§ 32:1270.11 — Unauthorized acts

Louisiana § 32:1270.11

• Jurisdiction: Louisiana
• Title 32: Levees

Text

It shall be a violation of this Part:
(1) For a manufacturer, distributor, wholesaler, distributor branch, factory branch, converter or officer, agent, or other representative thereof:
(a) To induce or coerce, or attempt to induce or coerce, any licensee:
(i) To order or accept delivery of any motorcycle or all-terrain vehicle, appliances, equipment, parts or accessories therefor, or any other commodity or commodities which shall not have been voluntarily ordered.
(ii) To order or accept delivery of any motorcycle or all-terrain vehicle with special features, appliances, accessories, or equipment not included in the list price of the vehicle as publicly advertised.
(iii) To order for any person any parts, accessories, equipment, machinery, tools, appliances, or any commodity whatsoever.
(iv) To assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from liability to be imposed by law, unless done in connection with a settlement agreement to resolve a matter pending a commission hearing or pending litigation between a manufacturer, distributor, wholesaler, distributor branch or factory branch, or officer, agent, or other representative thereof.
(v) To enter into a franchise with a licensee or during the franchise term, use any written instrument, agreement, release, assignment, novation, estoppel, or waiver, to attempt to nullify or modify any provision of this Chapter, or to require any controversy between a dealer and a manufacturer to be referred to any person or entity other than the commission, or duly constituted courts of this state or the United States, if such referral would be binding upon the motorcycle or all-terrain vehicle dealer. Such instruments are null and void, unless done in connection with a settlement agreement to resolve a matter pending a commission hearing or pending litigation.
(vi) To waive the right to a jury trial.
(vii) To release, convey, or otherwise provide customer information, if to do so is unlawful or if the customer objects in writing. This does not include information that is necessary for the manufacturer to meet its obligations to the motorcycle or all-terrain vehicle dealer or consumers in regard to contractual responsibilities, motorcycle or all-terrain vehicle recalls, or other requirements imposed by state or federal law. The manufacturer is further prohibited from providing any consumer information received from the motorcycle or all-terrain vehicle dealer to any unaffiliated third party.
(viii) To pay the attorney fees of the manufacturer or distributor related to hearings and appeals brought under this Chapter.
(b) To threaten to cancel any franchise or any contractual agreement existing between such manufacturer, distributor, wholesaler, distributor branch or factory branch and the motorcycle or all-terrain vehicle dealer for any reason.
(c) To unfairly, without just cause and due regard to the equities of the motorcycle or all-terrain vehicle dealer, cancel the franchise of the licensee. The nonrenewal of a franchise with such dealer or his successor without just provocation or cause, or the refusal to approve a qualified transferee or qualified successor to the dealer-operator as provided for in the franchise shall be deemed a violation of this Subparagraph and shall constitute an unfair cancellation, regardless of the terms or provisions of such franchise. However, at least ninety days notice shall be given to the dealer of a cancellation or nonrenewal of franchise except for a cancellation arising out of fraudulent activity of the dealer principal which results in the conviction of a crime punishable by imprisonment.
(d) To refuse to extend to a licensee the privilege of determining the mode or manner of available transportation facility that the motorcycle or all-terrain vehicle dealer desires to be used or employed in making deliveries of motorcycles or all-terrain vehicles to him or it.
(e) To ship or sell motorcycles or all-terrain vehicles to a licensee prior to the licensee having been granted a license by the commission to sell motorcycles or all-terrain vehicles.
(f) To unreasonably withhold consent to the sale, transfer, or exchange of the franchise to a qualified transferee capable of being licensed as a motorcycle or all-terrain vehicle dealer in this state, provided the transferee meets the criteria generally applied by the manufacturer in approving new motorcycle or all-terrain vehicle dealers and agrees to be bound by all the terms and conditions of the standard franchises.
(g) To fail to respond in writing to a written request for consent as specified in Subparagraph (f) of this Paragraph within sixty days of receipt of a written request on the forms, if any, generally utilized by the manufacturer or distributor for such purposes and containing the information required therein. Failure to respond shall be deemed to be consent to the request.
