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) “Incidental charges” means those reasonable costs to the consumer which are directly caused by the nonconformity of the motor vehicle.
(8) “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.
(9) “Lemon Law rights period” means the period ending 24 months after the date of the original delivery of a motor vehicle to a consumer.
(10) “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.
(11) “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.
(12) “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.
(13) “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, or a distributor or an importer as those terms are defined in s. 320.60. A dealer as defined in s. 320.60 may not be deemed to be a manufacturer, a distributor, or an importer as provided in this section.
(14) “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, electric bicycles, 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.
(15) “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.
(16) “Procedure” means an informal dispute-settlement procedure established by a manufacturer to mediate and arbitrate motor vehicle warranty disputes.
(17) “Program” means the mediation and arbitration pilot program for recreational vehicles established in this chapter.
(18) “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.
(19) “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 base selling or sale price of the vehicle as reflected on the purchase invoice, exclusive of taxes, government fees, and dealer fees, or in the case of a lease, the agreed upon value as reflected in the lease agreement and divided by 120,000, except in the case of a recreational vehicle, in which event it shall be divided by 60,000.
(20) “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.
(21) “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.
(22) “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 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 and shall contain a toll-free number for the department which 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, 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.
(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.
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.
(1) If a manufacturer has established a procedure that the department has certified as substantially complying with the provisions of 16 C.F.R. part 703, in effect October 1, 1983, as amended, 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, as amended; the provisions of this chapter; and any other equitable considerations appropriate under the circumstances. Decisionmakers and staff for a procedure shall be trained in the provisions of this chapter and in 16 C.F.R. part 703, in effect October 1, 1983, as amended. 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 department for certification of its procedure. After receipt and evaluation of the application, the department shall:
(a) Notify the manufacturer of any deficiencies in the application or the procedure;
(b) Certify the procedure as substantially complying with the provisions of 16 C.F.R. part 703, in effect October 1, 1983, as amended, and with the provisions of this chapter and rules adopted under this chapter, for a period not to exceed 1 year; or
(c) Deny certification, stating the reasons for such denial.
(3) A certified procedure or a procedure of an applicant seeking certification shall submit to the department 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 department a copy of the annual audit required under the provisions of 16 C.F.R. part 703, in effect October 1, 1983, as amended, 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 department shall review each certified procedure at least annually to determine if certification should be renewed. A manufacturer seeking renewal of certification shall notify the department in writing at least 60 days before the end of the 1-year certification period. Upon review, the department shall:
(a) Renew certification for a period not to exceed 1 year if the procedure is found to substantially comply with the provisions of 16 C.F.R. part 703, in effect October 1, 1983, as amended, and with the provisions of this chapter and rules adopted under this chapter;
(b) Notify the manufacturer of any deficiencies in the procedure; or
(c) Decline to renew certification. If certification is declined, the department shall state the reasons for such action.
(6) If a manufacturer ceases operation of a certified procedure, the manufacturer shall notify the department immediately in writing, and upon receipt of such notification, the department shall revoke certification for that procedure, effective the date the certified procedure ceased.
(7) A manufacturer whose certification is declined is entitled to a hearing pursuant to chapter 120.
(8) If federal preemption of state authority to regulate procedures occurs, the provisions of subsection (1) concerning prior resort do not apply.
(9) The department may adopt rules to administer this section.
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 after filing, the consumer may apply to the department 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 department 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 does not have a certified procedure or if the certified procedure does not have jurisdiction to resolve the dispute, a consumer may apply directly to the department 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 department 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 department shall forward to the board all disputes that the department determines are potentially entitled to relief under this chapter.
(6) The department may reject a dispute that it determines to be fraudulent or outside the scope of the board’s authority. Any dispute deemed by the department to be ineligible for arbitration by the board due to insufficient evidence may be reconsidered upon the submission of new information regarding the dispute. The department after a second review, may reject a dispute if the evidence is clearly insufficient to qualify for relief. If the department rejects a dispute, it must provide notice of the rejection and a brief explanation of the reason for rejection to the consumer and to the manufacturer.
(7) 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 a matter considered by the department, any determination made to reject a dispute is admissible in evidence.
(8) The department may adopt rules to administer this section.
