Bill Text: NC S673 | 2015-2016 | Regular Session | Amended
Bill Title: Natural Gas Econ. Dev. Infrastructure
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2016-07-28 - Ch. SL 2016-118 [S673 Detail]
Download: North_Carolina-2015-S673-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2015
S 1
SENATE BILL 673
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Short Title: Clarify Motor Vehicle Dealer Laws. |
(Public) |
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Sponsors: |
Senator Apodaca (Primary Sponsor). |
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Referred to: |
Commerce. |
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March 30, 2015
A BILL TO BE ENTITLED
AN ACT TO CLARIFY MOTOR VEHICLE DEALERS AND MANUFACTURERS LICENSING LAw.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 20‑286(10) reads as rewritten:
"(10) Motor vehicle. – Any motor propelled vehicle, trailer or semitrailer, required to be registered under the laws of this State.
a. "New motor vehicle" means a motor vehicle that has never been the subject of a completed, successful, or conditional sale that was subsequently approved other than between new motor vehicle dealers, or between manufacturer and dealer of the same franchise.
b. "Used motor vehicle" means a motor
vehicle other than a motor vehicle described in paragraph (10)a
above.sub‑subdivision a. of this subdivision."
SECTION 2. G.S. 20‑305(6) reads as rewritten:
"(6) Notwithstanding the terms, provisions or
conditions of any franchise or notwithstanding the terms or provisions of any
waiver, to terminate, cancel or fail to renew any franchise with a licensed new
motor vehicle dealer unless the manufacturer has satisfied the notice
requirements of subparagraphsub‑subdivision c. of this
subdivision and the Commissioner has determined, if requested in writing by
the dealer within (i) the time period specified in G.S. 20‑305(6)c.1.II.,
III., or IV., as applicable, or (ii) the effective date of the franchise
termination specified or proposed by the manufacturer in the notice of
termination, whichever period of time is longer, and after a hearing on the
matter, that there is good cause for the termination, cancellation, or
nonrenewal of the franchise and that the manufacturer has acted in good faith
as defined in this act regarding the termination, cancellation or nonrenewal.
When such a petition is made to the Commissioner by a dealer for determination
as to the existence of good cause and good faith for the termination,
cancellation or nonrenewal of a franchise, the Commissioner shall promptly
inform the manufacturer that a timely petition has been filed, and the
franchise in question shall continue in effect pending the Commissioner's
decision. The Commissioner shall try to conduct the hearing and render a final
determination within 180 days after a petition has been filed. If the
termination, cancellation or nonrenewal is pursuant to G.S. 20‑305(6)c.1.III.
then the Commissioner shall give the proceeding priority consideration and
shall try to render his final determination no later than 90 days after the
petition has been filed. Any parties to a hearing by the Commissioner under
this section shall have a right of review of the decision in a court of
competent jurisdiction pursuant to Chapter 150B of the General Statutes. Any
determination of the Commissioner under this section finding that good cause
exists for the nonrenewal, cancellation, or termination of any franchise shall
automatically be stayed during any period that the affected dealer shall have
the right to judicial review or appeal of the determination before the superior
court or any other appellate court and during the pendency of any appeal;
provided, however, that within 30 days of entry of the Commissioner's order,
the affected dealer provide such security as the reviewing court, in its
discretion, may deem appropriate for payment of such costs and damages as may
be incurred or sustained by the manufacturer by reason of and during the
pendency of the stay. Although the right of the affected dealer to such stay is
automatic, the procedure for providing such security and for the award of
damages, if any, to the manufacturer upon dissolution of the stay shall be in
accordance with G.S. 1A‑1, Rule 65(d) and (e). No such security
provided by or on behalf of any affected dealer shall be forfeited or damages
awarded against a dealer who obtains a stay under this subdivision in the event
the ownership of the affected dealership is subsequently transferred, sold, or
assigned to a third party in accordance with this subdivision or subdivision
(4) of this section and the closing on such transfer, sale, or assignment
occurs no later than 180 days after the date of entry of the Commissioner's
order. Furthermore, unless and until the termination, cancellation, or
nonrenewal of a dealer's franchise shall finally become effective, in light of
any stay or any order of the Commissioner determining that good cause exists for
the termination, cancellation, or nonrenewal of a dealer's franchise as
provided in this paragraph,subdivision, a dealer who receives a
notice of termination, cancellation, or nonrenewal from a manufacturer as
provided in this subdivision shall continue to have the same rights to assign,
sell, or transfer the franchise to a third party under the franchise and as
permitted under G.S. 20‑305(4) as if notice of the termination had
not been given by the manufacturer. Any franchise under notice or threat of termination,
cancellation, or nonrenewal by the manufacturer which is duly transferred in
accordance with G.S. 20‑305(4) shall not be subject to termination
by reason of failure of performance or breaches of the franchise on the part of
the transferor.
