RS 1270.20 - Unauthorized acts; recreational vehicles
It shall be a violation of this Chapter:
(1) For a manufacturer, a distributor, a wholesaler, factory branch, 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 recreational vehicles, 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 recreational vehicle with special features, appliances, accessories, or equipment not included in the list price of the recreational 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, 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 recreational vehicle 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 recreational 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 participate in an advertising group or to participate monetarily in an advertising campaign or contest or to purchase any promotional materials, showroom, or other display decorations or materials at the expense of such recreational vehicle dealer.
(viii) 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 recreational vehicle dealer or consumers in regard to contractual responsibilities, recreational vehicle recalls, or other requirements imposed by state or federal law. The manufacturer is further prohibited from providing any consumer information received from the recreational vehicle dealer to any unaffiliated third party.
(ix) To pay the attorney fees of the manufacturer or distributor related to hearings and appeals brought under this Chapter.
(b) To refuse to deliver to any licensee having a franchise or contractual arrangement for the retail sale of recreational vehicles sold or distributed by such manufacturer, distributor, wholesaler, or factory branch, any recreational vehicle, publicly advertised for immediate delivery, within sixty days after such recreational vehicle dealer's order shall have been received.
(c) To threaten to cancel any franchise or any contractual agreement existing between such manufacturer, distributor, wholesaler, or factory branch and the recreational vehicle dealer for any reason.
(d) To unfairly, without just cause and due regard to the equities of such recreational vehicle dealer, cancel the franchise of any licensee. The nonrenewal of a franchise with such recreational vehicle 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 agreement, shall be deemed a violation of this Paragraph 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 recreational vehicle dealer of any cancellation or nonrenewal of a franchise except for a cancellation arising out of the financial default of the recreational vehicle dealer or fraudulent activity of the recreational vehicle dealer principal which results in the conviction of a crime punishable by imprisonment.
(e) To refuse to extend to a licensee the privilege of determining the mode or manner of available transportation facility that such recreational vehicle dealer desires to be used or employed in making deliveries of recreational vehicles to him or it.
(f) To use any false or misleading advertisement in connection with his business as such manufacturer of recreational vehicles, distributor, wholesaler, or factory branch, or officer, agent, or other representative thereof.
(g) To delay, refuse, or fail to deliver recreational vehicles in reasonable quantities relative to the licensee's facilities and sales potential in the relevant market area. This Subparagraph shall not be valid, however, if such failure is caused by acts or causes beyond the control of the manufacturer, distributor, or other such party.
(h) To ship or sell recreational vehicles to a licensee prior to the licensee having been granted a license by the commission to sell such recreational vehicles.
(i) To unreasonably withhold consent to the sale, transfer, or exchange of the franchise to a qualified transferee capable of being licensed as a recreational vehicle dealer in this state, provided the transferee meets the criteria generally applied by the manufacturer in approving new recreational vehicle dealers and agrees to be bound by all the terms and conditions of the standard franchises.
(j) To fail to respond in writing to a written request for consent as specified in Subparagraph (i) 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.
(k)(i) To sell or offer to sell a new or unused recreational 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 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.
(l) To condition the renewal or extension of a franchise on a new recreational vehicle dealer's substantial renovation of the recreational vehicle dealer's place of business or on the construction, purchase, acquisition, or rental of a new place of business by the new recreational vehicle dealer, unless the manufacturer has advised the new recreational vehicle dealer in writing of its intent to impose such a condition within a reasonable time prior to the effective date of the proposed date of renewal or extension, but in no case less than one hundred eighty days, and provided the manufacturer demonstrates the need for such demand in view of the need to service the public and the economic conditions existing in the recreational vehicle industry at the time such action would be required of the new recreational vehicle dealer. As part of any such condition, the manufacturer shall agree, in writing, to supply the recreational vehicle dealer with an adequate supply and marketable model mix of recreational vehicles to meet the sales levels necessary to support the increased overhead incurred by the recreational vehicle dealer by reason of such renovation, construction, purchase, or rental of a new place of business.
(m) To fail to compensate its recreational vehicle dealers for the work and services they are required to perform in connection with the recreational vehicle dealer's delivery and preparation obligations according to the terms of compensation. The commission shall find the compensation to be reasonable or the manufacturer shall remedy any deficiencies.
(n) To fail to designate and provide to the commission in writing the community or territory assigned to a licensee.