681.1095 Florida New Motor Vehicle Arbitration Board; creation and function.—
(1) There is established within the department, 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 that occurs while acting in the member’s official capacity. The department 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 board shall hear cases in various locations throughout the state so that any consumer whose dispute is approved for arbitration by the department 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 region of the board by the department. At least one member of the board in each region must have expertise in motor vehicle mechanics. A member may 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. Members of the board shall be compensated at a rate prescribed by the Attorney General and are entitled to reimbursement for per diem and travel expenses pursuant to s. 112.061.
(4) Before filing a civil action on a matter subject to s. 681.104, the consumer must first submit the dispute to the department, 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 department 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, 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 any method providing a delivery confirmation 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) This section and s. 681.109 pertaining to compulsory arbitration before the board, the dispute eligibility screening by the department, the proceedings and decisions of the board, and any appeals thereof, are exempt from 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 15 days after final disposition of the appeal, the appealing party shall furnish the department with a copy of the settlement or 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.
(17) The department may adopt rules to administer this section.
681.1096 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.
(2) Each manufacturer of a recreational vehicle involved in a dispute that is determined eligible under this chapter, including chassis and component manufacturers that separately warrant the chassis and components and that otherwise meet the definition of manufacturer set forth in s. 681.102(13), 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 are sufficiently insulated from the manufacturer to ensure impartial mediation and arbitration services and to ensure that a manufacturer does not make decisions as to whether a consumer’s dispute proceeds to mediation or arbitration.
(b) Program administration fees must be timely paid by the manufacturer, and no such fees shall be charged to a consumer.
(c) The program must be competently and adequately funded and 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.
(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.
(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) The program must ensure that the mediators and arbitrators are sufficiently trained in the program rules and procedures and in the provisions of this chapter at least every other year and as a precondition to serving in the program. The program shall monitor the performance of the mediators and arbitrators to ensure that they are performing competently and impartially and are complying with all program rules and procedures and the provisions of this chapter.
(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 a consumer. Failure of the program to complete all proceedings within the prescribed period will not invalidate any settlement agreement or arbitration decision. The program shall gather all documents from the parties to a dispute that are necessary to a full consideration of the dispute, including, but not limited to, a statement of the respective complaints, positions, and desired resolution by the consumer and each manufacturer. Copies of documents submitted to the program shall be provided to all parties involved in the dispute, the assigned mediator, and the assigned arbitrator.
(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 disputes shall be subject to the provisions of ss. 681.109 and 681.1095. If the program is determined not qualified or if qualification is revoked as to a manufacturer, all those manufacturers potentially involved in the eligible consumer dispute 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 department pursuant to s. 681.109. A consumer having a dispute involving one or more manufacturers for which the program has been determined not qualified, or for which qualification has been revoked, is not required to submit the dispute to the program irrespective of whether the program may be qualified as to some of the manufacturers potentially involved in the dispute.
(5) A program failing to meet the requirements of this section, s. 681.1097, and the rules adopted thereunder by the department may not be qualified by the department. The department may revoke the qualification of a program for failure to maintain compliance with the requirements of this section, s. 681.1097, and the rules adopted thereunder by the department. The department may revoke the qualification of a program as to one or more participating manufacturers for conduct to be specified by the department by rule pursuant to ss. 120.536(1) and 120.54.
(6) If a program is determined not qualified or if qualification is revoked, or if program qualification is revoked as to a particular manufacturer, the program administrator and the involved manufacturer, if any, shall be notified by the department of any deficiencies in the program or, in the case of a manufacturer, notified of the manufacturer’s conduct in violation of this chapter or the rules adopted thereunder by the department, shall be given an opportunity to correct such deficiencies, except as set forth by the department by rule, and shall be informed that it is entitled to a hearing pursuant to chapter 120.
(7) 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.
(8) The program administrator shall maintain records of each dispute submitted to the program, including the recordings of arbitration hearings. Such records shall be maintained in a manner separate from other unrelated records of the program. 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 program shall retain all records for each dispute for at least 5 years after the final disposition of the dispute. The program shall furnish the department with copies of all settlement agreements and decisions within 30 days after the date of such settlements and decisions.
(9) The program shall provide the department with quarterly and annual reports containing such information as the department shall by rule prescribe.