…
c. Notification of Termination, Cancellation and Nonrenewal. –
1. Notwithstanding the terms, provisions or conditions of any franchise prior to the termination, cancellation or nonrenewal of any franchise, the manufacturer shall furnish notification of termination, cancellation or nonrenewal to the new motor vehicle dealer as follows:
…
IV. Not less than 180 days prior to the effective date
of such termination, cancellation, or nonrenewal which occurs as a result of
any change in ownership, operation, or control of all or any part of the
business of the manufacturer, factory branch, distributor, or distributor
branch whether by sale or transfer of assets, corporate stock or other equity
interest, assignment, merger, consolidation, combination, joint venture, redemption,
operation of law or otherwise; or the termination, suspension, or cessation of
a part or all of the business operations of the manufacturers, factory branch,
distributor, or distributor branch; or the phasing out, winding down, or discontinuance
of the sale of the product lineline, line‑make, franchise, or
brand, or a change in distribution system by the manufacturer whether
through a change in distributors or the manufacturer's decision to cease
conducting business through a distributor altogether.
…
d. Payments.
…
2. The compensation provided above shall be paid by
the manufacturer or distributor not later than 90 days after the manufacturer
or distributor has received notice in writing from or on behalf of the new
motor vehicle dealer specifying the elements of compensation requested by the
dealer; provided the new motor vehicle dealer has, or can obtain, clear title
to the inventory and has conveyed, or can convey, title and possession of the
same to the manufacturer or distributor. Within 15 days after receipt of the
dealer's written request for compensation, the manufacturer or distributor
shall send the dealer detailed written instructions and forms required by the
manufacturer or distributor to effectuate the receipt of the compensation requested
by the dealer. The manufacturer or distributor shall be obligated to pay or
reimburse the dealer for any transportation charges associated with the
repurchase obligations of the manufacturer or distributor under this sub‑subparagraph.sub‑subdivision.
The manufacturer or distributor shall also compensate the dealer for any
handling, packing, or similar payments contemplated in the franchise. In no
event may the manufacturer or distributor charge the dealer any handling,
restocking, or other similar costs or fees associated with items repurchased by
the manufacturer under this sub‑subparagraph.sub‑subdivision.
3. In addition to the other payments set forth in this section, if a termination, cancellation, or nonrenewal is premised upon any of the occurrences set forth in G.S. 20‑305(6)c.1.IV., then the manufacturer or distributor shall be liable to the dealer for an amount at least equivalent to the fair market value of the franchise on (i) the date the franchisor announces the action which results in termination, cancellation, or nonrenewal; or (ii) the date the action which results in termination, cancellation, or nonrenewal first became general knowledge; or (iii) the day 18 months prior to the date on which the notice of termination, cancellation, or nonrenewal is issued, whichever amount is higher. Payment is due not later than 90 days after the manufacturer or distributor has received notice in writing from, or on behalf of, the new motor vehicle dealer specifying the elements of compensation requested by the dealer. Any contract, agreement, or release entered into between any manufacturer and any dealer in which the dealer waives the dealer's right to receive monetary compensation in any sum or amount less than the fair market of the franchise as provided in this subdivision, including any contract, agreement, or release in which the dealer would accept the right to continue to offer and be compensated for service, parts, or both service and parts, provided by the dealer in lieu of receiving all or a portion of the fair market value of the franchise, shall be insufficient to satisfy the manufacturer's obligation to adequately compensate the dealer under this subdivision and shall be voidable at any time at the election of the dealer. If the termination, cancellation, or nonrenewal is due to a manufacturer's change in distributors, but the models and series of vehicles sold in this State would continue through the new distributor, the manufacturer may avoid paying fair market value to the dealer if the new distributor or the manufacturer offers the dealer a franchise agreement with terms acceptable to the dealer.
