replacement motor vehicle
acceptable to the consumer. The refund or replacement must include all reasonably
incurred collateral and incidental charges. However, the consumer has an unconditional
right to choose a refund rather than a replacement motor vehicle. Upon receipt of such
refund or replacement, the consumer, lien holder, or lessor shall furnish to the
manufacturer clear title to and possession of the motor vehicle.
(b) Refunds shall be made to the consumer and lien holder of record, if any,
as their interests may appear. If applicable, refunds shall be made to the lessor and
lessee as follows: The lessee shall receive the lessee cost and the lessor shall
receive the lease price less the lessee cost. A penalty for early lease termination
may not be assessed against a lessee who receives a replacement motor vehicle or
refund under this chapter. The Department of Revenue shall refund to the manufacturer
any sales tax which the manufacturer refunded to the consumer, lien holder, or lessor
under this section, if the manufacturer provides to the department a written request
for a refund and evidence that the sales tax was paid when the vehicle was purchased
and that the manufacturer refunded the sales tax to the consumer, lien holder, or
lessor.
(3) It is presumed that a reasonable number of attempts have been undertaken
to conform a motor vehicle to the warranty if, during the Lemon Law rights period,
either:
(a) The same nonconformity has been subject to repair at least three times
by the manufacturer or its authorized service agent, plus a final attempt by the
manufacturer to repair the motor vehicle if undertaken as provided for in paragraph
(1)(a), and such nonconformity continues to exist; or
(b) The motor vehicle has been out of service by reason of repair of one or
more nonconformities by the manufacturer, or its authorized service agent, for a
cumulative total of 30 or more days, 60 or more days in the case of a recreational
vehicle, exclusive of downtime for routine maintenance prescribed by the owner's
manual. The manufacturer or its authorized service agent must have had at least one
opportunity to inspect or repair the vehicle following receipt of the notification as
provided in paragraph (1)(b). The 30-day period, or 60-day period in the case of a
recreational vehicle, may be extended by any period of time during which repair
services are not available to the consumer because of war, invasion, strike, fire,
flood, or natural disaster.
(4) It is an affirmative defense to any claim under this chapter that:
(a) The alleged nonconformity does not substantially impair the use, value,
or safety of the motor vehicle;
(b) The nonconformity is the result of an accident, abuse, neglect, or
unauthorized modifications or alterations of the motor vehicle by persons other than
the manufacturer or its authorized service agent; or
(c) The claim by the consumer was not filed in good faith.
Any other affirmative defense allowed by law may be raised against the claim.
681.106 Bad faith claims.
Any claim by a consumer which is found by the court to have been filed in bad faith or
solely for the purpose of harassment, or in complete absence of a justiciable issue of
either law or fact raised by the consumer, shall result in the consumer being liable for
all costs and reasonable attorney's fees incurred by the manufacturer, or its agent, as a
direct result of the bad faith claim.
681.108 Dispute-settlement procedures.
(1) If a manufacturer has established a procedure, which the division has
certified as substantially complying with the provisions of 16 C.F.R. part 703, in
effect October 1, 1983, and with the provisions of this chapter and the rules adopted
under this chapter, and has informed the consumer how and where to file a claim with
such procedure pursuant to s. 681.103(3), the provisions of s. 681.104(2) apply to the
consumer only if the consumer has first resorted to such procedure. The decision makers
for a certified procedure shall, in rendering decisions, take into account all legal and
equitable factors germane to a fair and just decision, including, but not limited to,
the warrancertified procedure, a consumer claim arising
during the Lemon Law rights period must be filed with the certified procedure no later
than 60 days after the expiration of the Lemon Law rights period. If a decision is not
rendered by the certified procedure within 40 days of filing, the consumer may apply to
the division to have the dispute removed to the board for arbitration.
(2) If a manufacturer has a certified procedure, a consumer claim arising
during the Lemon Law rights period must be filed with the certified procedure no later
than 60 days after the expiration of the Lemon Law rights period. If a consumer is not
satisfied with the decision or the manufacturer's compliance therewith, the consumer may
apply to the division to have the dispute submitted to the board for arbitration. A
manufacturer may not seek review of a decision made under its procedure.
