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Lemon Law - Florida
Lemon Law
Lemon Law - "Lemon
law" is that body of state law which defines an automobile
owners rights when the manufacturer is not able to repair the
automobile within the limits specified. In
such cases, the automobile is referred to as a "lemon",
and is subject to the conditions of the state lemon law.
Your Lemon Law:
Disclaimer:
These pages are created to inform and educate the public about lemon
law and under the lemon law in your state. They are not and
should not be considered legal opinions or advice as to whether you
have rights under lemon law or whether you should pursue "a
lemon law case". If after reading this information,
you believe you qualify, you should seek the advice and counsel of
an attorney specializing in lemon law in your state. Remember
that each state's lemon laws vary.
681.10 Short title.
This chapter shall be known and may
be cited as the "Motor Vehicle Warranty Enforcement Act."
681.101 Legislative intent.
The Legislature recognizes that a
motor vehicle is a major consumer purchase and that a defective
motor vehicle undoubtedly creates a hardship for the consumer. The
Legislature further recognizes that a duly franchised motor vehicle
dealer is an authorized service agent of the manufacturer. It is the
intent of the Legislature that a good faith motor vehicle warranty
complaint by a consumer be resolved by the manufacturer within a
specified period of time; however, it is not the intent of the
Legislature that a consumer establish the presumption of a
reasonable number of attempts as to each manufacturer that provides
a warranty directly to the consumer. It is further the intent of the
Legislature to provide the statutory procedures whereby a consumer
may receive a replacement motor vehicle, or a full refund, for a
motor vehicle which cannot be brought into conformity with the
warranty provided for in this chapter. However, nothing in this
chapter shall in any way limit or expand the rights or remedies
which are otherwise available to a consumer under any other law.
681.102 Definitions.
As used in this chapter, the term:
(1) "Authorized service
agent" means any person, including a franchised motor vehicle
dealer, who is authorized by the manufacturer to service motor
vehicles. In the case of a recreational vehicle when there are two
or more manufacturers, an authorized service agent for any
individual manufacturer is any person, including a franchised motor
vehicle dealer, who is authorized to service the items warranted by
that manufacturer. The term does not include a rental car company
authorized to repair rental vehicles.
(2) "Board" means
the Florida New Motor Vehicle Arbitration Board.
(3) "Collateral
charges" means those additional charges to a consumer wholly
incurred as a result of the acquisition of the motor vehicle. For
the purposes of this chapter, collateral charges include, but are
not limited to, manufacturer-installed or agent-installed items or
service charges, earned finance charges, sales taxes, and title
charges.
(4) "Consumer"
means the purchaser, other than for purposes of resale, or the
lessee, of a motor vehicle primarily used for personal, family, or
household purposes; any person to whom such motor vehicle is
transferred for the same purposes during the duration of the Lemon
Law rights period; and any other person entitled by the terms of the
warranty to enforce the obligations of the warranty.
(5) "Days" means
calendar days.
(6) "Department"
means the Department of Legal Affairs.
(7) "Division"
means the Division of Consumer Services of the Department of
Agriculture and Consumer Services.
(8) "Incidental
charges" means those reasonable costs to the consumer which are
directly caused by the nonconformity of the motor vehicle.
(9) "Lease price"
means the aggregate of the capitalized cost, as defined in s.
521.003(2), and each of the following items to the extent not
included in the capitalized cost:
(a) Lessor's earned rent
charges through the date of repurchase.
(b) Collateral charges, if
applicable.
(c) Any fee paid to
another to obtain the lease.
(d) Any insurance or other
costs expended by the lessor for the benefit of the lessee.
(e) An amount equal to
state and local sales taxes, not otherwise included as collateral
charges, paid by the lessor when the vehicle was initially
purchased.
(10) "Lemon Law rights
period" means the period ending 24 months after the date of the
original delivery of a motor vehicle to a consumer.
(11) "Lessee"
means any consumer who leases a motor vehicle for 1 year or more
pursuant to a written lease agreement which provides that the lessee
is responsible for repairs to such motor vehicle or any consumer who
leases a motor vehicle pursuant to a lease-purchase agreement.
(12) "Lessee cost"
means the aggregate deposit and rental payments previously paid to
the lessor for the leased vehicle but excludes debt from any other
transaction.
(13) "Lessor"
means a person who holds title to a motor vehicle that is leased to
a lessee under a written lease agreement or who holds the lessor's
rights under such agreement.
(14)
"Manufacturer" means any person, whether a resident or
nonresident of this state, who manufactures or assembles motor
vehicles, or who manufactures or assembles chassis for recreational
vehicles, or who manufactures or installs on previously assembled
truck or recreational vehicle chassis special bodies or equipment
which, when installed, forms an integral part of the motor vehicle,
a distributor as defined in s. 320.60(5), or an importer as defined
in s. 320.60(7). A dealer as defined in s. 320.60(11)(a) shall not
be deemed to be a manufacturer, distributor, or importer as provided
in this section.
(15) "Motor
vehicle" means a new vehicle, propelled by power other than
muscular power, which is sold in this state to transport persons or
property, and includes a recreational vehicle or a vehicle used as a
demonstrator or leased vehicle if a manufacturer's warranty was
issued as a condition of sale, or the lessee is responsible for
repairs, but does not include vehicles run only upon tracks,
off-road vehicles, trucks over 10,000 pounds gross vehicle weight,
motorcycles, mopeds, or the living facilities of recreational
vehicles. "Living facilities of recreational vehicles" are
those portions designed, used, or maintained primarily as living
quarters and include, but are not limited to, the flooring, plumbing
system and fixtures, roof air conditioner, furnace, generator,
electrical systems other than automotive circuits, the side entrance
door, exterior compartments, and windows other than the windshield
and driver and front passenger windows.
(16)
"Nonconformity" means a defect or condition that
substantially impairs the use, value, or safety of a motor vehicle,
but does not include a defect or condition that results from an
accident, abuse, neglect, modification, or alteration of the motor
vehicle by persons other than the manufacturer or its authorized
service agent.
