Bill Text: AZ HB2608 | 2011 | Fiftieth Legislature 1st Regular | Engrossed
Bill Title: Public consignment auction dealers; definition
Spectrum: Partisan Bill (Republican 4-0)
Status: (Passed) 2011-04-27 - Governor Signed [HB2608 Detail]
Download: Arizona-2011-HB2608-Engrossed.html
|
House Engrossed |
|
State of Arizona House of Representatives Fiftieth Legislature First Regular Session 2011
|
|
HOUSE BILL 2608 |
|
|
|
|
AN ACT
amending section 28‑4301, Arizona Revised Statutes; amending title 28, chapter 10, article 4, Arizona Revised Statutes, by adding section 28‑4410.01; relating to public consignment auction dealers.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 28-4301, Arizona Revised Statutes, is amended to read:
28-4301. Definitions
In this chapter, unless the context otherwise requires:
1. "Area of responsibility" means the area surrounding an individual dealer that the factory designates as that dealer's individual primary geographic territory for the purpose of marketing, promoting, selling and leasing new motor vehicles. In the absence of the factory designated area, the area of responsibility is that geographical area surrounding a dealer that lies closer to that dealer than to other dealers of the same line‑make.
2. "Automotive recycler" means a person who is engaged in the business of buying or acquiring a motor vehicle solely for the purpose of dismantling, selling or otherwise disposing of the parts or accessories and who dismantles six or more vehicles in a calendar year.
3. "Branch license" means a license that is issued by the director to a licensed motor vehicle dealer and that permits the licensee to sell motor vehicles from an established place of business within the same county but other than the original or principal place of business for which the license was issued.
4. "Broker" means a person who for any fee, commission or other valuable consideration offers to provide, provides or represents that the person will provide a service of arranging or assisting in effecting the purchase of a motor vehicle and who is not:
(a) A new motor vehicle dealer or an employee or agent of a new motor vehicle dealer.
(b) A used motor vehicle dealer or an employee or agent of a used motor vehicle dealer.
(c) A manufacturer or employee or agent of a manufacturer.
(d) An auctioneer or engaged in the auto auction business.
(e) A wholesale motor vehicle dealer.
5. "Community" means the relevant market area. For the purposes of this paragraph, "relevant market area" means the incorporated city or town in which the franchise is located.
6. "Distributor" means a person who either:
(a) Sells or distributes new motor vehicles to new motor vehicle dealers in this state.
(b) Maintains distributor representatives in this state.
7. "Distributor branch" means a branch office maintained or availed of by a distributor for either:
(a) The sale of new motor vehicles to new motor vehicle dealers in this state.
(b) Directing or supervising its representatives in this state.
8. "Established place of business":
(a) Means a permanent enclosed building or structure that is owned either in fee or leased with sufficient space to display two or more motor vehicles of a kind and type that the dealer is licensed to sell and that is devoted principally to the use of a motor vehicle dealer in the conduct of the business of the dealer.
(b) In the case of a used motor vehicle dealer, trailer dealer or semitrailer dealer:
(i) Need not be a permanent building or structure or part of a permanent building or structure.
(ii) May be a vacant lot or part of a vacant lot.
(iii) Does not mean or include a residence, tent, temporary stand or temporary quarters or permanent quarters occupied pursuant to a temporary arrangement.
(c) In the case of an automotive recycler, means a permanent site or location at which the business of an automotive recycler is or will be conducted.
9. "Exhibitor" means a manufacturer of new motor homes that exhibits new motor homes at a special event.
10. "Factory branch" means a branch office maintained or availed of by a manufacturer for either:
(a) The sale of new motor vehicles to distributors or the sale of new motor vehicles to new motor vehicle dealers in this state.
(b) Directing or supervising its representatives in this state.
11. "Financial institution" means a bank, trust company, savings and loan association, credit union, consumer lender, international banking facility or holding company that is licensed, regulated or insured by the department of financial institutions, the federal deposit insurance corporation, the office of thrift supervision, the comptroller of the currency, the national credit union share insurance fund or the national credit union administration.
12. "Franchise" means a contract between two or more persons if all of the following conditions are included:
(a) A commercial relationship of definite duration or continuing indefinite duration is involved.
(b) The franchisee is granted the right to offer, sell and service in this state new motor vehicles manufactured or distributed by the franchisor.
(c) The franchisee, as a separate business, constitutes a component of the franchisor's distribution system.
(d) The operation of the franchisee's business is substantially associated with the franchisor's trademark, service mark, trade name, advertising or other commercial symbol designating the franchisor.
(e) The operation of the franchisee's business is substantially reliant on the franchisor for the continued supply of new motor vehicles, parts and accessories.