(3) If a manufacturer has no certified procedure or if a certified procedure
does not have jurisdiction to resolve the dispute, a consumer may apply directly to the
division to have the dispute submitted to the board for arbitration.
(4) A consumer must request arbitration before the board with respect to a
claim arising during the Lemon Law rights period no later than 60 days after the
expiration of the Lemon Law rights period, or within 30 days after the final action of a
certified procedure, whichever date occurs later.
(5) The division shall screen all requests for arbitration before the board to
determine eligibility. The consumer's request for arbitration before the board shall be
made on a form prescribed by the department. The division shall forward to the board all
disputes that the division determines are potentially entitled to relief under this
chapter.
(6) The division may reject a dispute that it determines to be fraudulent or
outside the scope of the board's authority. Any dispute deemed by the division to be
ineligible for arbitration by the board due to insufficient evidence may be reconsidered
upon the submission of new information regarding the dispute. Following a second review,
the division may reject a dispute if the evidence is clearly insufficient to qualify for
relief. Any dispute rejected by the division shall be forwarded to the department and a
copy shall be sent by registered mail to the consumer and the manufacturer, containing a
brief explanation as to the reason for rejection.
(7) If the division rejects a dispute, the consumer may file a lawsuit to
enforce the remedies provided under this chapter. In any civil action arising under this
chapter and relating to a matter considered by the division, any determination made to
reject a dispute is admissible in evidence.
(8) The department shall have the authority to adopt reasonable rules to carry
out the provisions of this section.
681.1095 Florida New Motor Vehicle Arbitration Board.
Creation and function.
(1) There is established within the Department of Legal Affairs, the Florida
New Motor Vehicle Arbitration Board, consisting of members appointed by the Attorney
General for an initial term of 1 year. Board members may be reappointed for additional
terms of 2 years. Each board member is accountable to the Attorney General for the
performance of the member's duties and is exempt from civil liability for any act or
omission which occurs while acting in the member's official capacity. The Department of
Legal Affairs shall defend a member in any action against the member or the board which
arises from any such act or omission. The Attorney General may establish as many regions
of the board as necessary to carry out the provisions of this chapter.
(2) The boards shall hear cases in various locations throughout the state so
any consumer whose dispute is approved for arbitration by the division may attend an
arbitration hearing at a reasonably convenient location and present a dispute orally.
Hearings shall be conducted by panels of three board members assigned by the department.
A majority vote of the three-member board panel shall be required to render a decision.
Arbitration proceedings under this section shall be open to the public on reasonable and
nondiscriminatory terms.
(3) Each region of the board shall consist of up to eight members. The members
of the board shall construe and apply the provisions of this chapter, and rules adopted
thereunder, in making their decisions. An administrator and a secretary shall be
assigned to each board by the Department of Legal Affairs. At least one member of each
board must be a person with expertise in motor vehicle mechanics. A member must not be
employed by a manufacturer or a franchised motor vehicle dealer or be a staff member, a
decision maker, or a consultant for a procedure. Board members shall be trained in the
application of this chapter and any rules adopted under this chapter, shall be
reimbursed for travel expenses pursuant to s. 112.061, and shall be compensated at a
rate or wage prescribed by the Attorney General.
(4) Before filing a civil action on a matter subject to s. 681.104, the
consumer must first submit the dispute to the division, and to the board if such dispute
is deemed eligible for arbitration.
(5) Manufacturers shall submit to arbitration conducted by the board if such
arbitration is requested by a consumer and the dispute is deemed eligible for
arbitration by the division pursuant to s. 681.109.
(6) The board shall hear the dispute within 40 days and render a decision
within 60 days after the date the request for arbitration is approved. The board may
continue the hearing on its own motion or upon the request of a party for good cause
shown. A request for continuance by the consumer constitutes waiver of the time periods
set forth in this subsection. The Department of Legal Affairs, at the board's request,
may investigate disputes, and may issue subpoenas for the attendance of witnesses and
for the production of records, documents, and other evidence before the board. The
failure of the board to hear a dispute or render a decision within the prescribed
periods does not invalidate the decision.
