STATE OF OKLAHOMA

1st Session of the 52nd Legislature (2009)

SENATE BILL 979	By:	Brown

AS INTRODUCED

An Act relating to public health and safety; amending 63 O.S. 2001, Sections 4033, 4034, 4037.1, 4037.2, 4041, and 4044, which relate to the Oklahoma Vessel and Motor Registration Act; modifying entity responsible for registration of dealers; creating the Marine Vessel Advisory Committee; providing responsibility of Committee; providing membership and terms; authorizing the Oklahoma Used Motor Vehicle and Parts Commission to appoint members; providing meeting procedures; providing for reimbursement; providing for codification; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY      63 O.S. 2001, Section 4033, is amended to read as follows:
Section 4033.  A.  It shall be unlawful for any person to engage in the business of selling, or to serve in the capacity of, or act as a dealer of new or used vessels, or motors, or new and used vessels, and motors or any combination thereof in this state without first obtaining a license ~~therefor~~ as provided for by the Oklahoma Vessel and Motor Registration Act.  Any person having more than one location where such business is carried on or conducted shall be required to obtain and hold a current license for each such location.
B.  1.  Dealer licenses issued pursuant to this section shall be issued only to persons that prove to the satisfaction of the Oklahoma ~~Tax~~ Used Motor Vehicle and Parts Commission that they are clearly recognizable as bona fide dealers.  Proof of bona fide dealer status shall include, but need not be limited to, the following:
a.	Maintenance of a display area capable of regularly displaying at least three vessels or motors, or a minimum of one thousand two hundred (1,200) square feet, indoors or outdoors,
b.	Annual sales of substantial numbers of new or used vessels or motors.  "Substantial sales" normally means sale of five or more vessels or motors unless the applicant can show unusual circumstances justifying lesser sales,
c.	Consistent identification of the business as a dealer or mercantile establishment in advertising, signs, telephone book listings, and the like.  The dealership must be clearly identifiable as such by any person who visits or deals with it,
d.	Location of dealership in areas where zoning permits such sales and commercial operations,
e.	Regular hours of operation from May 1 to September 1, inclusive, at least five (5) days per week, and
f.	a picture, upon application for a new license, of the business location which includes the selling lot and the office and business sign.
2.  The Oklahoma ~~Tax~~ Used Motor Vehicle and Parts Commission shall issue a license to sell new vessels or motors only to those persons having a dealer agreement to sell new vessels or new motors in this state.
C.  1.  Applications for licenses required to be obtained pursuant to the provisions of this section shall be verified by the oath or affirmation of the applicant and shall be on forms prescribed by the Commission and furnished to such applicants, and shall contain such information as the Commission deems necessary to enable it to fully determine the qualifications and eligibility of the applicant to receive the license requested.  The Commission shall require in such application, or otherwise, information relating to:
a.	the applicant's financial standing,
b.	the applicant's business integrity,
c.	whether the applicant has an established place of business and is primarily engaged in the pursuit, avocation or business for which a license or licenses have been requested,
d.	whether the applicant is able to properly conduct the business for which a license or licenses have been requested, and
e.	such other pertinent information consistent with the safeguarding of the public interest and the public welfare.
All such applications for license or licenses shall be accompanied by the appropriate fee or fees therefor in accordance with the schedule set out in Section 4034 of this title.
2.  In the event any such application is denied and the license for which requested is not issued, the entire license fee shall be returned to the applicant.
3.  All licenses issued under the provisions of the Oklahoma Vessel and Motor Registration Act shall expire on December 31 following the date of issue and shall be nontransferable.  All applications for renewal of a license issued pursuant to the provisions of this section shall be submitted by December 1 of each year, and such license will be issued by January 1.  If applications have not been made for renewal of licenses by December 31 of each year it shall be illegal for any person to sell or to serve in the capacity or act as a dealer.  If after January 31 of each year the license has not been renewed or the renewal paid, then such licensee shall be required to apply for a license as a new applicant.  Motor vehicle license agents will be notified not to accept such dealers' titles until such time as licenses have been issued by the Commission.  Provided, however, such dealers may transfer titles to vessels or motors purchased for resale prior to the expiration of their license.  Such dealer shall provide the purchaser with a copy of the invoice showing purchase of the vessel or motor prior to the expiration of the dealer's license.  Such transfers shall only be allowed within two (2) years of the license expiration.