(10) The department shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this section.
681.1097 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 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 program no later than 60 days after the expiration of the Lemon Law rights period. The claim is considered filed when the application is date-stamped as received by the program.
(3) The consumer’s application for participation in the program must be on a form prescribed by the program. The program administrator shall screen all applications to participate in the program to determine eligibility.
(a) The consumer and the manufacturer shall be notified in writing by the program administrator if an application is rejected. Such notification of rejection shall include a brief explanation as to the reason for the rejection.
(b) If the program administrator 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 program, 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. The parties may, by agreement, consent to expand the scope of a mediation conference to attempt to resolve warranty claims by the consumer which may not be covered under this chapter, if such claims were reported by the consumer to the manufacturer or its authorized service agent during the term of the manufacturer’s express warranty.
(a) Upon determination that an application is eligible, 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 and obtain from each manufacturer a written response to the allegations contained in the application along with copies of any documents in support of such response. The written response shall be on a form and submitted in the manner prescribed by the program.
(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.
(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 legible writing, signed by the consumer and all involved manufacturers, and filed with the program administrator. 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 or arbitrator, if any.
7. A complete 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 or a manufacturer; the year, make, and model of any replacement motor vehicle or motor vehicle accepted by the consumer as a trade-assist; the date, time, location, and nature of any agreed-upon repair or replacement of a component part or accessory and an estimate as to the anticipated length of time for such repair or replacement; 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 30 days of the required performance date. Within 10 days of receipt of such notice, the program administrator shall determine whether the dispute is eligible to proceed to arbitration and shall schedule the matter for an arbitration hearing pursuant to subsection (5). If the program administrator determines the dispute is not eligible for arbitration, the dispute shall be rejected pursuant to subsection (3).
(5) 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 technical rules of evidence as are applicable to civil court proceedings do not apply to arbitrations conducted by the program. 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. The parties may, by mutual written agreement, consent to expand the scope of the arbitration hearing to permit consideration by the arbitrator of warranty claims by the consumer that may not be covered under this chapter, provided such claims were first reported by the consumer to the manufacturer or its authorized service agent during the term of the manufacturer’s express warranty.
(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) The arbitrator 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 and the provisions of this chapter.
(f) The program arbitrator shall render a decision within 10 days of the closing of the hearing. The decision shall be in legible writing on a form prescribed by the program. The program administrator shall send a copy of the decision to the consumer and each involved manufacturer by registered mail.
(g) 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 the relief specified in the arbitration award.
(h) If a manufacturer fails to comply within the time required, and no appeal has been filed, the consumer shall notify the program administrator of such failure in writing within 30 days. The program administrator shall notify the department of a manufacturer’s failure to comply. A consumer may apply to a court of competent jurisdiction in this state for entry of an order confirming the award. Such application shall be by motion filed within 40 days after the manufacturer’s failure to comply and shall be heard in the manner and upon notice provided by law or rule of court for the making and hearing of motions. Such application shall be served in the manner provided by law for the service of a civil summons. The consumer shall send a copy of the application for confirmation of the award and any order entered by the court confirming the award to the program administrator.
(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) In any civil action arising under this chapter relating to a dispute arbitrated pursuant to this section, the decision of the arbitrator is admissible in evidence.
(9) The department shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this section.
681.110 Compliance and disciplinary actions.—The department 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 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 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.
(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 department or board, within 1 year after the final action of the procedure, department, 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 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.
(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 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, 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.
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.
(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 for deposit into the Motor Vehicle Warranty Trust Fund.
(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.
Court: Fla. | Date Filed: 2024-09-05T00:00:00-07:00
Snippet: Determine Incapacity), 5.649 (Guardian Advocate), and 5.681
(Restoration of Rights of Person with Developmental…person lacks decisionmaking ability.
Rule 5.681 is amended to require that a suggestion of
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RULE 5.681. RESTORATION OF RIGHTS OF PERSON WITH
Court: Fla. Dist. Ct. App. | Date Filed: 2024-04-24T00:00:00-07:00
Snippet: alteration in original) (quoting Sinkfield v. State, 681 So. 2d 838, 838
(Fla. 4th DCA 1996)). The failure… not constitute a valid oral waiver); Sinkfield, 681 So. 2d at 839
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