(17) "Procedure"
means an informal dispute-settlement procedure established by a
manufacturer to mediate and arbitrate motor vehicle warranty
disputes.
(18) "Program"
means the mediation and arbitration pilot program for recreational
vehicles established in this chapter.
(19) "Purchase
price" means the cash price as defined in s. 520.31(1),
inclusive of any allowance for a trade-in vehicle, but excludes debt
from any other transaction. "Any allowance for a trade-in
vehicle" means the net trade-in allowance as reflected in the
purchase contract or lease agreement if acceptable to the consumer
and manufacturer. If such amount is not acceptable to the consumer
and manufacturer, then the trade-in allowance shall be an amount
equal to 100 percent of the retail price of the trade-in vehicle as
reflected in the NADA Official Used Car Guide (Southeastern Edition)
or NADA Recreation Vehicle Appraisal Guide, whichever is applicable,
in effect at the time of the trade-in. The manufacturer shall be
responsible for providing the applicable NADA book.
(20) "Reasonable offset
for use" means the number of miles attributable to a consumer
up to the date of a settlement agreement or arbitration hearing,
whichever occurs first, multiplied by the purchase price of the
vehicle and divided by 120,000, except in the case of a recreational
vehicle, in which event it shall be divided by 60,000.
(21) "Recreational
vehicle" means a motor vehicle primarily designed to provide
temporary living quarters for recreational, camping, or travel use,
but does not include a van conversion.
(22) "Replacement motor
vehicle" means a motor vehicle which is identical or reasonably
equivalent to the motor vehicle to be replaced, as the motor vehicle
to be replaced existed at the time of acquisition. "Reasonably
equivalent to the motor vehicle to be replaced" means the
manufacturer's suggested retail price of the replacement vehicle
shall not exceed 105 percent of the manufacturer's suggested retail
price of the motor vehicle to be replaced. In the case of a
recreational vehicle, "reasonably equivalent to the motor
vehicle to be replaced" means the retail price of the
replacement vehicle shall not exceed 105 percent of the purchase
price of the recreational vehicle to be replaced.
(23) "Warranty"
means any written warranty issued by the manufacturer, or any
affirmation of fact or promise made by the manufacturer, excluding
statements made by the dealer, in connection with the sale of a
motor vehicle to a consumer which relates to the nature of the
material or workmanship and affirms or promises that such material
or workmanship is free of defects or will meet a specified level of
performance.
681.103 Duty of manufacturer to
conform a motor vehicle to the warranty.
(1) If a motor vehicle
does not conform to the warranty and the consumer first reports
the problem to the manufacturer or its authorized service agent
during the Lemon Law rights period, the manufacturer or its
authorized service agent shall make such repairs as are necessary
to conform the vehicle to the warranty, irrespective of whether
such repairs are made after the expiration of the Lemon Law rights
period. Such repairs shall be at no cost to the consumer if made
during the term of the manufacturer's written express warranty.
Nothing in this paragraph shall be construed to grant an extension
of the Lemon Law rights period or to expand the time within which
a consumer must file a claim under this chapter.
(2) Each manufacturer
shall provide to its consumers conspicuous notice of the address
and phone number for its zone, district, or regional office for
this state in the written warranty or owner's manual. By January 1
of each year, each manufacturer shall forward to the Department of
Legal Affairs a copy of the owner's manual and any written
warranty for each make and model of motor vehicle that it sells in
this state.
(3) At the time of
acquisition, the manufacturer shall inform the consumer clearly
and conspicuously in writing how and where to file a claim with a
certified procedure if such procedure has been established by the
manufacturer pursuant to s. 681.108. The manufacturer shall
provide to the dealer and, at the time of acquisition, the dealer
shall provide to the consumer a written statement that explains
the consumer's rights under this chapter. The written statement
shall be prepared by the Department of Legal Affairs and shall
contain a toll-free number for the division that the consumer can
contact to obtain information regarding the consumer's rights and
obligations under this chapter or to commence arbitration. If the
manufacturer obtains a signed receipt for timely delivery of
sufficient quantities of this written statement to meet the
dealer's vehicle sales requirements, it shall constitute prima
facie evidence of compliance with this subsection by the
manufacturer. The consumer's signed acknowledgment of receipt of
materials required under this subsection shall constitute prima
facie evidence of compliance by the manufacturer and dealer. The
form of the acknowledgments shall be approved by the Department of
Legal Affairs, and the dealer shall maintain the consumer's signed
acknowledgment for 3 years.
(4) A manufacturer,
through its authorized service agent, shall provide to the
consumer, each time the consumer's motor vehicle is returned after
being examined or repaired under the warranty, a fully itemized,
legible statement or repair order indicating any test drive
performed and the approximate length of the test drive, any
diagnosis made, and all work performed on the motor vehicle
including, but not limited to, a general description of the
problem reported by the consumer or an identification of the
defect or condition, parts and labor, the date and the odometer
reading when the motor vehicle was submitted for examination or
repair, and the date when the repair or examination was completed.
681.104 Nonconformity of motor
vehicles.
(1)
(a) After three attempts
have been made to repair the same nonconformity, the consumer
shall give written notification, by registered or express mail
to the manufacturer, of the need to repair the nonconformity to
allow the manufacturer a final attempt to cure the
nonconformity. The manufacturer shall have 10 days, commencing
upon receipt of such notification, to respond and give the
consumer the opportunity to have the motor vehicle repaired at a
reasonably accessible repair facility within a reasonable time
after the consumer's receipt of the response. The manufacturer
shall have 10 days, except in the case of a recreational
vehicle, in which event the manufacturer shall have 45 days,
commencing upon the delivery of the motor vehicle to the
designated repair facility by the consumer, to conform the motor
vehicle to the warranty. If the manufacturer fails to respond to
the consumer and give the consumer the opportunity to have the
motor vehicle repaired at a reasonably accessible repair
facility or perform the repairs within the time periods
prescribed in this subsection, the requirement that the
manufacturer be given a final attempt to cure the nonconformity
does not apply.