(h)(i) To sell or offer to sell a new or unused motorcycle or all-terrain vehicle directly to a consumer except as provided in this Chapter, or to compete with a licensee in the same-line makes, models, or classifications operating under an agreement or franchise from the aforementioned manufacturer. A manufacturer shall not, however, be deemed to be competing when any one of the following conditions are met:
(aa) Operating a motorcycle or all-terrain vehicle dealership temporarily for a reasonable period, not to exceed two years.
(bb) Operating a bona fide retail dealership which is for sale to any qualified independent person at a fair and reasonable price, not to exceed two years.
(cc) Operating in a bona fide relationship in which a person independent of a manufacturer has made a significant investment subject to loss in the dealership, and can reasonably expect to acquire full ownership of such dealership on reasonable terms and conditions.
(ii) After any of the conditions have been met under Subitems (i)(aa) and (bb) of this Subparagraph, the commission shall allow the manufacturer to compete with licensees of the same-line makes, models, or classifications under an agreement or franchise from the manufacturer for longer than two years when, in the discretion of the commission, the best interest of the manufacturer, consuming public, and licensees are best served.
(i) Repealed by Acts 2014, No. 770, §2.
(j) To fail to designate and provide to the commission in writing the community or territory assigned to a licensee.
(k) To unreasonably discriminate among competing, similarly situated, same-line make dealers in the sales of motorcycles or all-terrain vehicles, in the availability of motorcycles or all-terrain vehicles, in the terms of incentive programs or sales promotion plans, or in other similar programs.
(l) To use any subsidiary, affiliate, or any other controlled person or entity, or to employ the services of a third party, to accomplish what would otherwise be illegal conduct under this Chapter on the part of the manufacturer or distributor.
(m) To make a change in the area of responsibility described in the franchise agreement or sales and service agreement of a motorcycle or all-terrain vehicle dealer, without the franchisor, converter, or manufacturer giving the motorcycle or all-terrain vehicle dealer and the commission no less than sixty days prior written notice by certified or registered mail.
(n) To refuse to deliver to any licensee having a franchise or contractual arrangement for the retail sale of motorcycles or all-terrain vehicles sold or distributed by such manufacturer, distributor, wholesaler, distributor branch or factory branch, any motorcycle or all-terrain vehicle, publicly advertised for immediate delivery, within sixty days after such dealer's order shall have been received.
(2) For a motorcycle or all-terrain vehicle dealer, used motorcycle or all-terrain vehicle dealer, or a motorcycle or all-terrain vehicle salesman:
(a) To require a purchaser of a motorcycle or all-terrain vehicle, as a condition of sale and delivery thereof, to also purchase special features, appliances, accessories, or equipment not desired or requested by the purchaser; however, this prohibition shall not apply as to special features, appliances, accessories, or equipment which are permanently affixed to the motorcycle or all-terrain vehicle.
(b) To represent and sell as a new motorcycle or all-terrain vehicle any motorcycle or all-terrain vehicle, the legal title of which has been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser.
(c) To use any false or misleading advertisement in connection with his business as a motorcycle or all-terrain vehicle dealer or motorcycle or all-terrain vehicle salesman.
(d) To sell or offer to sell makes, models, or classifications of new motorcycles or all-terrain vehicles for which no franchise and license to sell is held.
(e) Except as otherwise approved by the commission, to sell or offer to sell a motorcycle or all-terrain vehicle from an unlicensed location.
(f) To deliver to a prospective purchaser a new or a used motorcycle or all-terrain vehicle on a sale conditioned on financing, i.e., a spot delivery, except on the following terms and conditions which shall be in writing and shall be a part of the conditional sales contract or other written notification signed by the purchaser:
(i) That if the sale is not concluded by the financing of the sale to the purchaser within twenty-five days of the delivery, the sale contract shall be null and void.
(ii) That the motorcycle or all-terrain vehicle being offered for trade-in by the purchaser shall not be sold by the motorcycle or all-terrain vehicle dealer until the conditional sale is complete.
(iii) That there shall be no charge to the purchaser should the conditional sale not be completed, including but not limited to mileage charges or charges to refurbish the motorcycle or all-terrain vehicle offered for trade-in. However, the purchaser shall be responsible for any and all damages to the motorcycle or all-terrain vehicle or other motorcycles or all-terrain vehicles damaged by the fault of the purchaser and any and all liability incurred by the purchaser during the purchaser's custody of the vehicle to the extent provided for in R.S. 22:1296.
