FLORIDA LEMON LAW:
Florida Lemon Law
Title XXXIX, Chapter 681
681.10 Short title.-- This chapter shall be known and may be cited as the "Motor
Vehicle Warranty Enforcement Act."
History.--s. 1, ch. 83-69; s. 1, ch. 85-240; s. 19, ch. 88-95; s. 4, ch. 91-429.
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.
History.--s. 2, ch. 83-69; s. 1, ch. 84-55; ss. 1, 19, ch. 88-95; s. 4, ch.
91-429; s. 1, ch. 97-245.
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(2), 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.
History.--s. 3, ch. 83-69; s. 2, ch. 84-55; s. 2, ch. 85-240; s. 1, ch. 86-229;
ss. 2, 19, ch. 88-95; s. 4, ch. 91-429; s. 2, ch. 92-88; s. 2, ch. 97-245; s. 2,
ch. 98-128; s. 21, ch. 99-164.
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 nameplate manufacturer of a recreational vehicle
shall, at the time of vehicle acquisition, inform the consumer clearly and
conspicuously in writing how and where to file a claim with a program pursuant
to s. 681.1096. 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.
History.--s. 4, ch. 83-69; s. 40, ch. 85-62; s. 3, ch. 85-240; ss. 3, 19, ch.
88-95; s. 4, ch. 91-429; s. 3, ch. 92-88; s. 3, ch. 97-245; s. 1, ch. 2002-71;
s. 20, ch. 2002-235.
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, lienholder, 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 lienholder 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, lienholder, 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, lienholder, 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.
History.--s. 5, ch. 83-69; s. 3, ch. 84-55; s. 41, ch. 85-62; s. 4, ch. 85-240;
s. 2, ch. 86-229; ss. 4, 19, ch. 88-95; s. 4, ch. 91-429; s. 4, ch. 92-88; s. 4,
ch. 97-245.
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.
History.--s. 6, ch. 83-69; s. 19, ch. 88-95; s. 4, ch. 91-429.
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 decisionmakers 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 warranty; the rights and
remedies conferred under 16 C.F.R. part 703, in effect October 1, 1983; the
provisions of this chapter; and any other equitable considerations appropriate
under the circumstances. Decisionmakers and staff of a procedure shall be
trained in the provisions of this chapter and in 16 C.F.R. part 703, in effect
October 1, 1983. In an action brought by a consumer concerning an alleged
nonconformity, the decision that results from a certified procedure is
admissible in evidence.
(2) A manufacturer may apply to the division for certification of its procedure.
After receipt and evaluation of the application, the division shall certify the
procedure or notify the manufacturer of any deficiencies in the application or
the procedure.
(3) A certified procedure or a procedure of an applicant seeking certification
shall submit to the division a copy of each settlement approved by the procedure
or decision made by a decisionmaker within 30 days after the settlement is
reached or the decision is rendered. The decision or settlement must contain at
a minimum the:
(a) Name and address of the consumer;
(b) Name of the manufacturer and address of the dealership from which the motor
vehicle was purchased;
(c) Date the claim was received and the location of the procedure office that
handled the claim;
(d) Relief requested by the consumer;
(e) Name of each decisionmaker rendering the decision or person approving the
settlement;
(f) Statement of the terms of the settlement or decision;
(g) Date of the settlement or decision; and
(h) Statement of whether the decision was accepted or rejected by the consumer.
(4) Any manufacturer establishing or applying to establish a certified procedure
must file with the division a copy of the annual audit required under the
provisions of 16 C.F.R. part 703, in effect October 1, 1983, together with any
additional information required for purposes of certification, including the
number of refunds and replacements made in this state pursuant to the provisions
of this chapter by the manufacturer during the period audited.
(5) The division shall review each certified procedure at least annually,
prepare an annual report evaluating the operation of certified procedures
established by motor vehicle manufacturers and procedures of applicants seeking
certification, and, for a period not to exceed 1 year, shall grant certification
to, or renew certification for, those manufacturers whose procedures
substantially comply with the provisions of 16 C.F.R. part 703, in effect
October 1, 1983, and with the provisions of this chapter and rules adopted under
this chapter. If certification is revoked or denied, the division shall state
the reasons for such action. The reports and records of actions taken with
respect to certification shall be public records.
