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To amend sections 4517.01, 4517.52, 4517.54, 4517.55, | 1 |
and 4517.59 and to enact sections 4517.541 and | 2 |
4517.542 of the Revised Code relative to the | 3 |
termination of franchises and prohibited acts | 4 |
under the Motor Vehicle Dealers Law. | 5 |
Section 1. That sections 4517.01, 4517.52, 4517.54, 4517.55, | 6 |
and 4517.59 be amended and sections 4517.541 and 4517.542 of the | 7 |
Revised Code be enacted to read as follows: | 8 |
Sec. 4517.01. As used in sections 4517.01 to 4517.65 of the | 9 |
Revised Code: | 10 |
(A) "Persons" includes individuals, firms, partnerships, | 11 |
associations, joint stock companies, corporations, and any | 12 |
combinations of individuals. | 13 |
(B) "Motor vehicle" means motor vehicle as defined in section | 14 |
4501.01 of the Revised Code and also includes "all-purpose | 15 |
vehicle" and "off-highway motorcycle" as those terms are defined | 16 |
in section 4519.01 of the Revised Code. "Motor vehicle" does not | 17 |
include a snowmobile as defined in section 4519.01 of the Revised | 18 |
Code or manufactured and mobile homes. | 19 |
(C) "New motor vehicle" means a motor vehicle, the legal | 20 |
title to which has never been transferred by a manufacturer, | 21 |
remanufacturer, distributor, or dealer to an ultimate purchaser. | 22 |
(D) "Ultimate purchaser" means, with respect to any new motor | 23 |
vehicle, the first person, other than a dealer purchasing in the | 24 |
capacity of a dealer, who in good faith purchases such new motor | 25 |
vehicle for purposes other than resale. | 26 |
(E) "Business" includes any activities engaged in by any | 27 |
person for the object of gain, benefit, or advantage either direct | 28 |
or indirect. | 29 |
(F) "Engaging in business" means commencing, conducting, or | 30 |
continuing in business, or liquidating a business when the | 31 |
liquidator thereof holds self out to be conducting such business; | 32 |
making a casual sale or otherwise making transfers in the ordinary | 33 |
course of business when the transfers are made in connection with | 34 |
the disposition of all or substantially all of the transferor's | 35 |
assets is not engaging in business. | 36 |
(G) "Retail sale" or "sale at retail" means the act or | 37 |
attempted act of selling, bartering, exchanging, or otherwise | 38 |
disposing of a motor vehicle to an ultimate purchaser for use as a | 39 |
consumer. | 40 |
(H) "Retail installment contract" includes any contract in | 41 |
the form of a note, chattel mortgage, conditional sales contract, | 42 |
lease, agreement, or other instrument payable in one or more | 43 |
installments over a period of time and arising out of the retail | 44 |
sale of a motor vehicle. | 45 |
(I) "Farm machinery" means all machines and tools used in the | 46 |
production, harvesting, and care of farm products. | 47 |
(J) "Dealer" or "motor vehicle dealer" means any new motor | 48 |
vehicle dealer, any motor vehicle leasing dealer, and any used | 49 |
motor vehicle dealer. | 50 |
(K) "New motor vehicle dealer" means any person engaged in | 51 |
the business of selling at retail, displaying, offering for sale, | 52 |
or dealing in new motor vehicles pursuant to a contract or | 53 |
agreement entered into with the manufacturer, remanufacturer, or | 54 |
distributor of the motor vehicles. | 55 |
(L) "Used motor vehicle dealer" means any person engaged in | 56 |
the business of selling, displaying, offering for sale, or dealing | 57 |
in used motor vehicles, at retail or wholesale, but does not mean | 58 |
any new motor vehicle dealer selling, displaying, offering for | 59 |
sale, or dealing in used motor vehicles incidentally to engaging | 60 |
in the business of selling, displaying, offering for sale, or | 61 |
dealing in new motor vehicles, any person engaged in the business | 62 |
of dismantling, salvaging, or rebuilding motor vehicles by means | 63 |
of using used parts, or any public officer performing official | 64 |
duties. | 65 |
(M) "Motor vehicle leasing dealer" means any person engaged | 66 |
in the business of regularly making available, offering to make | 67 |
available, or arranging for another person to use a motor vehicle | 68 |
pursuant to a bailment, lease, sublease, or other contractual | 69 |
arrangement under which a charge is made for its use at a periodic | 70 |
rate for a term of thirty days or more, and title to the motor | 71 |
vehicle is in and remains in the motor vehicle leasing dealer who | 72 |
originally leases it, irrespective of whether or not the motor | 73 |
vehicle is the subject of a later sublease, and not in the user, | 74 |
but does not mean a manufacturer or its affiliate leasing to its | 75 |
employees or to dealers. | 76 |
(N) "Salesperson" means any person employed by a dealer or | 77 |
manufactured home broker to sell, display, and offer for sale, or | 78 |
deal in motor vehicles for a commission, compensation, or other | 79 |
valuable consideration, but does not mean any public officer | 80 |
performing official duties. | 81 |
(O) "Casual sale" means any transfer of a motor vehicle by a | 82 |
person other than a new motor vehicle dealer, used motor vehicle | 83 |
dealer, motor vehicle salvage dealer, as defined in division (A) | 84 |
of section 4738.01 of the Revised Code, salesperson, motor vehicle | 85 |
auction owner, manufacturer, or distributor acting in the capacity | 86 |
of a dealer, salesperson, auction owner, manufacturer, or | 87 |
distributor, to a person who purchases the motor vehicle for use | 88 |
as a consumer. | 89 |
(P) "Motor vehicle show" means a display of current models of | 90 |
motor vehicles whereby the primary purpose is the exhibition of | 91 |
competitive makes and models in order to provide the general | 92 |
public the opportunity to review and inspect various makes and | 93 |
models of motor vehicles at a single location. | 94 |
(Q) "Motor vehicle auction owner" means any person who is | 95 |
engaged wholly or in part in the business of auctioning motor | 96 |
vehicles. | 97 |
(R) "Manufacturer" means a person who manufactures, | 98 |
assembles, or imports motor vehicles, including motor homes, but | 99 |
does not mean a person who only assembles or installs a body, | 100 |
special equipment unit, finishing trim, or accessories on a motor | 101 |
vehicle chassis supplied by a manufacturer or distributor. | 102 |
(S) "Tent-type fold-out camping trailer" means any vehicle | 103 |
intended to be used, when stationary, as a temporary shelter with | 104 |
living and sleeping facilities, and that is subject to the | 105 |
following properties and limitations: | 106 |
(1) A minimum of twenty-five per cent of the fold-out portion | 107 |
of the top and sidewalls combined must be constructed of canvas, | 108 |
vinyl, or other fabric, and form an integral part of the shelter. | 109 |
(2) When folded, the unit must not exceed: | 110 |
(a) Fifteen feet in length, exclusive of bumper and tongue; | 111 |
(b) Sixty inches in height from the point of contact with the | 112 |
ground; | 113 |
(c) Eight feet in width; | 114 |
(d) One ton gross weight at time of sale. | 115 |
(T) "Distributor" means any person authorized by a motor | 116 |
vehicle manufacturer to distribute new motor vehicles to licensed | 117 |
new motor vehicle dealers, but does not mean a person who only | 118 |
