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Current Status Bill Number:View additional legislative information at the LPITS web site.1044 Type of Legislation:General Bill GB Introducing Body:Senate Introduced Date:20000118 Primary Sponsor:Land All Sponsors:Land, Drummond, Moore, Leventis, Leatherman, Martin, Peeler, Setzler, Alexander, Elliott, Washington, Waldrep, Matthews, Mescher, Russell, O'Dell, Reese, Bauer, Rankin, Saleeby, Bryan, Hayes, Passailaigue, Courtney, McGill, Fair, Wilson, Giese, Ravenel, Short, Anderson, Grooms, Branton, Hutto Drafted Document Number:l:\council\bills\pt\1761mm00.doc Companion Bill Number:4450 Residing Body:Senate Subject:Motor vehicle dealerships, manufacturer not to own or operate; dealers, wholesalers, claims for compensation History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ ------ 20000223 Scrivener's error corrected Senate 20000222 Committee report: Favorable with 15 ST amendment Senate 20000217 Co-Sponsor added by Senator Anderson Grooms Branton Hutto Senate 20000126 Co-Sponsor added by Senator Short Senate 20000118 Introduced, read first time, 15 ST referred to Committee Versions of This Bill Revised on February 22, 2000 - Word format Revised on February 23, 2000 - Word format Revised on February 23, 2000-A - Word format
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
February 22, 2000
S. 1044
Introduced by Senators Land, Drummond, Moore, Leventis, Leatherman, Martin, Peeler, Setzler, Alexander, Elliott, Washington, Waldrep, Matthews, Mescher, Russell, O'Dell, Reese, Bauer, Rankin, Saleeby, Bryan, Hayes, Passailaigue, Courtney, McGill, Fair, Wilson, Giese, Ravenel, Short, Anderson, Grooms, Branton and Hutto
S. Printed 2/23/00--S.
Read the first time January 18, 2000.
To whom was referred a Bill (S. 1044), to amend Chapter 15, Title 56, Code of Laws of South Carolina, 1976, relating to regulation of motor vehicle manufacturers, distributors, and dealers, by adding Section 56-15-45, etc., respectfully
That they have duly and carefully considered the same, and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting clause and inserting:
/ SECTION 1. The General Assembly finds that the distribution of motor vehicles in the State of South Carolina vitally affects the general economy of the State and its public interest and public welfare. In the exercise of its police power, it is necessary for the State to regulate motor vehicle manufacturers, distributors, dealers, and their representatives doing business in South Carolina to prevent frauds and other abuses upon its citizens.
SECTION 2. Chapter 15, Title 56 of the 1976 Code is amended by adding:
"Section 56-15-45. (A) It is unlawful for a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to own, operate, or control or to participate in the ownership, operation, or control of a new motor vehicle dealer in this State, to establish in this State an additional dealer or dealership in which that person or entity has an interest, or to own, operate, or control, directly or indirectly, an interest in a dealer or dealership in this State. This subsection does not prohibit the ownership, operation, or control of a new motor vehicle dealer by a manufacturer or franchisor:
(1) for a temporary period, not to exceed one year, during the transition from one owner or operator to another;
(2) during a period in which the new motor vehicle dealer is being sold pursuant to a bona fide contract, shareholder agreement, or purchase option to the operator of the dealership; or
(3) at the same location at which the manufacturer or franchisor has been engaged in the retail sale of new motor vehicles as the owner, operator, or controller of the dealership for a continuous two-year period of time immediately before January 1, 2000, where there is no prospective new motor vehicle dealer available to own or operate the dealership in a manner consistent with the public interest.
(B)(1) It is unlawful for a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to compete unfairly with a new motor vehicle dealer of the same line make operating pursuant to a franchise in the State of South Carolina. Except as otherwise provided in this subsection, the mere ownership, operation, or control of a new motor vehicle dealer by a manufacturer or franchisor pursuant to the conditions set forth in subsection (A) of this section is not a violation of this subsection.
(2) For purposes of this subsection, a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor is conclusively presumed to be competing unfairly if it gives preferential treatment to a dealer or dealership in which an interest is directly or indirectly owned, operated, or controlled by the manufacturer or franchisor or any partner, affiliate, wholly or partially owned subsidiary, officer, or representative of the manufacturer or franchisor, expressly including, but not limited to, preferential treatment regarding the direct or indirect cost of vehicles or parts, the availability or allocation of vehicles or parts, the availability or allocation of special or program vehicles, the provision of service and service support, the availability of or participation in special programs, the administration of warranty policy, the availability or allocation of factory rebates, or the availability and use of after warranty adjustments, advertising, floor planning, or financing or financing programs.