13. "Franchisee" means a person who both:
(a) Receives new motor vehicles from the franchisor under a franchise.
(b) Offers and sells to and services new motor vehicles for the general public.
14. "Franchisor" means a person who both:
(a) Manufactures or distributes new motor vehicles.
(b) May enter into a franchise.
15. "Importer" means a person who transports or arranges for the transportation of a foreign manufactured new motor vehicle into the United States for sale in this state.
16. "Lead" means any retail consumer who satisfies all of the following:
(a) Responds to a factory‑directed program that obtains consumer contact information and that provides such information to one or more dealers.
(b) Expresses an interest to the factory in purchasing, leasing or acquiring any vehicle or product, service or financing available from the dealers of that factory.
(c) Does not qualify for any reasonable factory sponsored employee, retiree or vendor new vehicle purchase program or any other reasonable similar factory new vehicle purchase program.
17. "Line‑make" means those motor vehicles that are offered for sale, lease or distribution under a common name, trademark, service mark or brand name of the manufacturer of those same motor vehicles.
18. "Major component part" includes a motor vehicle or vehicle part that the manufacturer has assigned any factory, motor, serial or other identification number or mark.
19. "Manufacturer" means any person who either:
(a) Manufactures or assembles new motor vehicles.
(b) Manufactures or installs on previously assembled truck chassis special bodies or equipment that when installed forms an integral part of the new motor vehicle and that constitutes a major manufacturing alteration, excluding the installation of a camper on a pickup truck.
20. "Motor home" means a motor vehicle that is primarily designed as temporary living quarters and that:
(a) Is built onto as an integral part of, or is permanently attached to, a motor vehicle chassis.
(b) Contains at least four of the following independent life support systems if each is permanently installed and designed to be removed only for purposes of repair or replacement:
(i) A cooking facility with an on board onboard fuel source.
(ii) A gas or electric refrigerator.
(iii) A toilet with exterior evacuation.
(iv) A heating or air conditioning system with an on board onboard power or fuel source separate from the vehicle engine.
(v) A potable water supply system that includes at least a sink, a faucet and a water tank with an exterior service supply connection.
(vi) A 110‑125 volt electric power supply.
21. "Motor vehicle" means an automobile, motor bus, motorcycle, truck or truck tractor or any other self‑propelled vehicle, trailer or semitrailer.
22. "Motor vehicle dealer" means a new motor vehicle dealer, a used motor vehicle dealer, a public consignment auction dealer, a broker or a wholesale motor vehicle auction dealer, excluding a person who comes into possession of a motor vehicle as an incident to the person's regular business and who sells, auctions or exchanges the motor vehicle.
23. "New house trailer dealer" means a person who buys, sells, exchanges or offers or attempts to negotiate a sale or exchange of an interest in, or who is engaged in the business of selling, new house trailers or used house trailers taken in trade on new house trailers. For the purposes of this paragraph, "house trailer" means a vehicle, other than a motor vehicle, that is built on a chassis designed for being drawn on the highways by a motor vehicle and that is designed for human habitation.
24. "New motor vehicle" means a motor vehicle, other than a used motor vehicle, that is held either for:
(a) Sale by the franchisee who first acquired the vehicle from the manufacturer or distributor of the vehicle.
(b) Sale by another franchisee of the same line‑make.
25. "New motor vehicle dealer" means a person who buys, sells, exchanges or offers or attempts to negotiate a sale or exchange of an interest in, or who is engaged in the business of selling, new motor vehicles or used motor vehicles taken in trade on new motor vehicles or used vehicles purchased for resale.
26. "Off‑premises display and sales" means a promotion or sale of motor vehicles for a period of time as specified by the director that both:
(a) Is sponsored by a licensed motor vehicle dealer, the licensed motor vehicle dealer's agents or the manufacturer.
(b) Takes place at a location within the same county but not at the licensee's established place of business.
27. "Off‑premises exhibition" means the exhibition of a motor vehicle for a period of time as specified by the director at a location within the same county but not at the established place of business of a licensed motor vehicle dealer and at which a solicitation or sale does not occur.
28. "Provisional automotive recycler's license" means a license that both:
(a) Is issued by the department only in conjunction with an application for an automotive recycler's license.
(b) Permits the applicant or applicants to conduct the business of an automotive recycler regulated by this chapter pending completion of the criminal records check pursuant to section 28‑4361.
29. "Provisional dealer's license" means a license that both:
(a) Is issued by the department only in conjunction with an application for a dealer's license.
(b) Permits the applicant or applicants to conduct the business of a motor vehicle dealer regulated by this chapter pending completion of the criminal records check pursuant to section 28‑4361.