assembles or installs a body, special equipment unit, finishing | 119 |
trim, or accessories on a motor vehicle chassis supplied by a | 120 |
manufacturer or distributor. | 121 |
(U) "Flea market" means a market place, other than a dealer's | 122 |
location licensed under this chapter, where a space or location is | 123 |
provided for a fee or compensation to a seller to exhibit and | 124 |
offer for sale or trade, motor vehicles to the general public. | 125 |
(V) "Franchise" means any written agreement, contract, or | 126 |
understanding between any motor vehicle manufacturer or | 127 |
remanufacturer engaged in commerce and any motor vehicle dealer | 128 |
that purports to fix the legal rights and liabilities of the | 129 |
parties to such agreement, contract, or understanding. | 130 |
(W) "Franchisee" means a person who receives new motor | 131 |
vehicles from the franchisor under a franchise agreement and who | 132 |
offers, sells, and provides service for such new motor vehicles to | 133 |
the general public. | 134 |
(X) "Franchisor" means a new motor vehicle manufacturer, | 135 |
remanufacturer, or distributor who supplies new motor vehicles | 136 |
under a franchise agreement to a franchisee. | 137 |
(Y) "Dealer organization" means a state or local trade | 138 |
association the membership of which is comprised predominantly of | 139 |
new motor vehicle dealers. | 140 |
(Z) "Factory representative" means a representative employed | 141 |
by a manufacturer, remanufacturer, or by a factory branch | 142 |
primarily for the purpose of promoting the sale of its motor | 143 |
vehicles, parts, or accessories to dealers or for supervising or | 144 |
contacting its dealers or prospective dealers. | 145 |
(AA) "Administrative or executive management" means those | 146 |
individuals who are not subject to federal wage and hour laws. | 147 |
(BB) "Good faith" means honesty in the conduct or transaction | 148 |
concerned and the observance of reasonable commercial standards of | 149 |
fair dealing in the trade as is defined in division (S) of section | 150 |
1301.01 of the Revised Code, including, but not limited to, the | 151 |
duty to act in a fair and equitable manner so as to guarantee | 152 |
freedom from coercion, intimidation, or threats of coercion or | 153 |
intimidation; provided however, that recommendation, endorsement, | 154 |
exposition, persuasion, urging, or argument shall not be | 155 |
considered to constitute a lack of good faith. | 156 |
(CC) "Coerce" means to compel or attempt to compel by failing | 157 |
to act in good faith or by threat of economic harm, breach of | 158 |
contract, or other adverse consequences. Coerce does not mean to | 159 |
argue, urge, recommend, or persuade. | 160 |
(DD) "Relevant market area" means any area within a radius of | 161 |
ten miles from the site of a potential new dealership, except that | 162 |
for manufactured home or recreational vehicle dealerships the | 163 |
radius shall be twenty-five miles. The ten-mile radius shall be | 164 |
measured from the dealer's established place of business that is | 165 |
used exclusively for the purpose of selling, displaying, offering | 166 |
for sale, or dealing in motor vehicles. | 167 |
(EE) "Wholesale" or "at wholesale" means the act or attempted | 168 |
act of selling, bartering, exchanging, or otherwise disposing of a | 169 |
motor vehicle to a transferee for the purpose of resale and not | 170 |
for ultimate consumption by that transferee. | 171 |
(FF) "Motor vehicle wholesaler" means any person licensed as | 172 |
a dealer under the laws of another state and engaged in the | 173 |
business of selling, displaying, or offering for sale used motor | 174 |
vehicles, at wholesale, but does not mean any motor vehicle dealer | 175 |
as defined in this section. | 176 |
(GG)(1) "Remanufacturer" means a person who assembles or | 177 |
installs passenger seating, walls, a roof elevation, or a body | 178 |
extension on a conversion van with the motor vehicle chassis | 179 |
supplied by a manufacturer or distributor, a person who modifies a | 180 |
truck chassis supplied by a manufacturer or distributor for use as | 181 |
a public safety or public service vehicle, a person who modifies a | 182 |
motor vehicle chassis supplied by a manufacturer or distributor | 183 |
for use as a limousine or hearse, or a person who modifies an | 184 |
incomplete motor vehicle cab and chassis supplied by a new motor | 185 |
vehicle dealer or distributor for use as a tow truck, but does not | 186 |
mean either of the following: | 187 |
(a) A person who assembles or installs passenger seating, a | 188 |
roof elevation, or a body extension on a recreational vehicle as | 189 |
defined in division (Q) and referred to in division (B) of section | 190 |
4501.01 of the Revised Code; | 191 |
(b) A person who assembles or installs special equipment or | 192 |
accessories for handicapped persons, as defined in section 4503.44 | 193 |
of the Revised Code, upon a motor vehicle chassis supplied by a | 194 |
manufacturer or distributor. | 195 |
(2) For the purposes of division (GG)(1) of this section, | 196 |
"public safety vehicle or public service vehicle" means a fire | 197 |
truck, ambulance, school bus, street sweeper, garbage packing | 198 |
truck, or cement mixer, or a mobile self-contained facility | 199 |
vehicle. | 200 |
(3) For the purposes of division (GG)(1) of this section, | 201 |
"limousine" means a motor vehicle, designed only for the purpose | 202 |
of carrying nine or fewer passengers, that a person modifies by | 203 |
cutting the original chassis, lengthening the wheelbase by forty | 204 |
inches or more, and reinforcing the chassis in such a way that all | 205 |
modifications comply with all applicable federal motor vehicle | 206 |
safety standards. No person shall qualify as or be deemed to be a | 207 |
remanufacturer who produces limousines unless the person has a | 208 |
written agreement with the manufacturer of the chassis the person | 209 |
utilizes to produce the limousines to complete properly the | 210 |
remanufacture of the chassis into limousines. | 211 |
(4) For the purposes of division (GG)(1) of this section, | 212 |
"hearse" means a motor vehicle, designed only for the purpose of | 213 |
transporting a single casket, that is equipped with a compartment | 214 |
designed specifically to carry a single casket that a person | 215 |
modifies by cutting the original chassis, lengthening the | 216 |
wheelbase by ten inches or more, and reinforcing the chassis in | 217 |
such a way that all modifications comply with all applicable | 218 |
federal motor vehicle safety standards. No person shall qualify as | 219 |
or be deemed to be a remanufacturer who produces hearses unless | 220 |
the person has a written agreement with the manufacturer of the | 221 |
chassis the person utilizes to produce the hearses to complete | 222 |
properly the remanufacture of the chassis into hearses. | 223 |
(5) For the purposes of division (GG)(1) of this section, | 224 |
"mobile self-contained facility vehicle" means a mobile classroom | 225 |
vehicle, mobile laboratory vehicle, bookmobile, bloodmobile, | 226 |
testing laboratory, and mobile display vehicle, each of which is | 227 |
designed for purposes other than for passenger transportation and | 228 |
other than the transportation or displacement of cargo, freight, | 229 |