(C) It is unlawful for a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to own a facility that engages primarily in the repair of motor vehicles, except motor homes, if the repairs are performed pursuant to the terms of a franchise or other agreement or the repairs are performed as part of a manufacturer's or franchisor's warranty. Nothing in this subsection prohibits a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor from owning a facility to perform warranty or other repairs on motor vehicles owned and operated by the manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor.
(D) Except as may be provided otherwise in subsections (A) and (B) of this section, a manufacturer or franchisor may not sell, directly or indirectly, a motor vehicle to a consumer in this State, except through a new motor vehicle dealer holding a franchise for the line make that includes the motor vehicle. This subsection does not apply to manufacturer or franchisor sales of new motor vehicles to the federal government, nor to manufacturer or franchisor leases of new motor vehicles to employees of the manufacturer or franchisor. Nothing in this subsection prohibits a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor operating as a motor vehicle lessor from selling a motor vehicle to the lessee at the conclusion of a lease agreement between the two parties.
Section 56-15-46. (A) A franchisor that intends to establish a new dealership or to relocate a current dealership for a particular line-make motor vehicle within a ten-mile radius of an existing dealership of the same line-make motor vehicle shall give written notice of that intent by certified mail to the existing dealership. The notice must include the:
(1) specific location of the additional or relocated dealership;
(2) date of commencement of operation of the additional or relocated dealership at the new location;
(3) identities of all existing dealerships located in the market area of the new or relocated dealership; and
(4) names and addresses of the dealer and principals in the new or relocated dealership.
(B) If a franchisor intends to establish a new dealership or to relocate a current dealership within a ten-mile radius of an existing dealership, then that existing dealership may petition the court, within sixty days of the receipt of the notice, to enjoin or prohibit the establishment of the new or relocated dealership within a ten-mile radius of the existing dealership. The court shall enjoin or prohibit the establishment of the new or relocated dealership within a ten-mile radius of the protesting dealership unless the franchisor shows by a preponderance of the evidence that the existing dealership is not providing adequate representation of the line-make motor vehicle and that the new or relocated dealership is necessary to provide the public with reliable and convenient sales and service within that area. The burden of proof in establishing adequate representation is on the franchisor. In determining if the existing dealership is providing adequate representation and if the new or relocated dealership is necessary, the court may consider, but is not limited to considering:
(1) the impact the establishment of the new or relocated dealership will have on consumers, the public interest, and the protesting dealership, except that financial impact may be considered only with respect to the protesting dealership;
(2) the size and permanency of investment reasonably made and the reasonable obligations incurred by the protesting dealership to perform its obligation pursuant to the dealership's franchise agreement;
(3) the reasonably expected market penetration of the line-make motor vehicle, after consideration of all factors which may affect the penetration including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, and other factors affecting sales to consumers;
(4) actions by the franchisor in denying its existing dealership of the same line make the opportunity for reasonable growth, market expansion, or relocation, including the availability of line-make motor vehicles in keeping with reasonable expectations of the franchisor in providing an adequate number of dealerships;
(5) attempts by the franchisor to coerce the protesting dealership into consenting to an additional or relocated dealership of the same line make within a ten-mile radius of the protesting dealership;
(6) distance, travel time, traffic patterns, and accessibility between the protesting dealership of the same line make and the location of the proposed new or relocated dealership;
(7) the likelihood of benefits to consumers from the establishment or relocation of the dealership, which benefits may not be obtained by other geographic or demographic changes or other expected changes within a ten-mile radius of the protesting dealership;
(8) if the protesting dealership is in substantial compliance with its franchise agreement;
(9) if there is adequate interbrand and intrabrand competition with respect to the line-make motor vehicles, including the adequacy of sales and service facilities;
(10) if the establishment or relocation of the proposed dealership appears to be warranted and justified based on economic and market conditions pertinent to dealerships competing within a ten-mile radius of the protesting dealership, including anticipated changes; and
(11) the volume of registrations and service business transacted by the protesting dealership.
(C) This section does not apply to the:
(1) addition of a new dealership at a location that is within a three-mile radius of a former dealership of the same line make and that has been closed for less than two years;
(2) relocation of an existing dealership to a new location that is further away from the protesting dealer's location than the relocated dealer's previous location; or
(3) relocation of an existing dealership to a new location that is within a three-mile radius of the dealership's current location, when it has been at the current location at least ten years."