(7) At all arbitration proceedings, the parties may present oral and written
testimony, present witnesses and evidence relevant to the dispute, cross-examine
witnesses, and be represented by counsel. The board may administer oaths or affirmations
to witnesses and inspect the vehicle if requested by a party or if the board deems such
inspection appropriate.
(8) The board shall grant relief, if a reasonable number of attempts have been
undertaken to correct a nonconformity or nonconformities.
(9) The decision of the board shall be sent by registered mail to the consumer
and the manufacturer, and shall contain written findings of fact and rationale for the
decision. If the decision is in favor of the consumer, the manufacturer must, within 40
days after receipt of the decision, comply with the terms of the decision. Compliance
occurs on the date the consumer receives delivery of an acceptable replacement motor
vehicle or the refund specified in the arbitration award. In any civil action arising
under this chapter and relating to a dispute arbitrated before the board, any decision
by the board is admissible in evidence.
(10) A decision is final unless appealed by either party. A petition to the
circuit court to appeal a decision must be made within 30 days after receipt of the
decision. The petition shall be filed in the county where the consumer resides, or where
the motor vehicle was acquired, or where the arbitration hearing was conducted. Within 7
days after the petition has been filed, the appealing party must send a copy of the
petition to the department. If the department does not receive notice of such petition
within 40 days after the manufacturer's receipt of a decision in favor of the consumer,
and the manufacturer has neither complied with, nor has petitioned to appeal such
decision, the department may apply to the circuit court to seek imposition of a fine up
to $1,000 per day against the manufacturer until the amount stands at twice the purchase
price of the motor vehicle, unless the manufacturer provides clear and convincing
evidence that the delay or failure was beyond its control or was acceptable to the
consumer as evidenced by a written statement signed by the consumer. If the manufacturer
fails to provide such evidence or fails to pay the fine, the department shall initiate
proceedings against the manufacturer for failure to pay such fine. The proceeds from the
fine herein imposed shall be placed in the Motor Vehicle Warranty Trust Fund in the
department for implementation and enforcement of this chapter. If the manufacturer fails
to comply with the provisions of this subsection, the court shall affirm the award upon
application by the consumer.
(11) All provisions in this section and s. 681.109 pertaining to compulsory
arbitration before the board, the dispute eligibility screening by the division, the
proceedings and decisions of the board, and any appeals thereof, are exempt from the
provisions of chapter 120.
(12) An appeal of a decision by the board to the circuit court by a consumer
or a manufacturer shall be by trial de novo. In a written petition to appeal a decision
by the board, the appealing party must state the action requested and the grounds relied
upon for appeal. Within 30 days of final disposition of the appeal, the appealing party
shall furnish the department with notice of such disposition and, upon request, shall
furnish the department with a copy of the order or judgment of the court.
(13) If a decision of the board in favor of the consumer is upheld by the
court, recovery by the consumer shall include the pecuniary value of the award,
attorney's fees incurred in obtaining confirmation of the award, and all costs and
continuing damages in the amount of $25 per day for each day beyond the 40-day period
following the manufacturer's receipt of the board's decision. If a court determines that
the manufacturer acted in bad faith in bringing the appeal or brought the appeal solely
for the purpose of harassment or in complete absence of a justiciable issue of law or
fact, the court shall double, and may triple, the amount of the total award.
(14) When a judgment affirms a decision by the board in favor of a consumer,
appellate review may be conditioned upon payment by the manufacturer of the consumer's
attorney's fees and giving security for costs and expenses resulting from the review
period.