D.  Application for a dealer's license must show that such dealer has not violated any of the provisions of this section.
E.  The Oklahoma ~~Tax~~ Used Motor Vehicle and Parts Commission may require every person licensed as a dealer, pursuant to the provisions of this subsection, to make a report to the Commission within a period of seven (7) days after the transfer by such person of the legal ownership of every vessel or motor upon a form prescribed and furnished by the Commission, showing the name and address of the purchaser, a description of the vessel or motor, including but not limited to the make, model, year made, permanent vessel number or motor number, as the case might be, the date of the transfer and such other information as the Commission may require, and containing a certificate signed by the seller that the purchaser was given notice at the time of the sale or transfer that the purchaser is required by law to obtain a certificate of title for such vessel or motor from the Commission within thirty (30) calendar days after such sale or transfer.  The Commission may cancel or suspend, in the manner provided by law, the license of any person licensed as a dealer pursuant to the provisions of this section who fails or refuses to comply with the provisions of this section.  Dealers failing to comply with provisions of this section shall be responsible for all taxes due on such sales or on such vessels or motors.
F.  The license of each dealer shall be posted in a conspicuous place in the dealer's place or places of business.
G.  1.  A new dealer's license authorizes a dealer to transfer, purchase and sell new and used vessels and motors.
2.  A used dealer's license authorizes a dealer to transfer, purchase and sell used vessels and motors.
3.  A new dealer's license or a used dealer's license authorizes a dealer to transfer and assign titles and purchase new and used vessels and motors without paying excise tax.
H.  Any dealer agreement executed or renewed on and after the effective date of this act shall comply with the provisions of the Oklahoma Vessel and Motor Registration Act.
SECTION 2.     AMENDATORY      63 O.S. 2001, Section 4034, is amended to read as follows:
Section 4034.  The schedule of license fees to be charged and received by the Oklahoma ~~Tax~~ Used Motor Vehicle and Parts Commission for the licenses issued pursuant to Section 4033 of this title shall be as follows:
1.  For the license issued initially to each dealer of new vessels or new motors, the fee shall be Two Hundred Dollars ($200.00) per location licensed.  In addition to the license fee, a Ten Dollar ($10.00) fee per dealer agreement for each such vessel or motor sold at each location licensed shall be charged.  The annual renewal fee shall be One Hundred Dollars ($100.00) per location per year.  Any changes in the make of vessels or motors sold at any location licensed shall be specified in the renewal application.  A fee of Ten  Dollars ($10.00) per location shall be charged for such additional dealer agreement for each such vessel or motor sold; and
2.  For the license issued initially to each dealer of used vessels or motors, the fee shall be Fifty Dollars ($50.00) per each location licensed with an annual renewal fee of Fifty Dollars ($50.00) per location per year.
SECTION 3.     AMENDATORY      63 O.S. 2001, Section 4037.1, is amended to read as follows:
Section 4037.1  In the event that a dealer seeks to establish a new vessel or new motor dealership or relocate an existing vessel or motor dealership within or into a relevant market area where the same product line is then represented, the dealer shall notify the ~~Tax~~ Oklahoma Used Motor Vehicle and Parts Commission and each new vessel or new motor dealer of such product line in the relevant market area of the intention to establish or relocate a dealership within or into that market area.  The relevant market area is the area within a radius of fifteen (15) miles of the site of the proposed new vessel or new motor dealership.  Within fifteen (15) days of receiving such notice such new vessel or new motor dealer may file with the Commission a protest to the establishing or relocating of the proposed new vessel or new motor dealership.  When such a protest is filed, the Commission shall inform the dealer that a timely protest has been filed, and that the dealer shall not establish or relocate the proposed new vessel or new motor dealership until the Commission has held a hearing, nor thereafter, if the Commission has determined that there is good cause for not permitting such new vessel or new motor dealership.  The manufacturer or factory representative of the same product line may obtain a waiver of protest from each new vessel or new motor dealer of the same product line within that relevant market area.  If a waiver of protest from each dealer within the relevant market area is not attached to the application for the new dealer seeking to establish, the Commission shall render a final decision no later than sixty (60) days after the Commission's receipt of the notice of protest.  In any hearing held pursuant to this section on additional dealerships or relocation of dealerships the new dealer or existing dealer relocating shall have the burden of proof.  For the purposes of this section, the reopening in a relevant market area of a new vessel or new motor dealership that has not been in operation for two (2) years or more shall be deemed the establishment of a new vessel or new motor dealership.  For the purpose of this section, the designation of an additional location in an existing dealership agreement shall be deemed to be the establishment of a new vessel or new motor dealership.