e. Dealership Facilities Assistance upon Termination, Cancellation or Nonrenewal.
In the event of the occurrence of any of the events specified in G.S. 20‑305(6)d.1. above, except termination, cancellation or nonrenewal for license revocation, conviction of a crime involving moral turpitude, or fraud by a dealer‑owner:
1. Subject to paragraph 3,sub‑sub‑subdivision
3. of this sub‑subdivision, if the new motor vehicle dealer is
leasing the dealership facilities from a lessor other than the manufacturer or
distributor, the manufacturer or distributor shall pay the new motor vehicle
dealer a sum equivalent to the rent for the unexpired term of the lease or
three year's rent, whichever is less, or such longer term as is provided in the
franchise agreement between the dealer and manufacturer; except that, in the
case of motorcycle dealerships, the manufacturer shall pay the new motor
vehicle dealer the sum equivalent to the rent for the unexpired term of the
lease or one year's rent, whichever is less, or such longer term as provided in
the franchise agreement between the dealer and manufacturer; or
2. Subject to paragraph 3,sub‑sub‑subdivision
3. of this sub‑subdivision, if the new motor vehicle dealer owns the
dealership facilities, the manufacturer or distributor shall pay the new motor
vehicle dealer a sum equivalent to the reasonable rental value of the
dealership facilities for three years, or for one year in the case of
motorcycle dealerships.
3. In order to be entitled to facilities assistance
from the manufacturer or distributor, as provided in this paragraph e.,sub‑subdivision,
the dealer, owner, or lessee, as the case may be, shall have the obligation to
mitigate damages by listing the demised premises for lease or sublease with a
licensed real estate agent within 30 days after the effective date of the
termination of the franchise and thereafter by reasonably cooperating with said
real estate agent in the performance of the agent's duties and
responsibilities. In the event that the dealer, owner, or lessee is able to
lease or sublease the demised premises, the dealer shall be obligated to pay
the manufacturer the net revenue received from such mitigation up to the total
amount of facilities assistance which the dealer has received from the
manufacturer pursuant to sub‑subdivisions 1. and 2. To the extent and for
such uses and purposes as may be consistent with the terms of the lease, a
manufacturer who pays facilities assistance to a dealer under this paragraph
e.sub‑subdivision shall be entitled to occupy and use the
dealership facilities during the years for which the manufacturer shall have
paid rent under sub‑subdivisions 1. and 2.
…
5. The compensation required for facilities assistance
under this paragraph e.sub‑subdivision shall be paid by the
manufacturer or distributor within 90 days after the manufacturer or
distributor has received notice in writing from, or on behalf of, a new motor
vehicle dealer specifying the elements of compensation requested by the dealer.
…."