SECTION 3. Section 56-15-60 of the 1976 Code is amended to read:
"Section 56-15-60. (A) Every manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division shall must properly fulfill properly any a warranty agreement and compensate adequately and fairly compensate each of its motor vehicle dealers for labor and parts. All claims made by motor vehicle dealers hereunder pursuant to this section and under Section 56-15-50 for such labor and parts shall must be paid within thirty days following their approval. All such claims shall must be either approved or disapproved within thirty days after their receipt, and when any such claim is disapproved. the The motor vehicle dealer who submits a disapproved claim it shall must be notified in writing of its disapproval within such that period, and each such the notice shall must state the specific grounds upon which the disapproval is based. Any special handling of claims required by the manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, and but not uniformly required of all dealers of that make, may be enforced only after thirty days' notice in writing and upon of good and sufficient reason.
(B) An audit for sales incentives, service incentives, rebates, or other forms of incentive compensation may include only the twelve-month period immediately following the date of the termination of the incentive compensation program. This limitation is not effective in the case of fraudulent claims.
(C) It is unlawful to deny, delay payment for, or restrict a claim by a dealer for payment or reimbursement for warranty service or parts, incentives, hold-backs, or other amounts owed to the dealer unless the denial, delay, or restriction is the direct result of a material defect in the claim which affects its validity."
SECTION 4. Chapter 15, Title 56 of the 1976 Code is amended by adding:
"Section 56-15-85. This chapter does not prohibit a dealership located in this State from contracting with an on-line electronic service to provide motor vehicles to consumers in this State."
SECTION 5. Chapter 15, Title 56 of the 1976 Code is amended by adding:
"Section 56-15-140. In an action brought pursuant to this article, venue is in the State of South Carolina. A provision of a franchise or other agreement with contrary provisions is void and unenforceable."
SECTION 6. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
JOHN C. LAND, III, for Committee.
EXPLANATION OF IMPACT:
The Judicial Department states that there is not enough information available to estimate the number of cases that would come before the court should this bill become law. If the number of cases exceeds what their current pool of circuit court judges can absorb, additional judges would be needed. The cost associated with one additional judge and staff (administrative assistant, court reporter and law clerk) is approximately $303,593 for personal services and associated operating expenses and $26,620 of non-recurring cost for automation and furniture. The addition of new judges would also require more courtroom space, an expense borne by county government.
SPECIAL NOTES:
Currently, the state of South Carolina has 325 "new car" dealerships. (Information provided by the SC Association of Automobile Dealers.)
Approved By:
Les Boles
Office of State Budget
TO AMEND CHAPTER 15, TITLE 56, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO REGULATION OF MOTOR VEHICLE MANUFACTURERS, DISTRIBUTORS, AND DEALERS, BY ADDING SECTION 56-15-45 SO AS TO PROHIBIT OWNERSHIP, OPERATION, OR CONTROL OF COMPETING DEALERSHIPS BY A MANUFACTURER OR FRANCHISOR EXCEPT UNDER CERTAIN CIRCUMSTANCES, PROHIBIT UNFAIR COMPETITION BY A MANUFACTURER OR FRANCHISOR AGAINST A FRANCHISEE, DEFINE PREFERENTIAL TREATMENT GIVING RISE TO A PRESUMPTION OF UNFAIR COMPETITION, AND EXEMPT SALES BY MANUFACTURERS OR FRANCHISORS TO THEIR EMPLOYEES AND TO THE FEDERAL GOVERNMENT; BY ADDING SECTION 56-15-46 SO AS TO REQUIRE WRITTEN NOTICE TO A CURRENT DEALERSHIP OF THE INTENTION OF A FRANCHISOR TO RELOCATE AN EXISTING DEALERSHIP OR TO ESTABLISH A NEW DEALERSHIP IN THE SAME MARKET AREA, PROVIDE GROUNDS FOR INJUNCTION OF THAT ESTABLISHMENT OR RELOCATION, AND PROVIDE FOR EXCEPTIONS; TO AMEND SECTION 56-15-60, RELATING TO DEALERS' CLAIMS FOR COMPENSATION, SO AS TO LIMIT THE AUDIT PERIOD FOR INCENTIVE COMPENSATION PROGRAMS AND PROHIBIT THE DENIAL, DELAY, OR RESTRICTION OF A CLAIM PAYMENT UNLESS THE CLAIM IS MATERIALLY DEFECTIVE; AND BY ADDING SECTION 56-15-140 SO AS TO GRANT JURISDICTION FOR ACTIONS FILED PURSUANT TO THIS ACT TO THE COURT OF COMMON PLEAS OF THE COUNTY IN WHICH THE PLAINTIFF DEALERSHIP HAS ITS PRINCIPAL PLACE OF BUSINESS AND ESTABLISH RESIDENCE OF THE DEFENDANT ENTITIES IN THAT COUNTY FOR VENUE PURPOSES, NOTWITHSTANDING AN AGREEMENT TO THE CONTRARY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The General Assembly finds that the distribution of motor vehicles in the State of South Carolina vitally affects the general economy of the State and its public interest and public welfare. In the exercise of its police power, it is necessary for the State to regulate motor vehicle manufacturers, distributors, dealers, and their representatives doing business in South Carolina to prevent frauds and other abuses upon its citizens.