materials, or merchandise. A vehicle is remanufactured into a | 230 |
mobile self-contained facility vehicle in part by the addition of | 231 |
insulation to the body shell, and installation of all of the | 232 |
following: a generator, electrical wiring, plumbing, holding | 233 |
tanks, doors, windows, cabinets, shelving, and heating, | 234 |
ventilating, and air conditioning systems. | 235 |
(6) For the purposes of division (GG)(1) of this section, | 236 |
"tow truck" means both of the following: | 237 |
(a) An incomplete cab and chassis that are purchased by a | 238 |
remanufacturer from a new motor vehicle dealer or distributor of | 239 |
the cab and chassis and on which the remanufacturer then installs | 240 |
in a permanent manner a wrecker body it purchases from a | 241 |
manufacturer or distributor of wrecker bodies, installs an | 242 |
emergency flashing light pylon and emergency lights upon the mast | 243 |
of the wrecker body or rooftop, and installs such other related | 244 |
accessories and equipment, including push bumpers, front grille | 245 |
guards with pads and other custom-ordered items such as painting, | 246 |
special lettering, and safety striping so as to create a complete | 247 |
motor vehicle capable of lifting and towing another motor vehicle. | 248 |
(b) An incomplete cab and chassis that are purchased by a | 249 |
remanufacturer from a new motor vehicle dealer or distributor of | 250 |
the cab and chassis and on which the remanufacturer then installs | 251 |
in a permanent manner a car carrier body it purchases from a | 252 |
manufacturer or distributor of car carrier bodies, installs an | 253 |
emergency flashing light pylon and emergency lights upon the | 254 |
rooftop, and installs such other related accessories and | 255 |
equipment, including push bumpers, front grille guards with pads | 256 |
and other custom-ordered items such as painting, special | 257 |
lettering, and safety striping. | 258 |
As used in division (GG)(6)(b) of this section, "car carrier | 259 |
body" means a mechanical or hydraulic apparatus capable of lifting | 260 |
and holding a motor vehicle on a flat level surface so that one or | 261 |
more motor vehicles can be transported, once the car carrier is | 262 |
permanently installed upon an incomplete cab and chassis. | 263 |
(HH) "Operating as a new motor vehicle dealership" means | 264 |
engaging in activities such as displaying, offering for sale, and | 265 |
selling new motor vehicles at retail, operating a service facility | 266 |
to perform repairs and maintenance on motor vehicles, offering for | 267 |
sale and selling motor vehicle parts at retail, and conducting all | 268 |
other acts that are usual and customary to the operation of a new | 269 |
motor vehicle dealership. For the purposes of this chapter only, | 270 |
possession of either a valid new motor vehicle dealer franchise | 271 |
agreement or a new motor vehicle dealers license, or both of these | 272 |
items, is not evidence that a person is operating as a new motor | 273 |
vehicle dealership. | 274 |
(II) "Outdoor power equipment" means garden and small utility | 275 |
tractors, walk-behind and riding mowers, chainsaws, and tillers. | 276 |
(JJ) "Remote service facility" means premises that are | 277 |
separate from a licensed new motor vehicle dealer's sales facility | 278 |
by not more than one mile and that are used by the dealer to | 279 |
perform repairs, warranty work, recall work, and maintenance on | 280 |
motor vehicles pursuant to a franchise agreement entered into with | 281 |
a manufacturer of motor vehicles. A remote service facility shall | 282 |
be deemed to be part of the franchise agreement and is subject to | 283 |
all the rights, duties, obligations, and requirements of Chapter | 284 |
4517. of the Revised Code that relate to the performance of motor | 285 |
vehicle repairs, warranty work, recall work, and maintenance work | 286 |
by new motor vehicle dealers. | 287 |
(KK) "Recreational vehicle" has the same meaning as in | 288 |
section 4501.01 of the Revised Code. | 289 |
Sec. 4517.52. (A) Each franchisor shall fulfill warranty and | 290 |
recall obligations of repairing and servicing motor vehicles, | 291 |
including all parts and components manufactured for installation | 292 |
in any motor vehicle. | 293 |
(B) Each franchisor shall compensate each of its franchisees | 294 |
for labor and parts used to fulfill warranty and recall | 295 |
obligations of repair and servicing at rates not less than the | 296 |
rates charged by the franchisee to its retail customers for like | 297 |
service and parts for nonwarranty work. | 298 |
(C) Division (A) of this section shall not apply to | 299 |
franchisors or franchisees who deal in recreational vehicles. | 300 |
Sec. 4517.54. (A) Notwithstanding the terms, provisions, or | 301 |
conditions of an existing franchise, no franchisor shall | 302 |
terminate, cancel, or fail to continue or renew a franchise except | 303 |
for good cause. This section governs any action or intent to | 304 |
terminate, cancel, discontinue, or not renew a franchise whether | 305 |
the franchise was entered into prior to or after the effective | 306 |
date of this amendment. | 307 |
(B) | 308 |
the Revised Code, each franchisor proposing to terminate, cancel, | 309 |
discontinue, or not renew a franchise shall send written notice by | 310 |
certified mail of the proposed action to the franchisee at such | 311 |
time as may be necessary to ensure that the notice is received no | 312 |
later than ninety days before the effective date of the proposed | 313 |
action, or no later than fifteen days before the effective date of | 314 |
the proposed action when the proposed action is based upon any of | 315 |
the following: | 316 |
(1) Insolvency of the franchisee, or filing of any petition | 317 |
by or against the franchisee under any bankruptcy or receivership | 318 |
law; | 319 |
(2) Any unlawful business practice after written warning | 320 |
thereof; | 321 |
(3) The franchisee has ceased business operations. | 322 |
Each notice shall set forth the specific grounds for the | 323 |
proposed termination, cancellation, or refusal to continue or | 324 |
renew. | 325 |
(C) Prior to the effective date of the proposed action, a | 326 |
franchisee receiving written notice from a franchisor proposing to | 327 |
terminate, cancel, discontinue, or not renew a franchise may file | 328 |
a protest with the board against the franchisor's proposed action. | 329 |
When such a protest has been filed, the board shall inform the | 330 |
franchisor that a timely protest has been filed and that a hearing | 331 |
is required pursuant to section 4517.57 of the Revised Code. | 332 |
(D) A franchisor shall not terminate, cancel, discontinue, or | 333 |
fail to renew a franchise before the holding of a hearing on any | 334 |
protest filed under this section, or after the hearing, if the | 335 |
board determines that good cause does not exist to terminate, | 336 |
cancel, discontinue, or not renew the franchise. | 337 |
Sec. 4517.541. (A) Each franchisor proposing to terminate, | 338 |
cancel, discontinue, or not renew a franchise based upon any of | 339 |
the following shall send written notice by certified mail of the | 340 |
proposed action to the franchisee at such time as may be necessary | 341 |