(6) A manufacturer whose certification is denied or revoked is entitled to a
hearing pursuant to chapter 120.
(7) If federal preemption of state authority to regulate procedures occurs, the
provisions of subsection (1) concerning prior resort do not apply.
(8) The division shall adopt rules to implement this section.
History.--s. 7, ch. 83-69; s. 4, ch. 84-55; s. 5, ch. 85-240; ss. 5, 19, ch.
88-95; s. 17, ch. 91-110; s. 4, ch. 91-429; s. 5, ch. 92-88.
681.109 Florida New Motor Vehicle Arbitration Board; dispute eligibility.--
(1) 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 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.
History.--ss. 6, 19, ch. 88-95; s. 4, ch. 91-429; s. 6, ch. 92-88; s. 5, ch.
97-245.
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 decisionmaker, 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.
History.--ss. 7, 19, ch. 88-95; s. 18, ch. 91-110; s. 4, ch. 91-429; s. 7, ch.
92-88; s. 55, ch.95-211; s. 6, ch. 97-245.
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, 2006, at which time
recreational vehicle disputes shall be subject to the provisions of ss. 681.109
and 681.1095. The Attorney General shall report 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
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.
History.--s. 7, ch. 97-245; s. 33, ch. 2001-196; s. 2, ch. 2002-71; s. 21, ch.
2002-235.
681.1097 Pilot RV 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. (e) The
department may delegate responsibility for the screening of claims to the
program, in which event claims filed with the department shall be forwarded to
the program administrator and the provisions of this section shall apply to
claims screened by the program.
(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, 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:
1. Name and address of the consumer.
2. Name and address of each involved manufacturer.
3. Year, make, model, and vehicle identification number of the subject
recreational vehicle.
4. Name and address of the dealership from which the recreational vehicle was
acquired.
5. Date the claim was received by the program administrator.
6. Name of the mediator and/or arbitrator, if any.
7. 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 settlement 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.
(i) Either party may request that the program arbitrator make a technical
correction to the decision by filing a written request with the program
administrator within 10 days after receipt of the written decision. Technical
corrections shall be limited to computational errors, correction of a party's
name or information regarding the recreational vehicle, and typographical or
spelling errors. Technical correction of a decision shall not toll the time for
filing an appeal or for manufacturer compliance.
(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) A decision of the arbitrator is binding unless appealed by either party by
filing a petition with the circuit court within the time and in the manner
prescribed by s. 681.1095(10) and (12). Section 681.1095(13) and (14) apply to
appeals filed under this section. 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.
(8) The department shall have the authority to adopt reasonable rules to carry
out the provisions of this section.
History.--s. 8, ch. 97-245; s. 34, ch. 2001-196; s. 3, ch. 2002-71; s. 22, ch.
2002-235.
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.
History.--s. 6, ch. 85-240; ss. 8, 19, ch. 88-95; s. 4, ch. 91-429.
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.
History.--s. 7, ch. 85-240; ss. 9, 19, ch. 88-95; s. 4, ch. 91-429.
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.
History.--ss. 10, 19, ch. 88-95; s. 4, ch. 91-429.
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.
History.--ss. 11, 19, ch. 88-95; s. 4, ch. 91-429; s. 9, ch. 97-245.
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.
History.--ss. 12, 19, ch. 88-95; s. 4, ch. 91-429; s. 8, ch. 92-88; s. 10, ch.
97-245.
681.115 Certain agreements void.-- Any agreement entered into by a consumer that
waives, limits, or disclaims the rights set forth in this chapter, or that
requires a consumer not to disclose the terms of such agreement as a condition
thereof, is void as contrary to public policy. The rights set forth in this
chapter shall extend to a subsequent transferee of such motor vehicle.
History.--ss. 13, 19, ch. 88-95; s. 4, ch. 91-429; s. 9, ch. 92-88; s. 35, ch.
2001-196.
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.
History.--ss. 14, 19, ch. 88-95; s. 4, ch. 91-429.
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.
If the purchaser or lessee removes the motor vehicle from the state for titling
and registration outside this state, the fee shall be remitted to 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.
History.--s. 16, ch. 88-95; s. 22, ch. 90-203; s. 14, ch. 97-99; s. 54, ch.
2002-218.
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.
History.--s. 15, ch. 88-95; s. 219, ch. 98-200.
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