SECTION 3. G.S. 20‑305(7)d. reads as rewritten:
"d. Within 60 days after the death or incapacity
of the owner or principal operator, a designated successor appointed in
substantial compliance with this section shall give the affected manufacturer
or distributor written notice of his or her succession to the position of owner
or principal operator of the new motor vehicle dealership; provided, however,
that the failure of the designated successor to give the manufacturer or
distributor written notice as provided above within 60 days of the death or
incapacity of the owner or principal operator shall not result in the waiver or
termination of the designated successor's right to succeed to the ownership of
the new motor vehicle dealership unless the manufacturer or distributor gives
written notice of this provision to either the designated successor or the
deceased or incapacitated owner's executor, administrator, guardian or other
fiduciary by certified or registered mail, return receipt requested, and said
written notice grants not less than 30 days time within which the designated
successor may give the notice required hereunder, provided the designated
successor or the deceased or incapacitated owner's executor, administrator,
guardian or other fiduciary has given the manufacturer reasonable notice of
death or incapacity. Within 30 days of receipt of the notice by the
manufacturer or distributor from the designated successor provided in this paragraph,sub‑subdivision,
the manufacturer or distributor may request that the designated successor
complete the application forms generally utilized by the manufacturer or
distributor to review the designated successor's qualifications to establish a
successor dealership. Within 30 days of receipt of the completed forms, the
manufacturer or distributor shall send a letter by certified or registered
mail, return receipt requested, advising the designated successor of facts and
circumstances which have changed since the manufacturer's or distributor's
original approval of the designated successor, and which have caused the
manufacturer or distributor to object to the designated successor. Upon receipt
of such notice, the designated successor may either designate an alternative
successor or may file a request for evidentiary hearing in accordance with the
procedures provided in sub‑subdivisions b.2.–5. of this subdivision. In
any such hearing, the manufacturer or distributor shall be limited to facts and
circumstances which did not exist at the time the designated successor was
originally approved or evidence which was originally requested to be produced
by the designated successor at the time of the original request and was
fraudulent."
SECTION 4. G.S. 20‑305(38) reads as rewritten:
"(38) Notwithstanding the terms, provisions, or
conditions of any agreement, franchise, novation, waiver, or other written
instrument, to assign or change a franchised new motor vehicle dealer's area of
responsibility under the franchise arbitrarily or without due regard to the
present or projected future pattern of motor vehicle sales and registrations
within the dealer's market and without having provided the affected dealer with
written notice of the change in the dealer's area of responsibility and a
detailed description of the change in writing by registered or certified mail,
return receipt requested. A franchised new motor vehicle dealer who believes
that a manufacturer, factory branch, distributor, or distributor branch with
whom the dealer has entered into a franchise has violated this subdivisionassigned
or changed the dealer's area of responsibility, is proposing to assign or
change the dealer's area of responsibility arbitrarily or without due regard to
the present or projected future pattern of motor vehicle sales and
registrations within the dealer's market, or failed to provide the dealer with
the notice required under this subdivision may file a petition and have
an evidentiary hearing before the Commissioner as provided in G.S. 20‑301(b)
contesting the franchised new motor vehicle dealer's assigned area of
responsibility. In determining at the evidentiary hearing whether a
manufacturer, factory branch, distributor, or distributor branch has assigned
or changed the dealer's area of responsibility or is proposing to assign or
change the dealer's area of responsibility arbitrarily or without due regard to
the present or projected future pattern of motor vehicle sales and
registrations within the dealer's market, the Commissioner shall take into
consideration the existing circumstances, including all of the following:
a. The dealer's investment of time and money in developing the market for the vehicles and other products and services of the affected manufacturer, factory branch, distributor, or distributor branch within the area of responsibility.
b. The present and future projected traffic patterns and drive times between consumers and the various franchised dealers of the affected manufacturer, factory branch, distributor, or distributor branch who are located within the market.
c. The historical and projected future pattern of new vehicle sales and registrations of the affected manufacturer, factory branch, distributor, or distributor branch within various portions of the area of responsibility and within the market as a whole.
d. If the affected manufacturer, manufacturer branch, distributor, or distributor branch has removed territory from a dealer's area of responsibility or is proposing to remove territory from a dealer's area of responsibility, the projected economic effects, if any, that these changes in the dealer's area of responsibility will have on the petitioning dealer.
e. The projected effects that the changes in the petitioning dealer's area of responsibility that have been made or proposed by the affected manufacturer, manufacturer branch, distributor, or distributor branch will have on the consuming public within the market.
f. The presence or absence of natural geographical obstacles or boundaries, such as mountains and rivers.
g. The proximity of census tracts or other geographic units used by the affected manufacturer, factory branch, distributor, or distributor branch in determining dealers' respective areas of responsibility.