to ensure that the notice is received not later than twelve months | 342 |
before the effective date of the proposed action, unless | 343 |
prohibited by law or regulation: | 344 |
(1) As a result of any change in ownership, operation, or | 345 |
control of all or any part of the business of the manufacturer, | 346 |
factory branch, distributor, or distributor branch, whether by | 347 |
sale or transfer of assets, corporate stock or other equity | 348 |
interest, or by assignment, merger, consolidation, combination, | 349 |
joint venture, redemption, operation of law, or otherwise; | 350 |
(2) The termination, suspension, or cessation of a part or | 351 |
all of the business operations of the manufacturer, factory | 352 |
branch, distributor, or distributor branch; | 353 |
(3) Discontinuance of the sale of a line-make, series, brand | 354 |
or class of vehicles or a change in distribution system by the | 355 |
manufacturer, whether through a change in distributors or the | 356 |
manufacturer's decision to cease conducting business through a | 357 |
distributor altogether. | 358 |
(B) Each notice described in division (A) of this section | 359 |
shall set forth the specific grounds for the proposed termination, | 360 |
cancellation, or refusal to continue or renew a franchise. | 361 |
(C) This section shall not apply to franchisors or | 362 |
franchisees who deal in recreational vehicles. | 363 |
Sec. 4517.542. (A) Except as provided in division (A)(6)(c) | 364 |
of this section, upon the termination, cancellation, | 365 |
discontinuance, or nonrenewal of any franchise by the franchisor | 366 |
pursuant to section 4517.541 of the Revised Code, the manufacturer | 367 |
shall pay fair and reasonable compensation to the new motor | 368 |
vehicle dealer for at least the following: | 369 |
(1)(a) The franchisee's net acquisition cost for any new, | 370 |
undamaged, unaltered, and unsold vehicle in the franchisee's | 371 |
inventory of the current model year or the model year preceding | 372 |
the current model year, purchased from the franchisor or another | 373 |
franchisee of the same line-make in the ordinary course of | 374 |
business prior to receipt of a notice of termination, | 375 |
cancellation, discontinuance, or nonrenewal, provided the vehicle | 376 |
has less than five hundred miles registered on the odometer, | 377 |
including mileage incurred in delivery from the franchisor or in | 378 |
transporting the vehicle between new motor vehicle dealers for | 379 |
sale; | 380 |
(b) Notwithstanding division (A)(1)(a) of this section, a | 381 |
vehicle damaged prior to delivery to the franchisee by the | 382 |
manufacturer or its agent shall be eligible for repurchase in | 383 |
accordance with this section; | 384 |
(c) The franchisor shall pay the fair and reasonable | 385 |
compensation for the items described in division (A)(1) of this | 386 |
section, including the franchisee's costs of handling, packing, | 387 |
loading, and transporting an item for return to the franchisor, | 388 |
within thirty days after the effective date of the termination, | 389 |
cancellation, discontinuance, or nonrenewal so long as the | 390 |
franchisee can provide evidence of good and clear title upon | 391 |
return of the items to the franchisor. If there is a lien on the | 392 |
property, the franchisor may make payment jointly to the | 393 |
franchisee and any party having a security interest or ownership | 394 |
interest in the property. | 395 |
(2) The franchisee's net acquisition cost of each new, | 396 |
unused, undamaged, and unsold part or accessory purchased from the | 397 |
manufacturer or a source recommended or approved by the franchisor | 398 |
if the part or accessory is in the current parts catalog. In the | 399 |
case of sheet metal, a comparable substitute for the original | 400 |
package may be used. If the part or accessory was purchased by the | 401 |
franchisee from an outgoing authorized franchisee, the franchisor | 402 |
shall purchase the part or accessory at the depreciated value | 403 |
price or the price in the current parts catalog, whichever is | 404 |
less. | 405 |
(3) The franchisee's net acquisition cost of each undamaged | 406 |
sign if the sign bears a common name, trade name, or trademark of | 407 |
the manufacturer, the manufacturer required the new motor vehicle | 408 |
dealer to acquire the sign, and the sign was acquired by the new | 409 |
motor vehicle dealer from the manufacturer or a source approved by | 410 |
the manufacturer. A manufacturer shall purchase from the new motor | 411 |
vehicle dealer at fair market price poles or other hardware used | 412 |
to erect a sign if the manufacturer required the sign to be free | 413 |
standing and not include a trademark or trade name other than that | 414 |
of the manufacturer. For purposes of division (A)(3) of this | 415 |
section, fair market price is equal to the new motor vehicle | 416 |
dealer's original cost, reduced by one-tenth of the original cost | 417 |
for each year of ownership. | 418 |
(4) The franchisee's net acquisition cost of all equipment, | 419 |
special tools, automotive service equipment, and other items | 420 |
bearing the manufacturer's trademark that were required by the | 421 |
manufacturer or distributor, and purchased from the manufacturer | 422 |
or a source recommended or approved by the manufacturer. The net | 423 |
acquisition cost shall be reduced over a period of five years at a | 424 |
rate of twenty per cent per year. | 425 |
(5) The franchisor shall pay the fair and reasonable | 426 |
compensation for the items described in divisions (A)(2), (3), and | 427 |
(4) of this section, including the cost of handling, packing, | 428 |
loading, and transporting an item for return to the franchisor, | 429 |
within sixty days after the effective date of termination, | 430 |
cancellation, discontinuance, or nonrenewal, so long as the | 431 |
franchisee is able to provide evidence of good and clear title | 432 |
upon return of the items to the franchisor. The franchisor may | 433 |
make payment jointly to the franchisee and any party having a | 434 |
security interest or ownership interest in the property. | 435 |
(6)(a) Subject to division (A)(6)(b) of this section, fair | 436 |
market value of the franchise that is at least equivalent to the | 437 |
fair market value of the franchise on the day before the | 438 |
manufacturer announces the action that results in termination, | 439 |
cancellation, discontinuance, or nonrenewal. | 440 |
(b) If the termination, cancellation, discontinuance, or | 441 |
nonrenewal is due to a manufacturer's change in distributors, the | 442 |
manufacturer may avoid paying fair market value to the new motor | 443 |
vehicle dealer if the new distributor or the manufacturer offers | 444 |
the new motor vehicle dealer a franchise agreement with terms | 445 |
substantially similar to terms offered to other same line-make new | 446 |
motor vehicle dealers. | 447 |
(c) The manufacturer is only required to pay fair market | 448 |
value of the franchise if the termination, cancellation, | 449 |
discontinuance, or nonrenewal of the franchise agreement is the | 450 |
result of an action described in division (A) of section 4517.541 | 451 |
of the Revised Code. | 452 |
(B) In the event the franchisor does not pay the franchisee | 453 |
the amounts specified within the time required by this section for | 454 |