SECTION 4.     AMENDATORY      63 O.S. 2001, Section 4037.2, is amended to read as follows:
Section 4037.2  In determining whether good cause has been established for not entering into or relocating an additional dealership for the same product line, the ~~Tax~~ Oklahoma Used Motor Vehicle and Parts Commission shall take into consideration the existing circumstances, including, but not limited to:
1.  Permanency of the investment of the proposed dealership;
2.  Effect on the retail new vessel or new motor business and the consuming public in the relevant market area;
3.  Whether it is injurious to the public welfare for an additional new vessel or new motor dealership to be established;
4.  Whether the new vessel or new motor dealers of the same line-make in that relevant market area are providing adequate competition and convenient consumer care for the new vessel or new motor and service facilities, equipment, supply of new vessel or new motor parts, and qualified service personnel; and
5.  Whether the establishment of an additional new vessel or new motor dealership would increase competition, and therefore be in the public interest.
SECTION 5.     AMENDATORY      63 O.S. 2001, Section 4041, is amended to read as follows:
Section 4041.  The Oklahoma ~~Tax~~ Used Motor Vehicle and Parts Commission may deny an application for a license, or revoke or suspend a license or impose a fine not to exceed Five Hundred Dollars ($500.00) against a dealer for each day that any provision of this section or Sections 4033 through 4040 of this title is violated or for any of the following reasons:
1.  On satisfactory proof of unfitness of the applicant in any application for any license pursuant to the provisions of the Oklahoma Vessel and Motor Registration Act;
2.  For any material misstatement made by an applicant in any application for any license pursuant to the provisions of the Oklahoma Vessel and Motor Registration Act;
3.  For any failure to comply with any provision of the Oklahoma Vessel and Motor Registration Act or any rule promulgated by the Commission under authority vested in it by the Oklahoma Vessel and Motor Registration Act, Section 4002 et seq. of this title;
4.  A change of condition after license is granted resulting in failure to maintain the qualifications for license;
5.  Being a dealer who:
a.	has required a purchaser of a new vessel or motor, as a condition of sale and delivery thereof, to also purchase special features, appliances, accessories or equipment not desired or requested by the purchaser and installed by the dealer,
b.	uses any false or misleading advertising in connection with his business as such a dealer,
c.	has committed any unlawful act which resulted in the revocation of any similar license in another state,
d.	has failed or refused to perform any written agreement with any retail buyer involving the sale of a vessel or motor,
e.	has been convicted of a crime involving moral turpitude,
f.	has committed a fraudulent act in selling, purchasing, or otherwise dealing in vessels or motors or has misrepresented the terms and conditions of a sale, purchase, or contract for sale or purchase of a vessel or motor or any interest therein including an option to purchase such vessel or motor, or
g.	has failed to meet or maintain the conditions and requirements necessary to qualify for the issuance of a license;
6.  Being a dealer who does not have an established place of business;
7.  Being a new vessel or new motor dealer who:
a.	does not provide for a suitable repair shop separate from the display room with ample space to repair or recondition one or more vessels or motors at the same time, and which is equipped with such parts, tools and equipment as may be requisite for the servicing of vessels or motors in such a manner as to make them comply with the safety laws of this state and to properly fulfill the dealer's or manufacturer's warranty obligation.  Provided that the provisions of this subparagraph shall not apply to:
(1)	mercantile establishments engaged in the selling of vessels and motors if:
(a)	such vessel and motor business does not constitute more than ten percent (10%) of the business of such establishment,
(b)	the vessels sold at such establishment are under fourteen (14) feet in length, and
(c)	the outboard motors sold at such establishment are under ten (10) horsepower, or
(2)	dealers which are engaged solely in the business of selling canoes.  For the purposes of this subsection, "canoe" shall mean a vessel that is long relative to its width, that has curved sides and is tapered to two (2) pointed ends, or is tapered to one (1) pointed end and blunt on the other end, and is generally of traditional shape,
b.	does not hold a dealer agreement in effect with a manufacturer or distributor of new vessels or motors for the sale of the same and is not authorized by the manufacturer or distributor to render predelivery preparation of such vessels or motors sold to purchasers and to perform any authorized post‑sale work pursuant to the manufacturer's or distributor's warranty, or
c.	does not properly service a new vessel or motor before delivery of same to the original purchaser thereof.