30. "Public consignment auction dealer" means a person who at the public consignment auction dealer's established place of business or at an authorized off‑premises location pursuant to the requirements of section 28‑4401 is in the business of both of the following:
(a) Conducting live auctions with a licensed auctioneer verbally calling for and accepting bids.
(b) Providing live auction services to the public on a consignment contract basis.
30. 31. "Retail consumer" means any person purchasing, leasing or acquiring or possibly purchasing, leasing or acquiring a vehicle or product, service or financing not for resale.
31. 32. "Service" means any service that is sold, leased or provided to retail consumers and that directly relates to the ownership or leasing of a new or used motor vehicle, including extended service contracts or motor vehicle warranty and nonwarranty repairs or maintenance, including both parts and labor.
32. 33. "Special event" means an exhibition of new motor homes by a motor vehicle dealer licensed to sell new motor homes or an exhibitor for a period of time specified by the director at a location in this state other than the licensee's or exhibitor's established place of business.
33. 34. "Used motor vehicle" means a motor vehicle that has been sold, bargained, exchanged or given away or the title to the motor vehicle has been transferred from the person who first acquired the vehicle from the manufacturer, or importer, dealer or agent of the manufacturer or importer, and that has been placed in bona fide consumer use. For the purposes of this paragraph, "bona fide consumer use" means actual operation by an owner who acquired a new motor vehicle both:
(a) For use in the owner's business or for pleasure or otherwise.
(b) For which a certificate of title has been issued or that has been registered as provided by law.
34. 35. "Used motor vehicle dealer" means a person, other than a new motor vehicle dealer, who buys, sells, auctions, exchanges or offers or attempts to negotiate a sale or exchange of an interest in, or who is engaged in the business of selling, four or more used motor vehicles in a continuous twelve month period. Used motor vehicle dealer does not include a wholesale motor vehicle auction dealer or a public consignment auction dealer.
35. 36. "Wholesale motor vehicle auction dealer" means a person who both:
(a) Is in the business of providing auction services solely in wholesale transactions to motor vehicle dealers licensed by this state or any other jurisdiction.
(b) Does not buy, sell or own the motor vehicles the auction dealer auctions in the ordinary course of business.
36. 37. "Wholesale motor vehicle dealer" means a person who sells used motor vehicles only to licensed motor vehicle dealers.
Sec. 2. Title 28, chapter 10, article 4, Arizona Revised Statutes, is amended by adding section 28-4410.01, to read:
28-4410.01. Public consignment auction dealers; exemptions; notices; requirements; payment of taxes; wholesale motor vehicle dealer prohibition
A. A public consignment auction dealer is exempt from the following:
1. An implied warranty of merchantability described in section 28‑4412, subsection B and section 44‑1267.
2. An emissions inspection pursuant to section 49‑542, subsection D.
B. A public consignment auction dealer, on transferring a motor vehicle by sale, shall immediately give written notice to the department pursuant to section 28‑4555 on a form prescribed by the director that includes:
1. The date of the transfer.
2. The name and address of the seller.
3. The name and address of the purchaser.
4. The vehicle identification number of the motor vehicle.
5. The make and model of the motor vehicle.
6. The successful bid price and any premiums or commissions paid associated with the auction of the motor vehicle.
C. A public consignment auction dealer, on transferring a motor vehicle by sale, shall immediately give written notice to the purchaser on a form prescribed by the director that includes:
1. The date of the transfer.
2. The vehicle identification number of the motor vehicle.
3. The make and model of the motor vehicle.
4. The successful bid price and any premiums or commissions paid associated with the auction of the motor vehicle.
D. A public consignment auction dealer shall keep and maintain at the public consignment auction dealer's established place of business a permanent record in a form prescribed by the director. The permanent record shall include the information prescribed by subsection B of this section and contain a description of all motor vehicle transfers and sales. The public consignment auction dealer shall make the permanent record available for inspection by the department of transportation, the department of revenue or any peace officer.
E. A public consignment auction dealer shall do all of the following:
1. Inform the purchaser of a motor vehicle that the purchaser is responsible for the emission inspection requirements described in section 49‑542, subsection D.
2. Comply with the consignment contract requirements prescribed in section 28‑4410 if the motor vehicle is acquired from a person other than a licensee.
3. Comply with the requirements of section 28‑4409 relating to evidence of ownership if the motor vehicle is acquired from another licensee.
F. This section does not exempt a public consignment auction dealer from any transaction privilege tax imposed pursuant to title 42, chapter 5.
G. A wholesale motor vehicle dealer shall not sell motor vehicles to a public consignment auction dealer.
Sec. 3. Effective date
This act is effective from and after September 30, 2011.