At the evidentiary hearing before the Commissioner, the affected manufacturer, factory branch, distributor, or distributor branch shall have the burden of proving that all portions of its current or proposed area of responsibility for the petitioning franchised new motor vehicle dealer are reasonable in light of the present or projected future pattern of motor vehicle sales and registrations within the franchised new motor vehicle dealer's market. A policy or protocol of a manufacturer, factory branch, distributor, or distributor branch that determines a dealer's area of responsibility based solely or primarily on the proximity of census tracts or other geographic units to its franchised dealers fails to satisfy the burden of proof on the affected manufacturer, factory branch, distributor, or distributor branch under this subdivision. Upon the filing of a petition before the Commissioner under this subdivision, any changes in the petitioning franchised new motor vehicle dealer's area of responsibility that have been proposed by the affected manufacturer, factory branch, distributor, or distributor branch shall be stayed during the pendency of the determination by the Commissioner. If a protest is or has been filed under G.S. 20‑305(5) and the franchised new motor vehicle dealer's area of responsibility is included in the relevant market area under the protest, any protest filed under this subdivision shall be consolidated with that protest for hearing and joint disposition of all of the protests.
SECTION 5. G.S. 20‑305(46) reads as rewritten:
"(46) To require, coerce, or attempt to coerce a dealer located in this State to purchase goods or services of any nature from a vendor selected, identified, or designated by a manufacturer, distributor, affiliate, or captive finance source when the dealer may obtain goods or services of substantially similar quality and design from a vendor selected by the dealer, provided the dealer obtains prior approval from the manufacturer, distributor, affiliate, or captive finance source, for the use of the dealer's selected vendor. Such approval by the manufacturer, distributor, affiliate, or captive finance source may not be unreasonably withheld. For purposes of this subdivision, the term "goods" does not include moveable displays, brochures, and promotional materials containing material subject to the intellectual property rights of a manufacturer or distributor, or special tools as reasonably required by the manufacturer, or parts to be used in repairs under warranty obligations of a manufacturer or distributor. For any tool designated as special or essential, the manufacturer, distributor, or affiliate may recover from the dealer only the actual cost of such tool. In the event the special or essential tool is sold to the dealer through the manufacturer, distributor, or affiliate, and was manufactured or assembled by that manufacturer, distributor, or affiliate, actual cost shall be defined as the cost the manufacturer, distributor, or affiliate paid for the materials together with the cost of labor used in manufacturing or assembling the special or essential tool. In the event the special or essential tool is sold to the dealer through the manufacturer, distributor, or affiliate, but was manufactured or assembled by an entity other than that manufacturer, distributor, or affiliate, actual cost shall be defined as the cost the manufacturer, distributor, or affiliate actually paid for the special or essential tool. In the event the special or essential tool is sold to the dealer by a third party designated, endorsed, or recommended by the manufacturer, distributor, or affiliate, and the price at which the special or essential tool is being offered to the dealer exceeds the cost of the same or similar tool available for purchase by the dealer through another source that will perform substantially all of the functions required by the dealer, the manufacturer, distributor, or affiliate may not prohibit the dealer from purchasing the special or essential tool from the other source. If the manufacturer, distributor, affiliate, or captive finance source claims that a vendor chosen by the dealer cannot supply goods and services of substantially similar quality and design, the dealer may file a protest with the Commissioner. When a protest is filed, the Commissioner shall promptly inform the manufacturer, distributor, affiliate, or captive finance source that a protest has been filed. The Commissioner shall conduct a hearing on the merits of the protest within 90 days following the filing of a response to the protest. The manufacturer, distributor, affiliate, or captive finance source shall bear the burden of proving that the goods or services chosen by the dealer are not of substantially similar quality and design to those required by the manufacturer, distributor, affiliate, or captive finance source."