SECTION 2. Chapter 15, Title 56 of the 1976 Code is amended by adding:
"Section 56-15-45. (A) It is unlawful for a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to own, operate, or control or to participate in the ownership, operation, or control of a new motor vehicle dealer in this State, to establish in this State an additional dealer or dealership in which that person or entity has an interest, or to own, operate, or control, directly or indirectly, an interest in a dealer or dealership in this State. This subsection does not prohibit the ownership, operation, or control of a new motor vehicle dealer by a manufacturer or franchisor:
(1) for a temporary period, not to exceed one year, during the transition from one owner or operator to another;
(2) during a period in which the new motor vehicle dealer is being sold pursuant to a bona fide contract, shareholder agreement, or purchase option to the operator of the dealership; or
(3) at the same location at which the manufacturer or franchisor has been engaged in the retail sale of new motor vehicles as the owner, operator, or controller of the dealership for a continuous two-year period of time immediately before January 1, 2000, where there is no prospective new motor vehicle dealer available to own or operate the dealership in a manner consistent with the public interest.
(B)(1) It is unlawful for a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to compete unfairly with a new motor vehicle dealer of the same line make operating pursuant to a franchise in the State of South Carolina. Except as otherwise provided in this subsection, the mere ownership, operation, or control of a new motor vehicle dealer by a manufacturer or franchisor pursuant to the conditions set forth in subsection (A) of this section is not a violation of this subsection.
(2) For purposes of this subsection, a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor is conclusively presumed to be competing unfairly if it gives preferential treatment to a dealer or dealership in which an interest is directly or indirectly owned, operated, or controlled by the manufacturer or franchisor or any partner, affiliate, wholly or partially owned subsidiary, officer, or representative of the manufacturer or franchisor, expressly including, but not limited to, preferential treatment regarding the direct or indirect cost of vehicles or parts, the availability or allocation of vehicles or parts, the availability or allocation of special or program vehicles, the provision of service and service support, the availability of or participation in special programs, the administration of warranty policy, the availability or allocation of factory rebates, or the availability and use of after warranty adjustments, advertising, floor planning, or financing or financing programs.
(C) It is unlawful for a manufacturer or franchisor or any parent, affiliate, wholly or partially owned subsidiary, officer, or representative of a manufacturer or franchisor to own a facility that engages primarily in the repair of motor vehicles, except motor homes, if the repairs are performed pursuant to the terms of a franchise or other agreement or the repairs are performed as part of a manufacturer's or franchisor's warranty. Nothing in this subsection prohibits a manufacturer or franchisor from operating a facility to perform repairs on motor vehicles owned and operated by the manufacturer or franchisor.
(D) Except as may be provided otherwise in subsections (A) and (B) of this section, a manufacturer or franchisor may not offer to sell or sell, directly or indirectly, a motor vehicle to a consumer in this State, except through a new motor vehicle dealer holding a franchise for the line make that includes the motor vehicle. This subsection does not apply to manufacturer or franchisor sales of new motor vehicles to the federal government, nor to manufacturer or franchisor leases of new motor vehicles to employees of the manufacturer or franchisor.
Section 56-15-46. (A) A franchisor that intends to establish a new dealership or to relocate a current dealership for a particular line-make motor vehicle within a ten-mile relevant market area of an existing dealership of the same-line make motor vehicle shall give written notice of that intent by certified mail to the existing dealership. The notice must include the:
(1) specific location of the additional or relocated dealership;
(2) date of commencement of operation of the additional or relocated dealership at the new location;
(3) identities of all existing dealerships located in the market area of the new or relocated dealership; and
(4) names and addresses of the dealer and principals in the new or relocated dealership.