(15) The department shall maintain records of each dispute submitted to the
board, and the program, including an index of motor vehicles by year, make, and model,
and shall compile aggregate annual statistics for all disputes submitted to, and decided
by, the board, as well as annual statistics for each manufacturer that include, but are
not limited to, the value, if applicable, and the number and percent of:
(a) Replacement motor vehicle requests;
(b) Purchase price refund requests;
(c) Replacement motor vehicles obtained in prehearing settlements;
(d) Purchase price refunds obtained in prehearing settlements;
(e) Replacement motor vehicles awarded in arbitration;
(f) Purchase price refunds awarded in arbitration;
(g) Board decisions neither complied with in 40 days nor petitioned for
appeal within 30 days;
(h) Board decisions appealed;
(i) Appeals affirmed by the court; and
(j) Appeals found by the court to be brought in bad faith or solely for the
purpose of harassment.
The statistics compiled under this subsection are public information.
(16) When requested by the department, a manufacturer must verify the
settlement terms for disputes that are approved for arbitration but are not decided by
the board.
681.1096 Pilot RV Mediation and Arbitration Program.
Creation and qualifications.
(1) This section and s. 681.1097 shall apply to disputes determined eligible
under this chapter involving recreational vehicles acquired on or after October 1, 1997,
and shall remain in effect until September 30, 2001, at which time recreational vehicle
disputes shall be subject to the provisions of ss. 681.109 and 681.1095. The Attorney
General shall report annually to the President of the Senate, the Speaker of the House
of Representatives, the Minority Leader of each house of the Legislature, and
appropriate legislative committees regarding the efficiency and cost-effectiveness of
the pilot program.
(2) Each manufacturer of a recreational vehicle involved in a dispute that is
determined eligible under this chapter, including chassis and component manufacturers
which separately warrant the chassis and components and which otherwise meet the
definition of manufacturer set forth in s. 681.102(14), shall participate in a mediation
and arbitration program that is deemed qualified by the department.
(3) In order to be deemed qualified by the department, the mediation and
arbitration program must, at a minimum, meet the following requirements:
(a) The program must be administered by an administrator and staff that is
sufficiently insulated from the manufacturer to ensure impartial mediation and
arbitration services.
(b) Program administration fees must be paid by the manufacturer and no such
fees shall be charged to a consumer.
(c) The program must be adequately staffed at a level sufficient to ensure
the provision of fair and expeditious dispute resolution services.
(d) Program mediators and arbitrators must be sufficiently insulated from a
manufacturer to ensure the provision of impartial mediation and arbitration of
disputes.
(e) Program mediators and arbitrators shall not be employed by a
manufacturer or a motor vehicle dealer.
(f) Program mediators must complete a Florida Supreme Court certified
circuit or county mediation training program, or other mediation training program
approved by the department, in addition to a minimum of one-half day of training on
this chapter conducted by the department.
(g) Program mediators must comply with the Model Standards of Conduct for
Mediators issued by the American Arbitration Association, the Dispute Resolution
Section of the American Bar Association, and the Society of Professionals in Dispute
Resolution.
(h) Program arbitrators must complete a Florida Supreme Court certified
circuit or county arbitration program, or other arbitration training program approved
by the department, in addition to a minimum of 1 day of training in the application of
this chapter and any rules adopted thereunder conducted by the department.
(i) Program arbitrators must comply with the Code of Ethics for Arbitrators
in Commercial Disputes published by the American Arbitration Association and the
American Bar Association in 1977 and as amended.
(j) Program arbitrators must construe and apply the provisions of this
chapter and rules adopted thereunder in making decisions.
(k) The program must complete all mediation and arbitration of an eligible
consumer claim within 70 days of the program administrator's receipt of the claim from
the department. Failure of the program to complete all proceedings within the
prescribed period will not invalidate any settlement agreement or arbitration
decision.
(l) Mediation conferences and arbitration proceedings must be held at
reasonably convenient locations within the state so as to enable a consumer to attend
and present a dispute orally.
(4) The department shall monitor the program for compliance with this chapter.
If the program is determined not qualified or if qualification is revoked, then the
involved manufacturer shall be required to submit to arbitration conducted by the board
if such arbitration is requested by a consumer and the dispute is deemed eligible for
arbitration by the division pursuant to s. 681.109.