(b) If the motor vehicle
is out of service by reason of repair of one or more
nonconformities by the manufacturer or its authorized service
agent for a cumulative total of 15 or more days, exclusive of
downtime for routine maintenance prescribed by the owner's
manual, the consumer shall so notify the manufacturer in writing
by registered or express mail to give the manufacturer or its
authorized service agent an opportunity to inspect or repair the
vehicle.
(2)
(a) If the manufacturer,
or its authorized service agent, cannot conform the motor
vehicle to the warranty by repairing or correcting any
nonconformity after a reasonable number of attempts, the
manufacturer, within 40 days, shall repurchase the motor vehicle
and refund the full purchase price to the consumer, less a
reasonable offset for use, or, in consideration of its receipt
of payment from the consumer of a reasonable offset for use,
replace the motor vehicle with a replacement motor vehicle
acceptable to the consumer. The refund or replacement must
include all reasonably incurred collateral and incidental
charges. However, the consumer has an unconditional right to
choose a refund rather than a replacement motor vehicle. Upon
receipt of such refund or replacement, the consumer, lien
holder, or lessor shall furnish to the manufacturer clear title
to and possession of the motor vehicle.
(b) Refunds shall be
made to the consumer and lien holder of record, if any, as their
interests may appear. If applicable, refunds shall be made to
the lessor and lessee as follows: The lessee shall receive the
lessee cost and the lessor shall receive the lease price less
the lessee cost. A penalty for early lease termination may not
be assessed against a lessee who receives a replacement motor
vehicle or refund under this chapter. The Department of Revenue
shall refund to the manufacturer any sales tax which the
manufacturer refunded to the consumer, lien holder, or lessor
under this section, if the manufacturer provides to the
department a written request for a refund and evidence that the
sales tax was paid when the vehicle was purchased and that the
manufacturer refunded the sales tax to the consumer, lien
holder, or lessor.
(3) It is presumed that a
reasonable number of attempts have been undertaken to conform a
motor vehicle to the warranty if, during the Lemon Law rights
period, either:
(a) The same
nonconformity has been subject to repair at least three times by
the manufacturer or its authorized service agent, plus a final
attempt by the manufacturer to repair the motor vehicle if
undertaken as provided for in paragraph (1)(a), and such
nonconformity continues to exist; or
(b) The motor vehicle
has been out of service by reason of repair of one or more
nonconformities by the manufacturer, or its authorized service
agent, for a cumulative total of 30 or more days, 60 or more
days in the case of a recreational vehicle, exclusive of
downtime for routine maintenance prescribed by the owner's
manual. The manufacturer or its authorized service agent must
have had at least one opportunity to inspect or repair the
vehicle following receipt of the notification as provided in
paragraph (1)(b). The 30-day period, or 60-day period in the
case of a recreational vehicle, may be extended by any period of
time during which repair services are not available to the
consumer because of war, invasion, strike, fire, flood, or
natural disaster.
(4) It is an affirmative
defense to any claim under this chapter that:
(a) The alleged
nonconformity does not substantially impair the use, value, or
safety of the motor vehicle;
(b) The nonconformity is
the result of an accident, abuse, neglect, or unauthorized
modifications or alterations of the motor vehicle by persons
other than the manufacturer or its authorized service agent; or
(c) The claim by the
consumer was not filed in good faith.
Any other affirmative defense allowed by law may be raised
against the claim.
681.106 Bad faith claims.
Any claim by a consumer which is
found by the court to have been filed in bad faith or solely for the
purpose of harassment, or in complete absence of a justiciable issue
of either law or fact raised by the consumer, shall result in the
consumer being liable for all costs and reasonable attorney's fees
incurred by the manufacturer, or its agent, as a direct result of
the bad faith claim.
681.108 Dispute-settlement
procedures.
(1) If a manufacturer has
established a procedure, which the division has certified as
substantially complying with the provisions of 16 C.F.R. part 703,
in effect October 1, 1983, and with the provisions of this chapter
and the rules adopted under this chapter, and has informed the
consumer how and where to file a claim with such procedure
pursuant to s. 681.103(3), the provisions of s. 681.104(2) apply
to the consumer only if the consumer has first resorted to such
procedure. The decision makers for a certified procedure shall, in
rendering decisions, take into account all legal and equitable
factors germane to a fair and just decision, including, but not
limited to, the warranty; the rights and remedies conferred under
16 C.F.R. part 703, in effect October 1, 1983; the provisions of
this chapter; and any other equitable considerations appropriate
under the circumstances. Decision makers and staff of a procedure
shall be trained in the provisions of this chapter and in 16
C.F.R. part 703, in effect October 1, 1983. In an action brought
by a consumer concerning an alleged nonconformity, the decision
that results from a certified procedure is admissible in evidence.
(2) A manufacturer may
apply to the division for certification of its procedure. After
receipt and evaluation of the application, the division shall
certify the procedure or notify the manufacturer of any
deficiencies in the application or the procedure.
(3) A certified procedure
or a procedure of an applicant seeking certification shall submit
to the division a copy of each settlement approved by the
procedure or decision made by a decision maker within 30 days
after the settlement is reached or the decision is rendered. The
decision or settlement must contain at a minimum the:
- Name and address of the
consumer;
- Name of the manufacturer and
address of the dealership from which the motor vehicle was
purchased;
- Date the claim was received
and the location of the procedure office that handled the
claim;
- Relief requested by the
consumer;
- Name of each decision maker
rendering the decision or person approving the settlement;
- Statement of the terms of the
settlement or decision;
- Date of the settlement or
decision; and
- Statement of whether the
decision was accepted or rejected by the consumer.
(4) Any manufacturer
establishing or applying to establish a certified procedure must
file with the division a copy of the annual audit required under
the provisions of 16 C.F.R. part 703, in effect October 1, 1983,
together with any additional information required for purposes of
certification, including the number of refunds and replacements
made in this state pursuant to the provisions of this chapter by
the manufacturer during the period audited.