SECTION 6.     AMENDATORY      63 O.S. 2001, Section 4044, is amended to read as follows:
Section 4044.  The Oklahoma ~~Tax~~ Used Motor Vehicle and Parts Commission shall issue permits for displays and sales of new vessels or motors which are held off the premises of a licensed dealer thereof as follows:
1.  A promotion by an individual new vessel or motor dealer which is held off the premises of such dealer and at which sales activities are conducted may be held only under the following conditions:
a.	the dealer participates in an advertised vessel or motor show in which at least two other vessel or motor dealers are participating,
b.	application for a permit for a sales promotion by an individual dealer shall be made to the Commission at least seven (7) calendar days prior to such promotion, and such permit shall be issued by the Commission upon payment of a fee of Fifty Dollars ($50.00) per event,
c.	the permit shall be valid for a period not to exceed fourteen (14) consecutive days, and
d.	the Commission shall not issue a permit to a dealer if he has obtained a permit within the past forty-five (45) calendar days for the same location;
2.  A dealer may not be denied a permit on the grounds that the sales promotion is to be held within the relevant market area of another dealer of the same product line;
3.  A dealer who fails to obtain such a permit shall be subject to the penalties and fines provided for in Section 4041 of Title 63 of the Oklahoma Statutes.
Provided, a permit shall not be required pursuant to the provisions of this section for a display or sale of new vessels or motors which is held off the premises of a licensed dealer if the display or sale is held within a twenty-five (25) mile radius of the location of the dealership; and
4.  Prior to the completion of a sale at an off-premises location, the dealer shall be required to disclose in writing to any person purchasing a new vessel or motor the following information:
a.	that location of the dealership making the sale, and
b.	that other dealers may not be willing to do repair or warranty work on vessels not purchased at their dealership.
Any salesperson working at an off-premises location shall not wear any identification or clothing indicating an affiliation with another retailer.
SECTION 7.     NEW LAW     A new section of law to be codified in the Oklahoma Statutes as Section 4045 of Title 63, unless there is created a duplication in numbering, reads as follows:
A.  There is hereby created the Marine Vessel Advisory Committee.  The Committee shall assist and advise the Oklahoma Used Motor Vehicle and Parts Commission on issues in the marine industry and shall advise the Commission on all matters pertaining to the licensure of vessel and/or motor dealers.
B.  The Committee shall be composed of four appointed members, who are licensed new and used vessel dealers pursuant to Sections 4033 et seq. of Title 63.  A fifth member shall be an ex officio member of the Commission designated from their membership.  Two members shall serve initial terms until September 1, 2010.  One member shall serve an initial term until September 1, 2011.  One member shall serve an initial term until September 1, 2012.  All terms thereafter shall be for a period of three (3) years for each successive appointment.  All vacancies shall be appointed in the same manner as the initial appointment.
C.  The Commission shall appoint the Committee members pursuant to rules to be adopted by the Commission and at a minimum the rules shall include a method of appointment that provides for representation from all geographical portions of the state as practicable as possible.  All members shall be residents of this state.
D.  The Committee shall meet at least annually.  At the initial meeting of the Committee, members shall elect a chair.  The chair shall represent the Committee at all meetings of the Commission.  A majority of the members of the Committee constitutes a quorum.
E.  Each member of the Committee shall not receive compensation for their duties, but shall be reimbursed for their reasonable and necessary expenses as provided for in the State Travel Reimbursement Act.
SECTION 8.  This act shall become effective November 1, 2009.

52-1-354	MD	1/15/2009 2:00:56 PM