(B) An existing dealership located in the market area in which a franchisor intends to establish a new dealership or to relocate a current dealership may petition the court, within sixty days of the receipt of the notice, to enjoin or prohibit the establishment of the new or relocated dealership within the relevant market area of the existing dealership. The court shall enjoin or prohibit the establishment of the new or relocated dealership within the relevant market area of the existing dealership unless the franchisor shows by a preponderance of the evidence that the existing dealership is not providing adequate representation of the line-make motor vehicle in the existing dealership's relevant market area and that the new or relocated dealership is necessary to provide the public with reliable and convenient sales and service within that area. The burden of proof in establishing adequate representation is on the franchisor. In determining if the existing dealership is providing adequate representation and if the new or relocated dealership is necessary, the court may consider, but is not limited to considering:
(1) the impact the establishment of the new or relocated dealership will have on consumers, the public interest, and the existing dealership, except that financial impact may be considered only with respect to the existing dealership;
(2) the size and permanency of investment reasonably made and the reasonable obligations incurred by the existing dealership to perform its obligation pursuant to the dealership's franchise agreement;
(3) the reasonably expected market penetration of the line-make motor vehicle for the relevant market area, after consideration of all factors which may affect the penetration including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, and other factors affecting sales to consumers in the relevant market area;
(4) actions by the franchisor in denying its existing dealership of the same line make the opportunity for reasonable growth, market expansion, or relocation, including the availability of line-make motor vehicles in keeping with reasonable expectations of the franchisor in providing an adequate number of dealerships in the relevant market area;
(5) attempts by the franchisor to coerce the existing dealership into consenting to an additional or relocated dealership of the same line make in the relevant market area;
(6) distance, travel time, traffic patterns, and accessibility between the existing dealership of the same line make and the location of the proposed new or relocated dealership;
(7) the likelihood of benefits to consumers from the establishment or relocation of the dealership, which benefits may not be obtained by other geographic or demographic changes or other expected changes in the relevant market area;
(8) if the existing dealership is in substantial compliance with its franchise agreement;
(9) if there is adequate interbrand and intrabrand competition with respect to the line-make motor vehicles, including the adequacy of sales and service facilities;
(10) if the establishment or relocation of the proposed dealership appears to be warranted and justified based on economic and market conditions pertinent to dealerships competing in the relevant market area, including anticipated changes; and
(11) the volume of registrations and service business transacted by the existing dealership in the relevant market area of the proposed dealership.
(C) This section does not apply to the:
(1) addition of a new dealership at a location that is within a three-mile radius of a former dealership of the same line make and that has been closed for less than two years;
(2) relocation of an existing dealership to a new location that is further away from the protesting dealer's location than the relocated dealer's previous location; or
(3) relocation of an existing dealership to a new location that is within a three-mile radius of the dealership's current location, when it has been at the current location at least ten years."
SECTION 2. Section 56-15-60 of the 1976 Code is amended to read:
"Section 56-15-60. (A) Every manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division shall must properly fulfill properly any a warranty agreement and compensate adequately and fairly compensate each of its motor vehicle dealers for labor and parts. All claims made by motor vehicle dealers hereunder pursuant to this section and under Section 56-15-50 for such labor and parts shall must be paid within thirty days following their approval. All such claims shall must be either approved or disapproved within thirty days after their receipt, and when any such claim is disapproved. the The motor vehicle dealer who submits a disapproved claim it shall must be notified in writing of its disapproval within such that period, and each such the notice shall must state the specific grounds upon which the disapproval is based. Any special handling of claims required by the manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, and but not uniformly required of all dealers of that make, may be enforced only after thirty days' notice in writing and upon of good and sufficient reason.
(B) An audit for sales incentives, service incentives, rebates, or other forms of incentive compensation may include only the twelve-month period immediately following the date of the termination of the incentive compensation program. This limitation is not effective in the case of fraudulent claims.
(C) It is unlawful to deny, delay payment for, or restrict a claim by a dealer for payment or reimbursement for warranty service or parts, incentives, hold-backs, or other amounts owed to the dealer unless the denial, delay, or restriction is the direct result of a material defect in the claim which affects its validity."
SECTION 3. Chapter 15, Title 56 of the 1976 Code is amended by adding:
"Section 56-15-140. The court of common pleas of the county in which the dealership has its principal place of business has exclusive jurisdiction over an action brought by a dealership for a violation of this article, notwithstanding any provisions of Title 15. A manufacturer or distributor or its subsidiaries made a party to such action is deemed to reside in that county for venue purposes. A provision of a franchise or other agreement with contrary provisions is void and unenforceable."
SECTION 4. This act takes effect upon approval by the Governor.
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