(5) If a program is determined not qualified or if qualification is revoked,
the involved manufacturer shall be notified by the department of any deficiencies in the
program and informed that it is entitled to a hearing pursuant to chapter 120.
(6) The program administrator, mediators, and arbitrators are exempt from
civil liability arising from any act or omission in connection with any mediation or
arbitration conducted under this chapter.
(7) The program administrator shall maintain records of each dispute submitted
to the program, including the recordings of arbitration hearings. All records maintained
by the program under this chapter shall be public records and shall be available for
inspection by the department upon reasonable notice. The records for disputes closed as
of September 30 of each year shall be turned over to the department by the program
administrator by no later than October 30 of the same year, unless a later date is
specified by the department.
(8) The department shall have the authority to adopt reasonable rules to carry
out the provisions of this section.
681.1097 RV Pilot Mediation and Arbitration Program.
Dispute eligibility and program function.
(1) Before filing a civil action on a matter subject to s. 681.104, a consumer
who acquires a recreational vehicle must first submit the dispute to the department, and
to the program if the dispute is deemed eligible. Such consumer is not required to
resort to a procedure certified pursuant to s. 681.108, notwithstanding that one of the
manufacturers of the recreational vehicle has such a procedure. Such consumer is not
required to resort to arbitration conducted by the board, except as provided in s.
681.1096(4) and in this section.
(2) A consumer acquiring a recreational vehicle must apply to participate in
this program with respect to a claim arising during the Lemon Law rights period by
filing the application in subsection (3) with the department no later than 60 days after
the expiration of the Lemon Law rights period.
(3) The consumer's application for participation in the program must be on a
form prescribed or approved by the department. The department shall screen all
applications to participate in the program to determine eligibility. The department
shall forward to the program administrator all applications the department determines
are potentially entitled to relief under this chapter.
(a) If the department determines the application lacks sufficient
information from which a determination of eligibility can be made, the department
shall request additional information from the consumer and, upon review of such
additional information, shall determine whether the application is eligible or reject
the application as incomplete.
(b) The department shall reject any application it determines to be
fraudulent or outside the scope of this chapter.
(c) The consumer and the manufacturer shall be notified in writing by the
department if an application is rejected. Such notification of rejection shall include
a brief explanation as to the reason for the rejection.
(d) If the department rejects a dispute, the consumer may file a lawsuit to
enforce the remedies provided under this chapter. In any civil action arising under
this chapter and relating to the matter considered by the department, any
determination made to reject a dispute is admissible in evidence.
(4) Mediation shall be mandatory for both the consumer and manufacturer,
unless the dispute is settled prior to the scheduled mediation conference. The mediation
conference shall be confidential and inadmissible in any subsequent adversarial
proceedings. Participation shall be limited to the parties directly involved in the
dispute and their attorneys, if any. All manufacturers shall be represented by persons
with settlement authority.
(a) Upon receipt of an eligible application from the department, the program
administrator shall notify the consumer and all involved manufacturers in writing that
an eligible application has been received. Such notification shall include a statement
that a mediation conference will be scheduled, shall identify the assigned mediator,
and provide information regarding the program's procedures. The program administrator
shall provide all involved manufacturers with a copy of the completed application.
(b) The mediator shall be selected and assigned by the program
administrator. The parties may factually object to a mediator based upon the
mediator's past or present relationship with a party or a party's attorney, direct or
indirect, whether financial, professional, social, or of any other kind. The program
administrator shall consider any such objection, determine its validity, and notify
the parties of any determination. If the objection is determined valid, the program
administrator shall assign another mediator to the case.
(c) At the mediation conference, the mediator shall assist the parties'
efforts to reach a mutually acceptable settlement of their dispute; however, the
mediator shall not impose any settlement upon the parties.
(d) Upon conclusion of the mediation conference, the mediator shall notify
the program administrator that the case has settled or remains at an impasse. The
program administrator shall notify the department in writing of the outcome of the
mediation.