an involuntary termination, the manufacturer shall pay or | 455 |
reimburse the new motor vehicle dealer for any costs of storing, | 456 |
insuring, and floor planning any of the property described in this | 457 |
section from the effective date of termination, cancellation, | 458 |
discontinuance, or nonrenewal until the date the franchisee is | 459 |
paid and the property is transported, in addition to | 460 |
transportation charges associated with the manufacturer's | 461 |
repurchase obligations. The manufacturer shall not charge the new | 462 |
motor vehicle dealer any handling, restocking, or other similar | 463 |
costs or fees associated with items repurchased by the | 464 |
manufacturer under division (A) of this section. | 465 |
(C) Dealership facilities assistance shall be paid as | 466 |
follows: | 467 |
(1) If the new motor vehicle dealer is leasing the dealership | 468 |
facilities from the manufacturer or a subsidiary of the | 469 |
manufacturer, the manufacturer or subsidiary shall forgive any | 470 |
future lease obligations. | 471 |
(2) Subject to division (C)(4) of this section, if the new | 472 |
motor vehicle dealer is leasing the dealership facilities from a | 473 |
lessor other than the manufacturer, the manufacturer shall pay the | 474 |
new motor vehicle dealer a sum equivalent to the rent for the | 475 |
unexpired term of the lease or twelve months' rent, whichever is | 476 |
less. | 477 |
(3) Subject to division (C)(4) of this section, if the new | 478 |
motor vehicle dealer owns the dealership facilities, the | 479 |
manufacturer shall pay the new motor vehicle dealer a sum | 480 |
equivalent to the reasonable rental value of the dealership | 481 |
facilities for twelve months. | 482 |
(4) In order to be entitled to facilities assistance from the | 483 |
manufacturer as provided in divisions (C)(2) and (3) of this | 484 |
section, the new motor vehicle dealer shall mitigate damages by | 485 |
listing the dealership facilities for lease or sublease with a | 486 |
licensed real estate agent or retail industry broker within thirty | 487 |
days after the effective date of the termination, cancellation, | 488 |
discontinuance, or nonrenewal of the franchise and thereafter by | 489 |
reasonably cooperating with the real estate agent or retail | 490 |
industry broker in the performance of the agent's or broker's | 491 |
duties. If the new motor vehicle dealer is able to lease or | 492 |
sublease the dealership facilities, the new motor vehicle dealer | 493 |
shall pay the manufacturer the net revenue received from the | 494 |
mitigation up to the total amount of facilities assistance that | 495 |
the new motor vehicle dealer has received from the manufacturer | 496 |
pursuant to division (C)(2) or (3) of this section. | 497 |
(5) If the termination, cancellation, discontinuance, or | 498 |
nonrenewal relates to fewer than all of the franchises operated by | 499 |
the new motor vehicle dealer at a single location, the amount of | 500 |
facilities assistance that the manufacturer is required to pay the | 501 |
new motor vehicle dealer under division (C) of this section shall | 502 |
be based on the percentage of total square footage attributed to | 503 |
the line-make being terminated, canceled, discontinued, or not | 504 |
renewed. | 505 |
(6) The manufacturer shall pay the dealership facilities | 506 |
assistance under division (C) of this section within sixty days | 507 |
after the effective date of termination, cancellation, | 508 |
discontinuance, or nonrenewal. The franchisor may make payment | 509 |
jointly to the franchisee and any party having a security interest | 510 |
or ownership interest in the property. | 511 |
(7) The manufacturer is not required to pay dealership | 512 |
facilities assistance if the termination, cancellation, | 513 |
discontinuance, or nonrenewal of the franchise agreement is the | 514 |
result of insolvency of the franchisee or the filing of any | 515 |
petition by or against the franchisee under any bankruptcy or | 516 |
receivership law, is the result of any unlawful business practice | 517 |
after written warning thereof, is the result of the franchisee | 518 |
ceasing business operations, or is the result of the voluntary act | 519 |
of the new motor vehicle dealer. | 520 |
(D) This section and section 4517.541 of the Revised Code | 521 |
shall not apply to a termination, cancellation, discontinuance, or | 522 |
nonrenewal of a franchise that results from the sale of the assets | 523 |
or stock of the motor vehicle dealership from a franchisee to a | 524 |
franchisee or prospective franchisee. | 525 |
(E) This section shall not apply to any noncoerced voluntary | 526 |
termination. A franchisee that voluntarily terminates the | 527 |
franchise agreement remains eligible for any termination | 528 |
assistance provided for voluntary terminations in the franchisee's | 529 |
franchise agreement with the franchisor. | 530 |
(F) A franchise shall continue in full force and operation | 531 |
notwithstanding a change, in whole or in part, of an established | 532 |
plan of distribution or system of distribution of the motor | 533 |
vehicles offered for sale under the franchise. The appointment of | 534 |
a new manufacturer, factory branch, distributor, or distributor | 535 |
branch for motor vehicles offered for sale under the franchise | 536 |
agreement shall be considered to be a change of an established | 537 |
plan of distribution or system of distribution. | 538 |
(G) Disputes arising between a manufacturer or distributor | 539 |
and a new motor vehicle dealer under this section and section | 540 |
4517.541 of the Revised Code shall be resolved by submitting the | 541 |
dispute to the manufacturer's internal dispute resolution process | 542 |
if one is available. If no such process exists, the dispute shall | 543 |
be submitted to a court of competent jurisdiction. Either party | 544 |
may appeal the decision of the manufacturer's internal dispute | 545 |
resolution process to a court of competent jurisdiction. | 546 |
(H) Nothing in this section or section 4517.541 of the | 547 |
Revised Code shall be construed as prohibiting a manufacturer or | 548 |
distributor from changing, adding or deleting models, | 549 |
specifications, model names, numbers or identifying marks, or | 550 |
similar characteristics of the new vehicles it markets, provided | 551 |
that the change, addition, or deletion does not result in the | 552 |
termination or discontinuance of a line-make, series, brand, or | 553 |
class of new vehicle. | 554 |
(I) This section shall not apply to franchisors or | 555 |
franchisees who deal in recreational vehicles. | 556 |
(J) As used in this section: | 557 |
(1) "Net acquisition cost" means the franchised dealer cost | 558 |
for a new and unsold motor vehicle in a dealer's inventory plus | 559 |
any charges by the manufacturer or distributor for destination, | 560 |
distribution, or delivery, and taxes, less all allowances paid or | 561 |
credited to the franchised dealer by the manufacturer or | 562 |
distributor. | 563 |
(2) "Line-make" means a collection of models, series, or | 564 |
groups of motor vehicles manufactured by or for a particular | 565 |
manufacturer, distributor, or importer that are offered for sale, | 566 |
lease, or distribution pursuant to a common brand name or mark. | 567 |