(5) The division shall
review each certified procedure at least annually, prepare an
annual report evaluating the operation of certified procedures
established by motor vehicle manufacturers and procedures of
applicants seeking certification, and, for a period not to exceed
1 year, shall grant certification to, or renew certification for,
those manufacturers whose procedures substantially comply with the
provisions of 16 C.F.R. part 703, in effect October 1, 1983, and
with the provisions of this chapter and rules adopted under this
chapter. If certification is revoked or denied, the division shall
state the reasons for such action. The reports and records of
actions taken with respect to certification shall be public
records.
(6) A manufacturer whose
certification is denied or revoked is entitled to a hearing
pursuant to chapter 120.
(7) If federal preemption
of state authority to regulate procedures occurs, the provisions
of subsection (1) concerning prior resort do not apply.
(8) The division shall
adopt rules to implement this section.
681.109 Florida New Motor
Vehicle Arbitration Board.
Dispute eligibility.
(1) If a manufacturer has
a certified procedure, a consumer claim arising during the Lemon
Law rights period must be filed with the certified procedure no
later than 60 days after the expiration of the Lemon Law rights
period. If a decision is not rendered by the certified procedure
within 40 days of filing, the consumer may apply to the division
to have the dispute removed to the board for arbitration.
(2) If a manufacturer has
a certified procedure, a consumer claim arising during the Lemon
Law rights period must be filed with the certified procedure no
later than 60 days after the expiration of the Lemon Law rights
period. If a consumer is not satisfied with the decision or the
manufacturer's compliance therewith, the consumer may apply to the
division to have the dispute submitted to the board for
arbitration. A manufacturer may not seek review of a decision made
under its procedure.
(3) If a manufacturer has
no certified procedure or if a certified procedure does not have
jurisdiction to resolve the dispute, a consumer may apply directly
to the division to have the dispute submitted to the board for
arbitration.
(4) A consumer must
request arbitration before the board with respect to a claim
arising during the Lemon Law rights period no later than 60 days
after the expiration of the Lemon Law rights period, or within 30
days after the final action of a certified procedure, whichever
date occurs later.
(5) The division shall
screen all requests for arbitration before the board to determine
eligibility. The consumer's request for arbitration before the
board shall be made on a form prescribed by the department. The
division shall forward to the board all disputes that the division
determines are potentially entitled to relief under this chapter.
(6) The division may
reject a dispute that it determines to be fraudulent or outside
the scope of the board's authority. Any dispute deemed by the
division to be ineligible for arbitration by the board due to
insufficient evidence may be reconsidered upon the submission of
new information regarding the dispute. Following a second review,
the division may reject a dispute if the evidence is clearly
insufficient to qualify for relief. Any dispute rejected by the
division shall be forwarded to the department and a copy shall be
sent by registered mail to the consumer and the manufacturer,
containing a brief explanation as to the reason for rejection.
(7) If the division
rejects a dispute, the consumer may file a lawsuit to enforce the
remedies provided under this chapter. In any civil action arising
under this chapter and relating to a matter considered by the
division, any determination made to reject a dispute is admissible
in evidence.
(8) The department shall
have the authority to adopt reasonable rules to carry out the
provisions of this section.
681.1095 Florida New Motor
Vehicle Arbitration Board.
Creation and function.
(1) There is established
within the Department of Legal Affairs, the Florida New Motor
Vehicle Arbitration Board, consisting of members appointed by the
Attorney General for an initial term of 1 year. Board members may
be reappointed for additional terms of 2 years. Each board member
is accountable to the Attorney General for the performance of the
member's duties and is exempt from civil liability for any act or
omission which occurs while acting in the member's official
capacity. The Department of Legal Affairs shall defend a member in
any action against the member or the board which arises from any
such act or omission. The Attorney General may establish as many
regions of the board as necessary to carry out the provisions of
this chapter.
(2) The boards shall hear
cases in various locations throughout the state so any consumer
whose dispute is approved for arbitration by the division may
attend an arbitration hearing at a reasonably convenient location
and present a dispute orally. Hearings shall be conducted by
panels of three board members assigned by the department. A
majority vote of the three-member board panel shall be required to
render a decision. Arbitration proceedings under this section
shall be open to the public on reasonable and nondiscriminatory
terms.
(3) Each region of the
board shall consist of up to eight members. The members of the
board shall construe and apply the provisions of this chapter, and
rules adopted thereunder, in making their decisions. An
administrator and a secretary shall be assigned to each board by
the Department of Legal Affairs. At least one member of each board
must be a person with expertise in motor vehicle mechanics. A
member must not be employed by a manufacturer or a franchised
motor vehicle dealer or be a staff member, a decision maker, or a
consultant for a procedure. Board members shall be trained in the
application of this chapter and any rules adopted under this
chapter, shall be reimbursed for travel expenses pursuant to s.
112.061, and shall be compensated at a rate or wage prescribed by
the Attorney General.
(4) Before filing a civil
action on a matter subject to s. 681.104, the consumer must first
submit the dispute to the division, and to the board if such
dispute is deemed eligible for arbitration.
(5) Manufacturers shall
submit to arbitration conducted by the board if such arbitration
is requested by a consumer and the dispute is deemed eligible for
arbitration by the division pursuant to s. 681.109.
(6) The board shall hear
the dispute within 40 days and render a decision within 60 days
after the date the request for arbitration is approved. The board
may continue the hearing on its own motion or upon the request of
a party for good cause shown. A request for continuance by the
consumer constitutes waiver of the time periods set forth in this
subsection. The Department of Legal Affairs, at the board's
request, may investigate disputes, and may issue subpoenas for the
attendance of witnesses and for the production of records,
documents, and other evidence before the board. The failure of the
board to hear a dispute or render a decision within the prescribed
periods does not invalidate the decision.
(7) At all arbitration
proceedings, the parties may present oral and written testimony,
present witnesses and evidence relevant to the dispute,
cross-examine witnesses, and be represented by counsel. The board
may administer oaths or affirmations to witnesses and inspect the
vehicle if requested by a party or if the board deems such
inspection appropriate.
(8) The board shall grant
relief, if a reasonable number of attempts have been undertaken to
correct a nonconformity or nonconformities.