(e) If the mediation conference ends in an impasse, it shall proceed to
arbitration pursuant to subsection (5). The program administrator shall immediately
notify the parties in writing that the dispute will proceed to arbitration and shall
identify the assigned arbitrator.
(f) If the parties enter into a settlement at any time after the dispute has
been submitted to the program, such settlement must be reduced to writing, signed by
the consumer and all involved manufacturers, and filed with the program administrator.
The program administrator shall send a copy to the department. All settlements must
contain, at a minimum, the following information:
- Name and address of the consumer.
- Name and address of each involved manufacturer.
- Year, make, model, and vehicle identification number of the subject recreational
vehicle.
- Name and address of the dealership from which the recreational vehicle was
acquired.
- Date the claim was received by the program administrator.
- Name of the mediator and/or arbitrator, if any.
- Statement of the terms of the agreement, including, but not limited to: whether
the vehicle is to be reacquired by a manufacturer and the identity of the
manufacturer that will reacquire the vehicle; the amount of any moneys to be paid
by the consumer and/or a manufacturer; the year, make, and model of any
replacement motor vehicle or motor vehicle accepted by the consumer as a
trade-assist; and a time certain for performance not to exceed 40 days from the
date the settlement agreement is signed by the parties.
(g) If a manufacturer fails to perform within the time required in any
settlement agreement, the consumer must notify the program administrator of such
failure in writing within 10 days of the required performance date. Within 10 days of
receipt of such notice, the program administrator shall notify the department of the
manufacturer's failure in compliance and shall schedule the matter for an arbitration
hearing pursuant to subsection (5).
(5) If the mediation ends in an impasse, or if a manufacturer fails to comply
with the settlement entered into between the parties, the program administrator shall
schedule the dispute for an arbitration hearing. Arbitration proceedings shall be open
to the public on reasonable and nondiscriminatory terms.
(a) The arbitration hearing shall be conducted by a single arbitrator
assigned by the program administrator. The arbitrator shall not be the same person as
the mediator who conducted the prior mediation conference in the dispute. The parties
may factually object to an arbitrator based on the arbitrator's past or present
relationship with a party or a party's attorney, direct or indirect, whether
financial, professional, social, or of any other kind. The program administrator shall
consider any such objection, determine its validity, and notify the parties of any
determination. If the objection is determined valid, the program administrator shall
assign another arbitrator to the case.
(b) The arbitrator may issue subpoenas for the attendance of witnesses and
for the production of records, documents, and other evidence. Subpoenas so issued
shall be served and, upon application to the court by a party to the arbitration,
enforced in the manner provided by law for the service and enforcement of subpoenas in
civil actions. Fees for attendance as a witness shall be the same as for a witness in
the circuit court.
(c) At all program arbitration proceedings, the parties may present oral and
written testimony, present witnesses and evidence relevant to the dispute,
cross-examine witnesses, and be represented by counsel. The arbitrator shall record
the arbitration hearing and shall have the power to administer oaths. The arbitrator
may inspect the vehicle if requested by a party or if the arbitrator considers such
inspection appropriate.
(d) The program arbitrator may continue a hearing on his or her own motion
or upon the request of a party for good cause shown. A request for continuance by the
consumer constitutes a waiver of the time period set forth in s. 681.1096(3)(k) for
completion of all proceedings under the program.
(e) Where the arbitration is the result of a manufacturer's failure to
perform in accordance with a mediation agreement, any relief to the consumer granted
by the arbitration will be no less than the relief agreed to by the manufacturer in
the settlement agreement.
(f) The arbitrator shall grant relief if a reasonable number of attempts
have been undertaken to correct a nonconformity or nonconformities.
(g) The program arbitrator shall render a decision within 10 days of the
closing of the hearing. The decision shall be in writing on a form prescribed or
approved by the department. The program administrator shall send a copy of the
decision to the consumer and each involved manufacturer by registered mail. The
program administrator shall also send a copy of the decision to the department within
5 days of mailing to the parties.