SECTION 6. G.S. 20‑305.1(a) reads as rewritten:
"(a) Each motor vehicle manufacturer, factory branch, distributor or distributor branch, shall specify in writing to each of its motor vehicle dealers licensed in this State the dealer's obligations for preparation, delivery and warranty service on its products, the schedule of compensation to be paid such dealers for parts, work, and service in connection with warranty service, and the time allowances for the performance of such work and service. In no event shall such schedule of compensation fail to include reasonable compensation for diagnostic work and associated administrative requirements as well as repair service and labor. Time allowances for the performance of warranty work and service shall be reasonable and adequate for the work to be performed. The compensation which must be paid under this section must be reasonable, provided, however, that under no circumstances may the reasonable compensation under this section be in an amount less than the dealer's current retail labor rate and the amount charged to retail customers for the manufacturer's or distributor's original parts for nonwarranty work of like kind, provided such amount is competitive with the retail rates charged for parts and labor by other franchised dealers within the dealer's market. For the purposes of this section, the term "warranty service" includes (i) work to maintain or repair a motor vehicle under a warranty or maintenance plan, extended warranty, certified pre‑owned warranty, or a service contract issued, supplied, recommended, or endorsed by a manufacturer, factory branch, distributor, or distributor branch and (ii) delivery or preparation procedures and repairs to a motor vehicle as a result of a recall, campaign service, authorized goodwill, directive, or bulletin of a manufacturer, factory branch, distributor, or distributor branch."
SECTION 7. G.S. 20‑305.1(a2) reads as rewritten:
"(a2) In calculating the retail rate customarily charged by the dealer for parts and labor, the following work shall not be included in the calculation:
(1) Repairs for manufacturer or distributor special events, specials, or promotional discounts for retail customer repairs.
(2) Parts sold at wholesale or at reduced or specially negotiated rates for insurance repairs.
(3) Engine assemblies.
(4) Routine maintenance not covered under warranty,
such asmaintenance, including fluids, filters, alignments,
flushes, oil changes, brakes, and belts not provided in the course of
repairs.
(5) Nuts, bolts, fasteners, and similar items that do not have an individual part number.
(6) Tires.Tires and vehicle alignments.
(7) Vehicle reconditioning.
(8) Batteries and light bulbs."
SECTION 8. G.S. 20‑305.1(a3) reads as rewritten:
"(a3) If a manufacturer or distributor furnishes a part or component to a dealer, at no cost, to use in performing repairs under a recall, campaign service action, or warranty repair, the manufacturer or distributor shall compensate the dealer for the part or component in the same manner as warranty parts compensation under this section by compensating the dealer the average markup on the cost for the part or component as listed in the manufacturer's or distributor's price schedule less the cost for the part or component. If a manufacturer or distributor requires a dealer to retain, store, or to otherwise not dispose of any part or component removed or replaced by a dealer in the performance of repairs under a recall, campaign service action, or warranty repair, the manufacturer or distributor shall provide reasonable compensation to the dealer for the storage costs of the removed or replaced part or component from the date of the repair up to and including the earlier of the date the manufacturer or distributor permits the dealer to dispose of the part or component or the date the dealer returns the part or component to the manufacturer or distributor at the request of the manufacturer or distributor. For purposes of this subsection, reasonable compensation for storage and handling costs shall be determined by the dealer in accordance with generally accepted accounting principles and shall include (i) the costs for the use of the dealer's facilities for storage and handling of any part or component calculated on a fair market value per square foot basis; (ii) any additional direct and indirect costs incurred by the dealer for storage of the part or component, including the costs of any additional storage facilities incurred by the dealer for storage of the part or component; and (iii) direct and indirect transportation costs related to shipping parts or components to the dealer's storage facilities."