Multiple brand names or marks may constitute a single line-make, | 568 |
but only when included in a common dealer agreement and when the | 569 |
manufacturer, distributor, or importer offers such vehicles | 570 |
bearing the multiple names or marks together, and not separately, | 571 |
to its authorized dealers. | 572 |
Sec. 4517.55. (A) In determining whether good cause has been | 573 |
established by the franchisor for terminating, cancelling, or | 574 |
failing to continue or renew a franchise, the motor vehicle | 575 |
dealers board shall take into consideration the existing | 576 |
circumstances, including, but not limited to: | 577 |
(1) The amount of retail sales transacted by the franchisee | 578 |
during a five-year period immediately preceding such notice as | 579 |
compared to the business available to the franchisee; | 580 |
(2) The investment necessarily made and obligations incurred | 581 |
by the franchisee to perform its part of the franchise; | 582 |
(3) The permanency of the franchisee's investment; | 583 |
(4) Whether it is injurious or beneficial to the public | 584 |
interest for the franchise to be modified or replaced, or the | 585 |
business of the franchisee disrupted; | 586 |
(5) Whether the franchisee has adequate motor vehicle sales | 587 |
and service facilities, equipment, vehicle parts, and qualified | 588 |
service personnel to reasonably provide for the needs of the | 589 |
consumers for the motor vehicles handled by the franchisee, and is | 590 |
rendering adequate service to the public; | 591 |
(6) Whether the franchisee fails to fulfill the warranty | 592 |
obligations of the franchisor required to be performed by the | 593 |
franchisee; | 594 |
(7) The extent and materiality of the franchisee's failure to | 595 |
comply with the terms of the franchise and the reasonableness and | 596 |
fairness of the franchise terms; | 597 |
(8) Whether the owners of the new motor vehicle dealer had | 598 |
actual knowledge of the facts and circumstances upon which | 599 |
termination, cancellation, discontinuance, or nonrenewal is based; | 600 |
(9) Whether the proposed termination, cancellation, | 601 |
discontinuance, or nonrenewal constitutes discriminatory | 602 |
enforcement of the franchise agreement. | 603 |
(B) Notwithstanding the terms, conditions, or provisions of | 604 |
any franchise or waiver, the following do not constitute | 605 |
sufficient good cause for terminating, cancelling, or failing to | 606 |
continue or renew a franchise: | 607 |
(1) Refusal by the franchisee to purchase or accept delivery | 608 |
of any new motor vehicle, parts, accessories, or any other | 609 |
commodity or service not ordered by the franchisee; | 610 |
(2) The fact that the franchisee or the owner of any interest | 611 |
therein, owns, has an investment in, participates in the | 612 |
management of, or holds a license for the sale of the same or any | 613 |
other line-make of new motor vehicle; | 614 |
(3) The sale, transfer, or issuance of any equity or | 615 |
debenture issue, or the transfer or issuance of any security or | 616 |
shares of stock in a new motor vehicle dealer to any person, | 617 |
whenever the sale, issuance, or transfer does not result in a | 618 |
change in the controlling ownership of the dealership; | 619 |
(4) A change by the franchisee in the administrative or | 620 |
executive management of the dealership; | 621 |
(5) Failure of the franchisee to achieve any unreasonable or | 622 |
discriminatory performance criteria; | 623 |
(6) A loss of trust by the franchisor absent circumstances or | 624 |
facts that would be a material breach of the franchise agreement | 625 |
and that material breach is known and ratified by the owners of | 626 |
the new motor vehicle dealer; | 627 |
(7) The failure of a franchisee to maintain a motor vehicle | 628 |
floor plan line of credit, unless the franchisee fails to maintain | 629 |
a floor plan line of credit for one hundred twenty days or longer; | 630 |
(8) The export of new motor vehicles to a foreign country, | 631 |
absent evidence that the new motor vehicle dealer knew or should | 632 |
have known that the vehicle was purchased for export. There shall | 633 |
be a rebuttable presumption that a new motor vehicle dealer did | 634 |
not know, or should not have known, that a vehicle was purchased | 635 |
for export if the vehicle is titled in the United States. | 636 |
(C) Divisions (B)(6) to (8) of this section shall not apply | 637 |
to franchisors or franchisees who deal in recreational vehicles. | 638 |
Sec. 4517.59. (A) Notwithstanding the terms, provisions, or | 639 |
conditions of any agreement, franchise, or waiver, no franchisor | 640 |
shall: | 641 |
| 642 |
provisions, or conditions of a franchise or in terminating, | 643 |
canceling, or failing to renew a franchise, fail to act in good | 644 |
faith; | 645 |
| 646 |
executive management, provided such personnel satisfy reasonable | 647 |
and objective standards formulated and objectively applied by the | 648 |
franchisor; | 649 |
| 650 |
the transfer of any securities in a dealership, or in any way | 651 |
prevent or attempt to prevent the transfer, sale, or issuance of | 652 |
shares of stock or debentures to any person, if the basic | 653 |
financial requirements of the franchisor have been equalled at the | 654 |
time of the execution of the franchise agreement and continued in | 655 |
effect, and if the sale, transfer, or issuance does not have the | 656 |
effect of accomplishing a sale of a controlling interest in the | 657 |
dealership; | 658 |
| 659 |
failing to renew or extend a lease of premises where the fee or | 660 |
right of possession is in the absolute control of the franchisor | 661 |
and the franchisee upon request or demand of the franchisor fails | 662 |
to expand its facilities, increase sales personnel, purchase more | 663 |
parts or accept programs for sales and operation of the | 664 |
franchisee's business, when such demand is not reasonable, fair, | 665 |
and equitable under all circumstances, or tends to depreciate the | 666 |
franchisee's equity; | 667 |
| 668 |
render any service normally performed and required of franchisees | 669 |
under the franchise agreement with the franchisor, in unfair | 670 |
competition with the franchisee, except that this division does | 671 |
not apply to a sale, lease, or rental to, or service performed | 672 |
for, an agency of federal, state, or local government; | 673 |
| 674 |
delivery of any motor vehicle, parts, accessories, or any other | 675 |
commodities connected therewith which are not ordered by said | 676 |
franchisee; nor withhold or delay delivery of motor vehicles out | 677 |
of the ordinary course of business; nor discriminate against any | 678 |
franchisee in the allocation or through the withholding from | 679 |
delivery of certain models of motor vehicles ordered by a | 680 |
franchisee out of the ordinary course of business; nor unfairly | 681 |
change or amend unilaterally a franchisee's allotment of motor | 682 |
vehicles or quota | 683 |
penetration without reasonable cause; nor coerce a franchisee by | 684 |
any means to participate or contribute to any local or national | 685 |
advertising fund; nor employ any coercive techniques for any other | 686 |
purposes such as obtaining franchisee participation in contests, | 687 |