(h) A manufacturer shall comply with an arbitration decision within 40 days
of the date the manufacturer receives the written decision. Compliance occurs on the
date the consumer receives delivery of an acceptable replacement motor vehicle or the
refund specified in the arbitration award. If a manufacturer fails to comply within
the time required, the consumer must notify the program administrator in writing
within 10 days. The program administrator shall notify the department of a
manufacturer's failure to comply. The department shall have the authority to enforce
compliance with arbitration decisions under this section in the same manner as is
provided for enforcement of compliance with board decisions under s. 681.1095(10). In
any civil action arising under this chapter and relating to a dispute arbitrated
pursuant to this section, the decision of the arbitrator is admissible in evidence.
(6) Except as otherwise provided, all provisions in this section pertaining to
mandatory mediation and arbitration, eligibility screening, mediation proceedings,
arbitration hearings and decisions, and any appeals thereof are exempt from the
provisions of chapter 120.
(7) Either party may make application to the circuit court for the county in
which one of the parties resides or has a place of business or, if neither party resides
or has a place of business in this state, the county where the arbitration hearing was
held, for an order confirming, vacating, modifying, or correcting any award, in
accordance with the provisions of this section and ss. 682.12, 682.13, 682.14, 682.15,
and 682.17. Such application must be filed within 30 days of the moving party's receipt
of the written decision or the decision becomes final. Upon filing such application, the
moving party shall mail a copy to the department and, upon entry of any judgment or
decree, shall mail a copy of such judgment or decree to the department. A review of such
application by the circuit court shall be confined to the record of the proceedings
before the program arbitrator. The court shall conduct a de novo review of the questions
of law raised in the application. In addition to the grounds set forth in ss. 682.13 and
682.14, the court shall consider questions of fact raised in the application. In
reviewing questions of fact, the court shall uphold the award unless it determines that
the factual findings of the arbitrator are not supported by substantial evidence in the
record and that the substantial rights of the moving party have been prejudiced. If the
arbitrator fails to state findings or reasons for the stated award, or the findings or
reasons are inadequate, the court shall search the record to determine whether a basis
exists to uphold the award. The court shall expedite consideration of any application
filed under this section on the calendar.
(a) If a decision of a program arbitrator in favor of a consumer is
confirmed by the court, recovery by the consumer shall include the pecuniary value of
the award, attorney's fees incurred in obtaining confirmation of the award, and all
costs and continuing damages in the amount of $25 per day for each day beyond the
40-day period following a manufacturer's receipt of the arbitrator's decision. If a
court determines the manufacturer acted in bad faith in bringing the appeal or brought
the appeal solely for the purpose of harassment, or in complete absence of a
justiciable issue of law or fact, the court shall double, and may triple, the amount
of the total award.
(b) An appeal of a judgment or order by the court confirming, denying
confirmation, modifying or correcting, or vacating the award may be taken in the
manner and to the same extent as from orders or judgments in a civil action.
(8) The department shall have the authority to adopt reasonable rules to carry
out the provisions of this section.
681.110 Compliance and disciplinary actions.
The Department of Legal Affairs may enforce and ensure compliance with the provisions
of this chapter and rules adopted thereunder, may issue subpoenas requiring the attendance
of witnesses and production of evidence, and may seek relief in the circuit court to
compel compliance with such subpoenas. The Department of Legal Affairs may impose a civil
penalty against a manufacturer not to exceed $1,000 for each count or separate offense.
The proceeds from the fine imposed herein shall be placed in the Motor Vehicle Warranty
Trust Fund in the Department of Legal Affairs for implementation and enforcement of this
chapter.
681.111 Unfair or deceptive trade practice.
A violation by a manufacturer of this chapter is an unfair or deceptive trade practice
as defined in part II of chapter 501.
681.112 Consumer remedies.
(1) A consumer may file an action to recover damages caused by a violation of
this chapter. The court shall award a consumer who prevails in such action the amount of
any pecuniary loss, litigation costs, reasonable attorney's fees, and appropriate
equitable relief.
