(1) No powersports vehicle manufacturer or distributor shall establish an additional powersports vehicle dealer, reopen a previously existing powersports vehicle dealer, or authorize an existing powersports vehicle dealer without first providing at least sixty days' notice to all of its franchised dealers within whose relevant market area the new, reopened, or relocated dealer would be located. The notice must state:
The specific location at which the additional, reopened, or relocated powersportsvehicle dealer will be established;
The date on or after which the powersports vehicle manufacturer intends to be engaged in business with the additional, reopened, or relocated powersports vehicle dealer at the proposed location; and
The identity of all powersports vehicle dealers who are franchised to sell the sameline-make of vehicles with licensed locations in the relevant market area where the additional, reopened, or relocated powersports vehicle dealer is proposed to be located.
A powersports vehicle manufacturer shall approve or disapprove of a powersportsvehicle dealer facility initial site location, relocation, or reopening request within sixty days after the request or after sending the notice required by subsection (1) of this section to all of its franchised powersports vehicle dealers, whichever is later.
Subsection (1) of this section shall not apply to:
The relocation of an existing dealer within two miles of its current location; or
The establishment of a replacement dealer, within two years, either at the formerlocation or within two miles of the former location.
(4) As used in this section:
"Powersports manufacturer" means a powersports vehicle manufacturer, distributor,or manufacturer representative.
"Relevant market area" means the greater of the following:
The geographic area of responsibility defined in the franchise agreement of an existing dealer; or
The geographic area within a radius of ten miles of any existing dealer of the sameline-make of powersports vehicle as the proposed additional motor vehicle dealer.
(5) (a) An existing powersports vehicle dealer adversely affected by the reopening or relocation of an existing same line-make powersports vehicle dealer or the addition of a same line-make powersports vehicle dealer may, within ninety days after receipt of the notice required in subsection (1) of this section, file a legal action in a district court of competent jurisdiction or file an administrative complaint with the executive director to prevent or enjoin the relocation, reopening, or addition of the proposed powersports vehicle dealer. An existing powersports vehicle dealer is adversely affected if:
The dealer is located within the relevant market area of the proposed relocated, reopened, or additional dealership described in the notice required in subsection (1) of this section; or
The existing dealer or dealers of the same line-make show that, during any twelvemonth period within the thirty-six months preceding the receipt of the notice required in subsection (1) of this section, the dealer or dealers, or a dealer's predecessor, made at least twenty-five percent of the dealer's retail sales of new powersports vehicles to persons whose addresses are located within ten miles of the location of the proposed relocated, reopened, or additional dealership.
The executive director shall refer a complaint filed under this section to an administrative law judge in the office of administrative courts for final agency action.
In any court or administrative action, the manufacturer has the burden of proof oneach of the following issues:
The change in population;
The relevant vehicle buyer profiles;
The relevant historical new powersports vehicle registrations for the line-make ofvehicles versus the manufacturer's actual competitors in the relevant market area;
Whether the opening of the proposed reopened, relocated, or additional powersportsvehicle dealer is materially beneficial to the public interest or the consumers in the relevant market area;
Whether the powersports vehicle dealers of the same line-make in the relevant market area are providing adequate representation and convenient customer care, including the adequacy of sales and service facilities, equipment, parts, and qualified service personnel, for powersports vehicles of the same line-make in the relevant market area;
The reasonably expected market penetration of the line-make, given the factors affecting penetration; and
Whether the reopened, relocated, or additional dealership is reasonable and justifiable based on expected economic and market conditions within the relevant market area.
(d) In any court or administrative action, the powersports vehicle dealer has the burden of proof on each of the following issues:
Whether the manufacturer engaged in any action or omission that, directly or indirectly, denied the existing powersports vehicle dealer of the same line-make the opportunity for reasonable growth or market expansion;
Whether the manufacturer has coerced or attempted to coerce any existing powersports vehicle dealer into consenting to additional or relocated franchises of the same linemake in the community or territory or relevant market area; and
The size and permanency of the investment of, and the obligations incurred by, theexisting powersports vehicle dealers of the same line-make located in the relevant market area.
(e) (I) In a legal or administrative action challenging the relocation, reopening, or addition of a powersports vehicle dealer, the district court or administrative law judge shall make a determination, based on the factors identified in subsections (5)(c) and (5)(d) of this section, of whether the relocation, reopening, or addition of a powersports vehicle dealer is:
In the public interest; and
Fair and equitable to the existing powersports vehicle dealers.
(II) The district court or the executive director shall deny any proposed relocation, reopening, or addition of a powersports vehicle dealer unless the manufacturer shows by a preponderance of the evidence that the existing powersports vehicle dealer or dealers of the same line-make in the relevant market area of the proposed dealership are not providing adequate representation of the line-make powersports vehicles. A determination to deny, prevent, or enjoin the relocation, reopening, or addition of a powersports vehicle dealer is effective for at least eighteen months.
Source: L. 2018: Entire article added with relocations, (SB 18-030), ch. 7, p. 126, § 2, effective October 1.
Editor's note: This section is similar to former § 12-6-524 as it existed prior to 2018.