(9) The decision of the
board shall be sent by registered mail to the consumer and the
manufacturer, and shall contain written findings of fact and
rationale for the decision. If the decision is in favor of the
consumer, the manufacturer must, within 40 days after receipt of
the decision, comply with the terms of the decision. Compliance
occurs on the date the consumer receives delivery of an acceptable
replacement motor vehicle or the refund specified in the
arbitration award. In any civil action arising under this chapter
and relating to a dispute arbitrated before the board, any
decision by the board is admissible in evidence.
(10) A decision is final
unless appealed by either party. A petition to the circuit court
to appeal a decision must be made within 30 days after receipt of
the decision. The petition shall be filed in the county where the
consumer resides, or where the motor vehicle was acquired, or
where the arbitration hearing was conducted. Within 7 days after
the petition has been filed, the appealing party must send a copy
of the petition to the department. If the department does not
receive notice of such petition within 40 days after the
manufacturer's receipt of a decision in favor of the consumer, and
the manufacturer has neither complied with, nor has petitioned to
appeal such decision, the department may apply to the circuit
court to seek imposition of a fine up to $1,000 per day against
the manufacturer until the amount stands at twice the purchase
price of the motor vehicle, unless the manufacturer provides clear
and convincing evidence that the delay or failure was beyond its
control or was acceptable to the consumer as evidenced by a
written statement signed by the consumer. If the manufacturer
fails to provide such evidence or fails to pay the fine, the
department shall initiate proceedings against the manufacturer for
failure to pay such fine. The proceeds from the fine herein
imposed shall be placed in the Motor Vehicle Warranty Trust Fund
in the department for implementation and enforcement of this
chapter. If the manufacturer fails to comply with the provisions
of this subsection, the court shall affirm the award upon
application by the consumer.
(11) All provisions in
this section and s. 681.109 pertaining to compulsory arbitration
before the board, the dispute eligibility screening by the
division, the proceedings and decisions of the board, and any
appeals thereof, are exempt from the provisions of chapter 120.
(12) An appeal of a
decision by the board to the circuit court by a consumer or a
manufacturer shall be by trial de novo. In a written petition to
appeal a decision by the board, the appealing party must state the
action requested and the grounds relied upon for appeal. Within 30
days of final disposition of the appeal, the appealing party shall
furnish the department with notice of such disposition and, upon
request, shall furnish the department with a copy of the order or
judgment of the court.
(13) If a decision of the
board in favor of the consumer is upheld by the court, recovery by
the consumer shall include the pecuniary value of the award,
attorney's fees incurred in obtaining confirmation of the award,
and all costs and continuing damages in the amount of $25 per day
for each day beyond the 40-day period following the manufacturer's
receipt of the board's decision. If a court determines that the
manufacturer acted in bad faith in bringing the appeal or brought
the appeal solely for the purpose of harassment or in complete
absence of a justiciable issue of law or fact, the court shall
double, and may triple, the amount of the total award.
(14) When a judgment
affirms a decision by the board in favor of a consumer, appellate
review may be conditioned upon payment by the manufacturer of the
consumer's attorney's fees and giving security for costs and
expenses resulting from the review period.
(15) The department shall
maintain records of each dispute submitted to the board, and the
program, including an index of motor vehicles by year, make, and
model, and shall compile aggregate annual statistics for all
disputes submitted to, and decided by, the board, as well as
annual statistics for each manufacturer that include, but are not
limited to, the value, if applicable, and the number and percent
of:
(a) Replacement motor
vehicle requests;
(b) Purchase price
refund requests;
(c) Replacement motor
vehicles obtained in prehearing settlements;
(d) Purchase price
refunds obtained in prehearing settlements;
(e) Replacement motor
vehicles awarded in arbitration;
(f) Purchase price
refunds awarded in arbitration;
(g) Board decisions
neither complied with in 40 days nor petitioned for appeal
within 30 days;
(h) Board decisions
appealed;
(i) Appeals affirmed by
the court; and
(j) Appeals found by the
court to be brought in bad faith or solely for the purpose of
harassment.
The statistics compiled under this subsection are public
information.
(16) When requested by the
department, a manufacturer must verify the settlement terms for
disputes that are approved for arbitration but are not decided by
the board.
681.1096 Pilot RV Mediation and
Arbitration Program.
Creation and qualifications.
(1) This section and s.
681.1097 shall apply to disputes determined eligible under this
chapter involving recreational vehicles acquired on or after
October 1, 1997, and shall remain in effect until September 30,
2001, at which time recreational vehicle disputes shall be subject
to the provisions of ss. 681.109 and 681.1095. The Attorney
General shall report annually to the President of the Senate, the
Speaker of the House of Representatives, the Minority Leader of
each house of the Legislature, and appropriate legislative
committees regarding the efficiency and cost-effectiveness of the
pilot program.
(2) Each manufacturer of a
recreational vehicle involved in a dispute that is determined
eligible under this chapter, including chassis and component
manufacturers which separately warrant the chassis and components
and which otherwise meet the definition of manufacturer set forth
in s. 681.102(14), shall participate in a mediation and
arbitration program that is deemed qualified by the department.
(3) In order to be deemed
qualified by the department, the mediation and arbitration program
must, at a minimum, meet the following requirements:
(a) The program must be
administered by an administrator and staff that is sufficiently
insulated from the manufacturer to ensure impartial mediation
and arbitration services.
(b) Program
administration fees must be paid by the manufacturer and no such
fees shall be charged to a consumer.
(c) The program must be
adequately staffed at a level sufficient to ensure the provision
of fair and expeditious dispute resolution services.
(d) Program mediators
and arbitrators must be sufficiently insulated from a
manufacturer to ensure the provision of impartial mediation and
arbitration of disputes.
(e) Program mediators
and arbitrators shall not be employed by a manufacturer or a
motor vehicle dealer.
(f) Program mediators
must complete a Florida Supreme Court certified circuit or
county mediation training program, or other mediation training
program approved by the department, in addition to a minimum of
one-half day of training on this chapter conducted by the
department.
(g) Program mediators
must comply with the Model Standards of Conduct for Mediators
issued by the American Arbitration Association, the Dispute
Resolution Section of the American Bar Association, and the
Society of Professionals in Dispute Resolution.