(2) An action brought under this chapter must be commenced within 1 year after
the expiration of the Lemon Law rights period, or, if a consumer resorts to an informal
dispute-settlement procedure or submits a dispute to the division or board, within 1
year after the final action of the procedure, division, or board.
(3) This chapter does not prohibit a consumer from pursuing other rights or
remedies under any other law.
681.113 Dealer liability.
Except as provided in ss. 681.103(3) and 681.114(2), nothing in this chapter imposes
any liability on a dealer as defined in s. 320.60(11)(a) or creates a cause of action by a
consumer against a dealer, except for written express warranties made by the dealer apart
from the manufacturer's warranties. A dealer may not be made a party defendant in any
action involving or relating to this chapter, except as provided in this section. The
manufacturer shall not charge back or require reimbursement by the dealer for any costs,
including, but not limited to, any refunds or vehicle replacements, incurred by the
manufacturer arising out of this chapter, in the absence of evidence that the related
repairs had been carried out by the dealer in a manner substantially inconsistent with the
manufacturer's published instructions.
681.114 Resale of returned vehicles.
(1) A manufacturer who accepts the return of a motor vehicle by reason of a
settlement, determination, or decision pursuant to this chapter shall notify the
department and report the vehicle identification number of that motor vehicle within 10
days after such acceptance, transfer, or disposal of the vehicle, whichever occurs
later.
(2) A person shall not knowingly lease, sell at wholesale or retail, or
transfer a title to a motor vehicle returned by reason of a settlement, determination,
or decision pursuant to this chapter or similar statute of another state unless the
nature of the nonconformity is clearly and conspicuously disclosed to the prospective
transferee, lessee, or buyer, and the manufacturer warrants to correct such
nonconformity for a term of 1 year or 12,000 miles, whichever occurs first. The
Department of Legal Affairs shall prescribe by rule the form, content, and procedure
pertaining to such disclosure statement.
(3) As used in this section, the term "settlement" means an
agreement entered into between a manufacturer and consumer that occurs after a dispute
is submitted to a procedure or program or is approved for arbitration before the board.
681.115 Certain agreements void.
Any agreement entered into by a consumer that waives, limits, or disclaims the rights
set forth in this chapter is void as contrary to public policy. The rights set forth in
this chapter shall extend to a subsequent transferee of such motor vehicle.
681.116 Preemption.
This chapter preempts any similar county or municipal ordinance regarding consumer
warranty rights resulting from the acquisition of a motor vehicle in this state.
681.117 Fee.
(1) A $2 fee shall be collected by a motor vehicle dealer, or by a person
engaged in the business of leasing motor vehicles, from the consumer at the consummation
of the sale of a motor vehicle or at the time of entry into a lease agreement for a
motor vehicle. Such fees shall be remitted to the county tax collector or private tag
agency acting as agent for the Department of Revenue. All fees, less the cost of
administration, shall be transferred monthly to the Department of Legal Affairs for
deposit into the Motor Vehicle Warranty Trust Fund. The Department of Legal Affairs
shall distribute monthly an amount not exceeding one-fourth of the fees received to the
Division of Consumer Services of the Department of Agriculture and Consumer Services to
carry out the provisions of ss. 681.108 and 681.109. The Department of Legal Affairs
shall contract with the Division of Consumer Services for payment of services performed
by the division pursuant to ss. 681.108 and 681.109.
(2) The Department of Revenue shall administer, collect, and enforce the fee
authorized under this section pursuant to the provisions of chapter 212. The fee shall
not be included in the computation of estimated taxes pursuant to s. 212.11(1)(a), nor
shall the dealer's credit provided under s. 212.12 apply to the fee. The provisions of
chapter 212 regarding the authority to audit and make assessments, the keeping of books
and records, and interest and penalties on delinquent fees apply to the fee imposed by
this section.
681.118 Rulemaking authority.
The Department of Legal Affairs shall adopt rules pursuant to ss. 120.536(1) and 120.54
to implement the provisions of this chapter.
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