"giveaways," or other sales devices; | 688 |
| 689 |
threatening to award an additional franchise or agreement to | 690 |
another person for the sale of its same product in the same area | 691 |
of influence for the purposes of compelling such franchisee to | 692 |
yield to demands of the franchisor for increased sales of the | 693 |
franchisor's products, parts, expansion of facilities and | 694 |
improvement of operations inconsistent with good business | 695 |
practices of the franchisee; | 696 |
| 697 |
line-make franchisees all motor vehicles, motor vehicle parts, or | 698 |
other products manufactured for that line-make at the same actual | 699 |
price, or to utilize any device including, but not limited to, | 700 |
sales promotion plans or programs that result in such lesser | 701 |
actual price. Division (A)(8) of this section shall not apply to | 702 |
sales to a franchisee for resale to any unit of government or | 703 |
donation or use by a franchisee in a driver education program. | 704 |
Division (A)(8) of this section shall not prohibit the offering of | 705 |
incentive programs or other discounts so long as such incentives | 706 |
or discounts are reasonably available to all franchisees in this | 707 |
state on a proportionately equal basis and are based on the sale | 708 |
of individual vehicles and not increased for meeting a performance | 709 |
standard unless the standard is reasonable considering all | 710 |
existing circumstances. | 711 |
A franchisor has not made a motor vehicle, motor vehicle | 712 |
part, or other product available to all line-make franchisees if | 713 |
the franchisor does any of the following: | 714 |
(a) Requires a franchisee to remodel, renovate, or | 715 |
recondition the new motor vehicle dealer's existing dealership | 716 |
facilities as a prerequisite to receiving the model, part, or | 717 |
product, unless reasonably necessary to accommodate the adequate | 718 |
sale and service of a vehicle based on the technology of that | 719 |
vehicle. As used in division (A)(8) of this section, "remodel, | 720 |
renovate, and recondition" includes the requirement that a | 721 |
franchisee purchase or lease unreasonably expensive advertising or | 722 |
promotional displays or other similar materials. | 723 |
(b) Requires a franchisee to pay an additional fee to receive | 724 |
any model, part, or product within a franchisor's line-make; | 725 |
(c) Requires a franchisee to accept additional inventory to | 726 |
receive any model, part, or product within a franchisor's | 727 |
line-make. | 728 |
(9) Fail to either return a part to the franchisee, at the | 729 |
franchisor's expense, or reimburse the franchisee for the | 730 |
franchisee's cost of the part where a franchisor does not approve | 731 |
a franchisee's claim for a defective part; | 732 |
| 733 |
claim submitted by a franchisee within forty-five days after | 734 |
receipt from the franchisee. If a claim is not approved, the | 735 |
franchisor shall immediately so notify in writing the franchisee | 736 |
who submitted the claim and shall include in the notice the | 737 |
specific grounds upon which the disapproval is based. | 738 |
| 739 |
approval by the franchisor of any claim by a franchisee for labor | 740 |
and parts made under | 741 |
section 4517.53 of the Revised Code. Any failure of a franchisor | 742 |
to act on or pay a claim within the time limits specified by this | 743 |
section that results from causes beyond the franchisor's | 744 |
reasonable control does not constitute a violation of this | 745 |
section. | 746 |
| 747 |
because the franchisee fails to submit or resubmit the claim | 748 |
within a period of less than six months from the date on which the | 749 |
service was rendered or parts supplied; | 750 |
| 751 |
"National Traffic and Motor Vehicle Safety Act," 49 U.S.C. 30101, | 752 |
et seq. or any regulation adopted thereunder, the "Transportation | 753 |
Recall, Enhancement, Accountability, and Documentation Act," 49 | 754 |
U.S.C. 30123, et seq. or any regulation adopted thereunder, or any | 755 |
other federal law or regulation, provide reimbursement to any | 756 |
individual or entity that is not a franchisee for labor and parts | 757 |
used to fulfill warranty and recall work, unless the work is | 758 |
required for emergency service, or is performed by a service | 759 |
center owned by the manufacturer on employee- or company-owned | 760 |
vehicles only, or the work is warranty service by employees of a | 761 |
fleet operator on its own vehicles. Nothing in division (A)(13) of | 762 |
this section shall prohibit a manufacturer from reimbursing a | 763 |
franchisee of another line-make of the same manufacturer for labor | 764 |
and parts used to fulfill warranty and recall work. | 765 |
(14) Refuse to disclose to any new motor vehicle dealer who | 766 |
handles the same line-make, the manner and mode of distribution of | 767 |
that line-make within the same county, or if a line-make is | 768 |
allocated among new motor vehicle dealers, refuse to disclose to | 769 |
any new motor vehicle dealer that handles the same line-make the | 770 |
system of allocation, including, but not limited to, a complete | 771 |
breakdown by model, color, equipment, other items or terms, and a | 772 |
concise listing of dealerships with an explanation of the | 773 |
derivation of the allocation system including its mathematical | 774 |
formula in a clear and comprehensible form; | 775 |
| 776 |
against any new motor vehicle dealer including discriminating | 777 |
against a franchisee, as compared to a same line-make franchisee, | 778 |
with regard to motor vehicle allocation, motor vehicle sales | 779 |
expectations, motor vehicle market penetration, motor vehicle | 780 |
planning volume requirements, customer service satisfaction | 781 |
requirements, dealership facility requirements, or dealer | 782 |
capitalization requirements; | 783 |
| 784 |
new motor vehicles solely because it owns or operates a franchise | 785 |
of the same line-make in a contiguous market; | 786 |
(17) Use any financial services company or leasing company | 787 |
owned in whole or part or controlled by the manufacturer or | 788 |
distributor to accomplish what would otherwise be illegal conduct | 789 |
on the part of the manufacturer or distributor pursuant to this | 790 |
section. This section does not limit the right of the financial | 791 |
services or leasing company to otherwise engage in regular | 792 |
financial services or leasing business practices. | 793 |
(18) Initiate a charge back without an audit or perform an | 794 |
audit to confirm a warranty repair, sales incentive, or rebate | 795 |
more than twelve months after the date of submission by the | 796 |
franchisee, provided that these limitations shall not be effective | 797 |
in the case of a fraudulent claim. Division (A)(18) of this | 798 |
section does not preclude a charge back for any fraudulent claim | 799 |
that was previously paid. | 800 |
(19) Refuse to pay a franchisee for sales incentives, service | 801 |
incentives, rebates, or other forms of incentive compensation | 802 |
within thirty days after their approval by the manufacturer. The | 803 |
franchisor shall either approve or disapprove each claim by the | 804 |
franchisee within thirty days after receipt of the claim in a | 805 |