(h) Program arbitrators
must complete a Florida Supreme Court certified circuit or
county arbitration program, or other arbitration training
program approved by the department, in addition to a minimum of
1 day of training in the application of this chapter and any
rules adopted thereunder conducted by the department.
(i) Program arbitrators
must comply with the Code of Ethics for Arbitrators in
Commercial Disputes published by the American Arbitration
Association and the American Bar Association in 1977 and as
amended.
(j) Program arbitrators
must construe and apply the provisions of this chapter and rules
adopted thereunder in making decisions.
(k) The program must
complete all mediation and arbitration of an eligible consumer
claim within 70 days of the program administrator's receipt of
the claim from the department. Failure of the program to
complete all proceedings within the prescribed period will not
invalidate any settlement agreement or arbitration decision.
(l) Mediation
conferences and arbitration proceedings must be held at
reasonably convenient locations within the state so as to enable
a consumer to attend and present a dispute orally.
(4) The department shall
monitor the program for compliance with this chapter. If the
program is determined not qualified or if qualification is
revoked, then the involved manufacturer shall be required to
submit to arbitration conducted by the board if such arbitration
is requested by a consumer and the dispute is deemed eligible for
arbitration by the division pursuant to s. 681.109.
(5) If a program is
determined not qualified or if qualification is revoked, the
involved manufacturer shall be notified by the department of any
deficiencies in the program and informed that it is entitled to a
hearing pursuant to chapter 120.
(6) The program
administrator, mediators, and arbitrators are exempt from civil
liability arising from any act or omission in connection with any
mediation or arbitration conducted under this chapter.
(7) The program
administrator shall maintain records of each dispute submitted to
the program, including the recordings of arbitration hearings. All
records maintained by the program under this chapter shall be
public records and shall be available for inspection by the
department upon reasonable notice. The records for disputes closed
as of September 30 of each year shall be turned over to the
department by the program administrator by no later than October
30 of the same year, unless a later date is specified by the
department.
(8) The department shall
have the authority to adopt reasonable rules to carry out the
provisions of this section.
681.1097 RV Pilot Mediation and
Arbitration Program.
Dispute eligibility and program
function.
(1) Before filing a civil
action on a matter subject to s. 681.104, a consumer who acquires
a recreational vehicle must first submit the dispute to the
department, and to the program if the dispute is deemed eligible.
Such consumer is not required to resort to a procedure certified
pursuant to s. 681.108, notwithstanding that one of the
manufacturers of the recreational vehicle has such a procedure.
Such consumer is not required to resort to arbitration conducted
by the board, except as provided in s. 681.1096(4) and in this
section.
(2) A consumer acquiring a
recreational vehicle must apply to participate in this program
with respect to a claim arising during the Lemon Law rights period
by filing the application in subsection (3) with the department no
later than 60 days after the expiration of the Lemon Law rights
period.
(3) The consumer's
application for participation in the program must be on a form
prescribed or approved by the department. The department shall
screen all applications to participate in the program to determine
eligibility. The department shall forward to the program
administrator all applications the department determines are
potentially entitled to relief under this chapter.
(a) If the department
determines the application lacks sufficient information from
which a determination of eligibility can be made, the department
shall request additional information from the consumer and, upon
review of such additional information, shall determine whether
the application is eligible or reject the application as
incomplete.
(b) The department shall
reject any application it determines to be fraudulent or outside
the scope of this chapter.
(c) The consumer and the
manufacturer shall be notified in writing by the department if
an application is rejected. Such notification of rejection shall
include a brief explanation as to the reason for the rejection.
(d) If the department
rejects a dispute, the consumer may file a lawsuit to enforce
the remedies provided under this chapter. In any civil action
arising under this chapter and relating to the matter considered
by the department, any determination made to reject a dispute is
admissible in evidence.
(4) Mediation shall be
mandatory for both the consumer and manufacturer, unless the
dispute is settled prior to the scheduled mediation conference.
The mediation conference shall be confidential and inadmissible in
any subsequent adversarial proceedings. Participation shall be
limited to the parties directly involved in the dispute and their
attorneys, if any. All manufacturers shall be represented by
persons with settlement authority.
(a) Upon receipt of an
eligible application from the department, the program
administrator shall notify the consumer and all involved
manufacturers in writing that an eligible application has been
received. Such notification shall include a statement that a
mediation conference will be scheduled, shall identify the
assigned mediator, and provide information regarding the
program's procedures. The program administrator shall provide
all involved manufacturers with a copy of the completed
application.
(b) The mediator shall
be selected and assigned by the program administrator. The
parties may factually object to a mediator based upon the
mediator's past or present relationship with a party or a
party's attorney, direct or indirect, whether financial,
professional, social, or of any other kind. The program
administrator shall consider any such objection, determine its
validity, and notify the parties of any determination. If the
objection is determined valid, the program administrator shall
assign another mediator to the case.
(c) At the mediation
conference, the mediator shall assist the parties' efforts to
reach a mutually acceptable settlement of their dispute;
however, the mediator shall not impose any settlement upon the
parties.
(d) Upon conclusion of
the mediation conference, the mediator shall notify the program
administrator that the case has settled or remains at an
impasse. The program administrator shall notify the department
in writing of the outcome of the mediation.
(e) If the mediation
conference ends in an impasse, it shall proceed to arbitration
pursuant to subsection (5). The program administrator shall
immediately notify the parties in writing that the dispute will
proceed to arbitration and shall identify the assigned
arbitrator.
(f) If the parties enter
into a settlement at any time after the dispute has been
submitted to the program, such settlement must be reduced to
writing, signed by the consumer and all involved manufacturers,
and filed with the program administrator. The program
administrator shall send a copy to the department. All
settlements must contain, at a minimum, the following
information:
- Name and address of the
consumer.
- Name and address of each
involved manufacturer.
- Year, make, model, and
vehicle identification number of the subject recreational
vehicle.
- Name and address of the
dealership from which the recreational vehicle was acquired.