SECTION 9. G.S. 20‑305.1(b3) reads as rewritten:
"(b3) Notwithstanding the terms of any franchise or
other agreement, or the terms of any program, policy, or procedure of any
manufacturer, it shall be unlawful for a manufacturer to take or threaten to
take any adverse action against a dealer located in this State, or to otherwise
discriminate against any dealer located in this State, on the basis that the
dealer sold or leased a motor vehicle to a customer who either exported the
vehicle to a foreign country or who resold the vehicle to a third party, unless
the dealer knew or reasonably should have known that the customer intended
to export or resell the motor vehicle prior to the customer's purchase of the
vehicle from the dealer.on the date of the sale or lease either the name
of the purchaser or lessee appeared on a list of known or suspected exporters
or brokers published by the manufacturer and readily accessible to employees of
the dealer, or the dealer possessed actual knowledge that the purchaser or
lessee intended, at the time of the sale or lease, to export or broker the
vehicle. It shall be unlawful for any manufacturer to take any adverse action
against a dealer located in this State or to otherwise discriminate against any
dealer located in this State on the basis that the dealer failed to ensure that
the purchaser or lessee paid personal property tax on the vehicle purchased or
leased from the dealer, the dealer failed to ensure that the vehicle being
purchased or leased had been permanently registered in this State or in any
other state in which the dealer was not required to ensure that the vehicle's
permanent registration was processed or submitted at the time of the vehicle's
purchase or lease, that a certain number or percentage of the vehicles sold or
leased by a dealer over a specified period of time were exported or brokered,
or that a vehicle sold or leased by the dealer was exported to a foreign
country more than 90 days after the date of sale or lease by the dealer. The
conductadverse action and discrimination prohibited under this
subsection includes, but is not limited to,includes a manufacturer's
actual or threatened:threatened (i) failure or refusal to
allocate, sell, or deliver motor vehicles to the dealer; or (ii)
discrimination against any dealer in the allocation of vehicles; or (iii)
charging back or withholding payments or other compensation or consideration
for which a dealer is otherwise eligible for warranty reimbursement or under a
sales promotion, incentive program, or contest; orcontest, or other
program or policy that would provide any compensation or support for the
dealer; (iv) disqualification of a dealer from participating in or
discrimination against any dealer relating to any sales promotion, incentive
program, or contest; orcontest, or other program or policy that would
provide any compensation or support for the dealer; (v) termination of a franchise.franchise;
or (vi) the imposition of any fine, penalty, chargeback, or other disciplinary
or punitive measure. In any proceeding brought pursuant to this subsection,
there shall be a rebuttable presumption that the dealer, prior to the customer's
purchase of the vehicle, did not know nor should have reasonably knownhave
actual knowledge that the customer intended to export or resell the motor
vehicle, if (i) following the sale, the vehicle is titled,
registered, and, where applicable, taxes paideither temporarily or
permanently registered in any state or territory within the United States
in the name of a customer who was physically present at the dealership at or
prior to the time of sale, and (ii) the dealer did not know, prior to the
consummation of the sale, that the vehicle would be shipped to a foreign
country.sale or in the name of the leasing company that is leasing the
vehicle to the customer. Any audit for sales or leases made to exporters or
brokers shall only be for the 12‑month period immediately preceding the
audit."
SECTION 10. G.S. 20‑305.1(c) reads as rewritten:
"(c) In the event there is a dispute between the
manufacturer, factory branch, distributor, or distributor branch, and the
dealer with respect to any matter referred to in subsection (a), (b), (b1),
(b2), (b3), or (d) of this section, either party may petition the
Commissioner in writing, within 30 days after either party has given written
notice of the dispute to the other, for a hearing on the subject and the
decision of the Commissioner shall be binding on the parties, subject to rights
of judicial review and appeal as provided in Chapter 150B of the General
Statutes; provided, however, that nothing contained herein shall give the
Commissioner any authority as to the content of any manufacturer's or
distributor's warranty. Upon the filing of a petition before the Commissioner
under this subsection, any chargeback to or any payment required of a dealer by
a manufacturer relating to warranty parts or service compensation, or to sales
incentives, service incentives, rebates, or other forms of incentive compensation,compensation,
or the withholding or chargeback of other compensation or support that a dealer
would otherwise be entitled to, shall be stayed during the pendency of the
determination by the Commissioner."
SECTION 11. If any provision of this act or its application is held invalid, the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.
SECTION 12. Section 4 of this act is effective when this act becomes law, but shall not apply to any pending matter that has been the subject of a judicial review hearing pursuant to Chapter 150B of the General Statutes as of the effective date of this act. The remainder of this act is effective when it becomes law and applies to all current and future franchises and other agreements in existence between any new motor vehicle dealer located in this State and a manufacturer or distributor as of the effective date of this act.