(iv) That if the conditional sale is not completed, the motorcycle or all-terrain vehicle dealer shall immediately refund to the purchaser upon return of the motorcycle or all-terrain vehicle all sums placed with the dealership as a deposit or any other purpose associated with the attempted sale of the motorcycle or all-terrain vehicle.
(v) That the prospective purchaser shall return the motorcycle or all-terrain vehicle to the dealership within forty-eight hours of notification by the dealer that the conditional sale will not be completed. If the prospective purchaser does not return the motorcycle or all-terrain vehicle to the dealership within forty-eight hours of notification by the motorcycle or all-terrain vehicle dealer, an authorized agent of the motorcycle or all-terrain vehicle dealer shall have the right to recover the motorcycle or all-terrain vehicle without the necessity of judicial process, provided that such recovery can be accomplished without unauthorized entry into a closed dwelling, whether locked or unlocked and without a breach of peace.
(g) To pay a fee to any person in return for the solicitation, procurement, or production by that person of prospective purchasers for new and used motorcycles or all-terrain vehicles, except to a motorcycle or all-terrain vehicle salesman licensed under the provisions of this Chapter.
(h) To fail to fully and completely explain each charge listed on a retail buyer's order or motorcycle or all-terrain vehicle invoice prior to the purchase of a motorcycle or all-terrain vehicle.
(i) When selling a motorcycle or all-terrain vehicle to a consumer, to assess any consumer services fees, which shall include fees for treating the interior upholstery of the vehicle, oil changes, roadside assistance, dealer inspections, or any other service offered by the dealer, without allowing the buyer to refuse such services and be exempt from payment for such services. The provisions of this Subparagraph shall not apply to dealer-added options or accessories which are permanently affixed to the motorcycle or all-terrain vehicle.
(j)(i) To fail to disclose to a purchaser in writing on the sales contract, buyer's order, or any other document that the motorcycle or all-terrain vehicle dealer may be participating in finance charges associated with the sale.
(ii) To participate in a finance charge that would result in a difference between the buy rate and the contract rate of more than three percentage points.
(iii) The provisions of this Subparagraph shall apply only to transactions subject to the Louisiana Motor Vehicle Sales Finance Act.
(3)(a) For any person or other licensee to modify a franchise during the term of the agreement or upon its renewal if the modification substantially and adversely affects the franchisee's rights, obligations, investment, or return on investment without giving a sixty-day written notice of the proposed modification to the licensee and the commission unless the modifications are required by law, court order, or the commission. Within the sixty-day notice period, the licensee may file with the commission a complaint for a determination whether there is good cause for permitting the proposed modification. The party seeking to modify or replace an agreement shall demonstrate by a preponderance of the evidence that there is good cause for the modification or replacement. The commission shall schedule a hearing within sixty days to decide the matter. Multiple complaints pertaining to the same proposed modifications shall be consolidated for hearing. The proposed modification may not take effect pending the determination of the matter.
(b) In making a determination of whether there is good cause for permitting a proposed modification, the commission may consider any relevant factor including:
(i) The reasons for the proposed modification.
(ii) Whether the proposed modification is applied to or affects all licensees in a nondiscriminating manner.
(iii) The degree to which the proposed modification will have a substantial and adverse effect upon the licensee's investment or return on investment.
(iv) Whether the proposed modification is in the public interest.
(v) The degree to which the proposed modification is necessary to the orderly and profitable distribution of vehicles and other services by the licensee.
(vi) Whether the proposed modification is offset by other modifications beneficial to the licensee.
(c) The decision of the commission shall be in writing and shall contain findings of fact and a determination of whether there is good cause for permitting the proposed modification. The commission shall deliver copies of the decision to the parties personally or by registered mail.
(4) For any employee of a licensee while acting in the scope of his employment, to accept any payment, commission, fee, or compensation of any kind from any person other than the employing licensee, unless such payment is fully disclosed to and approved by the employing licensee.

Legislative History

Acts 2012, No. 326, §1; Acts 2014, No. 770, §2.