- Date the claim was received
by the program administrator.
- Name of the mediator and/or
arbitrator, if any.
- Statement of the terms of
the agreement, including, but not limited to: whether the
vehicle is to be reacquired by a manufacturer and the
identity of the manufacturer that will reacquire the
vehicle; the amount of any moneys to be paid by the consumer
and/or a manufacturer; the year, make, and model of any
replacement motor vehicle or motor vehicle accepted by the
consumer as a trade-assist; and a time certain for
performance not to exceed 40 days from the date the
settlement agreement is signed by the parties.
(g) If a manufacturer
fails to perform within the time required in any settlement
agreement, the consumer must notify the program administrator of
such failure in writing within 10 days of the required
performance date. Within 10 days of receipt of such notice, the
program administrator shall notify the department of the
manufacturer's failure in compliance and shall schedule the
matter for an arbitration hearing pursuant to subsection (5).
(5) If the mediation ends
in an impasse, or if a manufacturer fails to comply with the
settlement entered into between the parties, the program
administrator shall schedule the dispute for an arbitration
hearing. Arbitration proceedings shall be open to the public on
reasonable and nondiscriminatory terms.
(a) The arbitration
hearing shall be conducted by a single arbitrator assigned by
the program administrator. The arbitrator shall not be the same
person as the mediator who conducted the prior mediation
conference in the dispute. The parties may factually object to
an arbitrator based on the arbitrator's past or present
relationship with a party or a party's attorney, direct or
indirect, whether financial, professional, social, or of any
other kind. The program administrator shall consider any such
objection, determine its validity, and notify the parties of any
determination. If the objection is determined valid, the program
administrator shall assign another arbitrator to the case.
(b) The arbitrator may
issue subpoenas for the attendance of witnesses and for the
production of records, documents, and other evidence. Subpoenas
so issued shall be served and, upon application to the court by
a party to the arbitration, enforced in the manner provided by
law for the service and enforcement of subpoenas in civil
actions. Fees for attendance as a witness shall be the same as
for a witness in the circuit court.
(c) At all program
arbitration proceedings, the parties may present oral and
written testimony, present witnesses and evidence relevant to
the dispute, cross-examine witnesses, and be represented by
counsel. The arbitrator shall record the arbitration hearing and
shall have the power to administer oaths. The arbitrator may
inspect the vehicle if requested by a party or if the arbitrator
considers such inspection appropriate.
(d) The program
arbitrator may continue a hearing on his or her own motion or
upon the request of a party for good cause shown. A request for
continuance by the consumer constitutes a waiver of the time
period set forth in s. 681.1096(3)(k) for completion of all
proceedings under the program.
(e) Where the
arbitration is the result of a manufacturer's failure to perform
in accordance with a mediation agreement, any relief to the
consumer granted by the arbitration will be no less than the
relief agreed to by the manufacturer in the settlement
agreement.
(f) The arbitrator shall
grant relief if a reasonable number of attempts have been
undertaken to correct a nonconformity or nonconformities.
(g) The program
arbitrator shall render a decision within 10 days of the closing
of the hearing. The decision shall be in writing on a form
prescribed or approved by the department. The program
administrator shall send a copy of the decision to the consumer
and each involved manufacturer by registered mail. The program
administrator shall also send a copy of the decision to the
department within 5 days of mailing to the parties.
(h) A manufacturer shall
comply with an arbitration decision within 40 days of the date
the manufacturer receives the written decision. Compliance
occurs on the date the consumer receives delivery of an
acceptable replacement motor vehicle or the refund specified in
the arbitration award. If a manufacturer fails to comply within
the time required, the consumer must notify the program
administrator in writing within 10 days. The program
administrator shall notify the department of a manufacturer's
failure to comply. The department shall have the authority to
enforce compliance with arbitration decisions under this section
in the same manner as is provided for enforcement of compliance
with board decisions under s. 681.1095(10). In any civil action
arising under this chapter and relating to a dispute arbitrated
pursuant to this section, the decision of the arbitrator is
admissible in evidence.
(6) Except as otherwise
provided, all provisions in this section pertaining to mandatory
mediation and arbitration, eligibility screening, mediation
proceedings, arbitration hearings and decisions, and any appeals
thereof are exempt from the provisions of chapter 120.
(7) Either party may make
application to the circuit court for the county in which one of
the parties resides or has a place of business or, if neither
party resides or has a place of business in this state, the county
where the arbitration hearing was held, for an order confirming,
vacating, modifying, or correcting any award, in accordance with
the provisions of this section and ss. 682.12, 682.13, 682.14,
682.15, and 682.17. Such application must be filed within 30 days
of the moving party's receipt of the written decision or the
decision becomes final. Upon filing such application, the moving
party shall mail a copy to the department and, upon entry of any
judgment or decree, shall mail a copy of such judgment or decree
to the department. A review of such application by the circuit
court shall be confined to the record of the proceedings before
the program arbitrator. The court shall conduct a de novo review
of the questions of law raised in the application. In addition to
the grounds set forth in ss. 682.13 and 682.14, the court shall
consider questions of fact raised in the application. In reviewing
questions of fact, the court shall uphold the award unless it
determines that the factual findings of the arbitrator are not
supported by substantial evidence in the record and that the
substantial rights of the moving party have been prejudiced. If
the arbitrator fails to state findings or reasons for the stated
award, or the findings or reasons are inadequate, the court shall
search the record to determine whether a basis exists to uphold
the award. The court shall expedite consideration of any
application filed under this section on the calendar.
(a) If a decision of a
program arbitrator in favor of a consumer is confirmed by the
court, recovery by the consumer shall include the pecuniary
value of the award, attorney's fees incurred in obtaining
confirmation of the award, and all costs and continuing damages
in the amount of $25 per day for each day beyond the 40-day
period following a manufacturer's receipt of the arbitrator's
decision. If a court determines the manufacturer acted in bad
faith in bringing the appeal or brought the appeal solely for
the purpose of harassment, or in complete absence of a
justiciable issue of law or fact, the court shall double, and
may triple, the amount of the total award.