proper form generally used by the franchisor. Any claims not | 806 |
specifically disapproved in writing within thirty days after | 807 |
receipt shall be considered to be approved. | 808 |
(20) Reduce the amount to be paid to the new motor vehicle | 809 |
dealer or charge a new motor vehicle dealer back subsequent to the | 810 |
payment of the claim unless either of the following applies: | 811 |
(a) The manufacturer shows that the claim lacks material | 812 |
documentation or is false, fraudulent, or a misrepresentation. A | 813 |
franchisor may not deny a claim based solely on a new motor | 814 |
vehicle dealer's incidental failure to comply with a specific | 815 |
claim processing requirement, such as a clerical error, that does | 816 |
not put into question the legitimacy of the claim. | 817 |
(b) The new motor vehicle dealer knew or should have known a | 818 |
new motor vehicle was sold for export to a foreign country. There | 819 |
shall exist a rebuttable presumption that a new motor vehicle | 820 |
dealer did not know, or should not have known, that a vehicle was | 821 |
sold for export to a foreign country if the motor vehicle is | 822 |
titled in the United States. | 823 |
No refusal to pay sales incentives, service incentives, | 824 |
rebates, or other forms of incentive compensation, no reduction in | 825 |
the amount to be paid to the new motor vehicle dealer, and no | 826 |
charge back subsequent to the payment of a claim may be made until | 827 |
the new motor vehicle dealer has had notice and an opportunity to | 828 |
participate in all franchisor internal appeal processes as well as | 829 |
all available legal processes. If a charge back is the subject of | 830 |
adjudication, internal appeal, mediation, or arbitration, no | 831 |
charge back shall be made until, in the case of an adjudication or | 832 |
legal action, a final appealable order has been issued. | 833 |
At the time submitted, the claim shall act as an immediate | 834 |
automatic credit against future billings. Any ambiguity or | 835 |
inconsistency in submission guidelines shall be construed against | 836 |
the drafter. Any failure by a new motor vehicle dealer to exercise | 837 |
its rights to reimbursement under this section does not create a | 838 |
waiver of these rights. Any unreasonable denial, delay, or | 839 |
restriction of a valid reimbursement claim shall subject the | 840 |
manufacturer to interest in accordance with division (A) of | 841 |
section 1343.03 of the Revised Code until paid. | 842 |
(21) Prevent, attempt to prevent, prohibit, coerce, or | 843 |
attempt to coerce, any new motor vehicle dealer from charging any | 844 |
consumer any fee allowed to be charged by the dealer under Ohio | 845 |
law; | 846 |
(22) Require, coerce, or attempt to coerce any new motor | 847 |
vehicle dealer in this state to change the capital structure of | 848 |
the new motor vehicle dealer or the means by or through which the | 849 |
new motor vehicle dealer finances the operation of the dealership | 850 |
provided that: | 851 |
(a) The new motor vehicle dealer at all times shall meet any | 852 |
reasonable capital standards determined by the manufacturer in | 853 |
accordance with uniformly applied criteria. | 854 |
(b) No change in the capital structure shall cause a change | 855 |
in the principal management or have the effect of a sale of the | 856 |
franchise without the consent of the manufacturer or distributor, | 857 |
and further provided that the manufacturer or distributor shall | 858 |
not unreasonably withhold consent. | 859 |
(23) Require, coerce, or attempt to coerce any new motor | 860 |
vehicle dealer in this state to change location of the dealership, | 861 |
or to make any substantial alterations to the dealership premises | 862 |
or facilities, when to do so would be unreasonable, or without | 863 |
written estimation of a sufficient supply of new motor vehicles so | 864 |
as to justify the location change or alterations, in light of the | 865 |
current market and economic conditions; | 866 |
(24) Establish any performance standard or program for | 867 |
measuring franchisee performance that may have a material impact | 868 |
on a franchisee that is not fair, reasonable, and equitable, or | 869 |
apply any such standard or program to a franchisee in a manner | 870 |
that is not fair, reasonable, and equitable; | 871 |
(25) Unreasonably require a franchisee to establish or | 872 |
maintain exclusive sales facilities, sales display space, | 873 |
personnel, service, parts, or administrative facilities for a | 874 |
line-make, unless such exclusivity is reasonable and otherwise | 875 |
justified by reasonable business considerations. In making that | 876 |
determination, the franchisor shall take into consideration the | 877 |
franchisee's satisfaction of facility requirements as required by | 878 |
the franchise agreement. The franchisor shall have the burden of | 879 |
proving that reasonable business considerations justify | 880 |
exclusivity. | 881 |
(26) Require or request a franchisee to waive any | 882 |
requirements of this section. | 883 |
(B) No franchisor shall discriminate among the franchisor's | 884 |
dealers in any program that provides assistance to the | 885 |
franchisor's dealers, including internet listings, sales leads, | 886 |
warranty policy adjustments, marketing programs, and dealer | 887 |
recognition programs. The franchisor shall not require a | 888 |
franchisee to provide its customer lists or service files to the | 889 |
franchisor, unless necessary for the sale and delivery of a new | 890 |
motor vehicle to a consumer, to validate and pay consumer or | 891 |
dealer incentives, or for the submission to the franchisor for any | 892 |
services supplied by the franchisee for any claim for warranty | 893 |
parts or repairs. Nothing in this division shall limit the | 894 |
franchisor's ability to require or use customer information to | 895 |
satisfy any safety or recall notice obligation. | 896 |
(C) No franchise agreement shall require the franchisee to | 897 |
pay the attorney's fees of a franchisor, waive any remedy or | 898 |
defense available to the franchisee, require a motor vehicle | 899 |
dealer to submit to arbitration or mediation to resolve a | 900 |
controversy before the controversy arises, or waive any other | 901 |
provisions of this chapter. Nothing in this division shall | 902 |
preclude the parties from entering into a voluntary agreement to | 903 |
arbitrate or mediate a controversy after it arises unless | 904 |
otherwise precluded by law. Such an agreement shall require that | 905 |
the dispute be heard in this state and that the arbitrator or | 906 |
mediator apply the law of this state in resolving the controversy. | 907 |
Either party may appeal a decision of an arbitrator in the court | 908 |
of common pleas of Franklin county on the grounds that the | 909 |
arbitrator failed to apply the law of this state. | 910 |
(D) This section applies to any franchise whether entered | 911 |
into prior to or after the effective date of this amendment. | 912 |
Divisions (A)(8), (13), (16) to (25), (B), and (C) of this section | 913 |
shall not apply to franchisors or franchisees who deal in | 914 |
recreational vehicles. | 915 |
Section 2. That existing sections 4517.01, 4517.52, 4517.54, | 916 |
4517.55, and 4517.59 of the Revised Code are hereby repealed. | 917 |