(b) An appeal of a
judgment or order by the court confirming, denying confirmation,
modifying or correcting, or vacating the award may be taken in
the manner and to the same extent as from orders or judgments in
a civil action.
(8) The department shall
have the authority to adopt reasonable rules to carry out the
provisions of this section.
681.110 Compliance and
disciplinary actions.
The Department of Legal Affairs may
enforce and ensure compliance with the provisions of this chapter
and rules adopted thereunder, may issue subpoenas requiring the
attendance of witnesses and production of evidence, and may seek
relief in the circuit court to compel compliance with such
subpoenas. The Department of Legal Affairs may impose a civil
penalty against a manufacturer not to exceed $1,000 for each count
or separate offense. The proceeds from the fine imposed herein shall
be placed in the Motor Vehicle Warranty Trust Fund in the Department
of Legal Affairs for implementation and enforcement of this chapter.
681.111 Unfair or deceptive
trade practice.
A violation by a manufacturer of
this chapter is an unfair or deceptive trade practice as defined in
part II of chapter 501.
681.112 Consumer remedies.
(1) A consumer may file an
action to recover damages caused by a violation of this chapter.
The court shall award a consumer who prevails in such action the
amount of any pecuniary loss, litigation costs, reasonable
attorney's fees, and appropriate equitable relief.
(2) An action brought
under this chapter must be commenced within 1 year after the
expiration of the Lemon Law rights period, or, if a consumer
resorts to an informal dispute-settlement procedure or submits a
dispute to the division or board, within 1 year after the final
action of the procedure, division, or board.
(3) This chapter does not
prohibit a consumer from pursuing other rights or remedies under
any other law.
681.113 Dealer liability.
Except as provided in ss.
681.103(3) and 681.114(2), nothing in this chapter imposes any
liability on a dealer as defined in s. 320.60(11)(a) or creates a
cause of action by a consumer against a dealer, except for written
express warranties made by the dealer apart from the manufacturer's
warranties. A dealer may not be made a party defendant in any action
involving or relating to this chapter, except as provided in this
section. The manufacturer shall not charge back or require
reimbursement by the dealer for any costs, including, but not
limited to, any refunds or vehicle replacements, incurred by the
manufacturer arising out of this chapter, in the absence of evidence
that the related repairs had been carried out by the dealer in a
manner substantially inconsistent with the manufacturer's published
instructions.
681.114 Resale of returned
vehicles.
(1) A manufacturer who
accepts the return of a motor vehicle by reason of a settlement,
determination, or decision pursuant to this chapter shall notify
the department and report the vehicle identification number of
that motor vehicle within 10 days after such acceptance, transfer,
or disposal of the vehicle, whichever occurs later.
(2) A person shall not
knowingly lease, sell at wholesale or retail, or transfer a title
to a motor vehicle returned by reason of a settlement,
determination, or decision pursuant to this chapter or similar
statute of another state unless the nature of the nonconformity is
clearly and conspicuously disclosed to the prospective transferee,
lessee, or buyer, and the manufacturer warrants to correct such
nonconformity for a term of 1 year or 12,000 miles, whichever
occurs first. The Department of Legal Affairs shall prescribe by
rule the form, content, and procedure pertaining to such
disclosure statement.
(3) As used in this
section, the term "settlement" means an agreement
entered into between a manufacturer and consumer that occurs after
a dispute is submitted to a procedure or program or is approved
for arbitration before the board.
681.115 Certain agreements void.
Any agreement entered into by a
consumer that waives, limits, or disclaims the rights set forth in
this chapter is void as contrary to public policy. The rights set
forth in this chapter shall extend to a subsequent transferee of
such motor vehicle.
681.116 Preemption.
This chapter preempts any similar
county or municipal ordinance regarding consumer warranty rights
resulting from the acquisition of a motor vehicle in this state.
681.117 Fee.
(1) A $2 fee shall be
collected by a motor vehicle dealer, or by a person engaged in the
business of leasing motor vehicles, from the consumer at the
consummation of the sale of a motor vehicle or at the time of
entry into a lease agreement for a motor vehicle. Such fees shall
be remitted to the county tax collector or private tag agency
acting as agent for the Department of Revenue. All fees, less the
cost of administration, shall be transferred monthly to the
Department of Legal Affairs for deposit into the Motor Vehicle
Warranty Trust Fund. The Department of Legal Affairs shall
distribute monthly an amount not exceeding one-fourth of the fees
received to the Division of Consumer Services of the Department of
Agriculture and Consumer Services to carry out the provisions of
ss. 681.108 and 681.109. The Department of Legal Affairs shall
contract with the Division of Consumer Services for payment of
services performed by the division pursuant to ss. 681.108 and
681.109.
(2) The Department of
Revenue shall administer, collect, and enforce the fee authorized
under this section pursuant to the provisions of chapter 212. The
fee shall not be included in the computation of estimated taxes
pursuant to s. 212.11(1)(a), nor shall the dealer's credit
provided under s. 212.12 apply to the fee. The provisions of
chapter 212 regarding the authority to audit and make assessments,
the keeping of books and records, and interest and penalties on
delinquent fees apply to the fee imposed by this section.
681.118 Rulemaking authority.
The Department of Legal Affairs
shall adopt rules pursuant to ss. 120.536(1) and 120.54 to implement
the provisions of this chapter.
Find other Lemon Laws in these
states:
Lemon Law
Lemon Law - "Lemon
law" is that body of state law which defines an automobile
owners rights when the manufacturer is not able to repair the
automobile within the limits specified by state lemon law. In
such cases, the automobile is referred to as a "lemon",
and is subject to the conditions of the state lemon law.
Your Lemon Law
Disclaimer:
These pages are created to inform and educate the public about lemon
law and under the lemon law in your state. They are not and
should not be considered legal opinions or advice as to whether you
have rights under lemon law or whether you should pursue "a
lemon law case". If after reading this information,
you believe you qualify, you should seek the advice and counsel of
an attorney specializing in lemon law in your state. Remember
that each state's lemon laws vary.
Lemon Law - Lemon
Law - Lemon Law- Lemon Law
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