(o) To unreasonably discriminate among competing, similarly situated, same-line make dealers in the sales of recreational vehicles, in the availability of such recreational vehicles, in the terms of incentive programs or sales promotion plans, or in other similar programs.
(p) To terminate, cancel, or refuse to continue any franchise agreement based upon the fact that the recreational vehicle dealer owns, has an investment in, participates in the management of, or holds a franchise agreement for the sale or service of another make or line of new recreational vehicles at a different dealership location, or intends to or has established another make or line of new recreational vehicles in the same dealership facilities of the manufacturer or distributor.
(q) To demand compliance with facilities requirements that include any requirements that a recreational vehicle dealer establish or maintain exclusive office, parts, service or body shop facilities, unless such requirements would be reasonable and justified by business considerations. The burden of proving that such requirements are reasonable and justified by business considerations is on the manufacturer. If the franchise agreement of the manufacturer or distributor requires the approval of the manufacturer or distributor for facility uses or modifications, the manufacturer or distributor shall approve or deny the request in writing within sixty days of receipt of such request.
(r) 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.
(s) To make a change in the area of responsibility described in the franchise agreement or sales and service agreement of a recreational vehicle dealer, without the franchisor or manufacturer giving the recreational vehicle dealer and the commission no less than sixty days prior written notice by certified or registered mail.
(t) To induce or coerce, or attempt to induce or coerce, any recreational vehicle dealer to enter into any agreement with such manufacturer, distributor, wholesaler, distributor branch or factory branch or representative thereof, or to do any other act unfair to the recreational vehicle dealer.
(u)(i) To coerce or attempt to coerce any retail recreational vehicle dealer or prospective retail recreational vehicle dealer to offer to sell or sell any extended service contract or extended maintenance plan or gap product offered, sold, backed by, or sponsored by the manufacturer or distributor or affiliate or sell, assign, or transfer any retail installment sales contract or lease obtained by the dealer in connection with the sale or lease by him of recreational vehicles manufactured or sold by the manufacturer or distributor, to a specified finance company or class of finance companies, leasing company or class of leasing companies, or to any other specified persons by any of the following:
(aa) By any statement, promise, or threat that the manufacturer or distributor will in any manner benefit or injure the dealer, whether the statement, suggestion, threat, or promise is express or implied or made directly or indirectly.
(bb) By any act that will benefit or injure the dealer.
(cc) By any contract, or any express or implied offer of contract, made directly or indirectly to the dealer, for handling the recreational vehicle on the condition that the recreational vehicle dealer shall offer to sell or sell any extended service contract or extended maintenance plan offered, sold, backed by, or sponsored by the manufacturer or distributor or that the dealer sell, assign, or transfer his retail installment sales contract on or lease of the recreational vehicle, to a specified finance company or class of finance companies, leasing company or class of leasing companies, or to any other specified person.
(dd) Any such statements, threats, promises, acts, contracts, or offers of contracts, when their effect may be to lessen or eliminate competition.
(ii) Nothing contained in this Subparagraph shall prohibit a manufacturer or distributor from offering or providing incentive benefits or bonus programs to a retail recreational vehicle dealer or prospective retail recreational vehicle dealer who makes the voluntary decision to offer to sell or sell any extended service contract or extended maintenance plan offered, sold, backed, or sponsored by the manufacturer or distributor or to sell, assign, or transfer any retail installment sale or lease by him of recreational vehicles manufactured or sold by the manufacturer or distributor to a specified finance company or leasing company.
(2) For a recreational vehicle dealer or a recreational vehicle salesman:
(a) To require a purchaser of a recreational 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 recreational vehicle.
(b) To represent and sell as a new recreational vehicle any 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 such recreational vehicle dealer or recreational vehicle salesman.
(d) To sell or offer to sell makes, models, or classifications of new recreational 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 recreational vehicle from an unlicensed location.
(f) To deliver to a prospective purchaser a new recreational 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 recreational vehicle being offered for trade-in by the purchaser shall not be sold by the recreational 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 recreational vehicle offered for trade-in. However, the purchaser shall be responsible for any and all damages to the recreational vehicle or other vehicles damaged by the fault of the purchaser and any and all liability incurred by the purchaser during the purchaser's custody of the recreational vehicle to the extent provided for in R.S. 22:1296.
(iv) That if the conditional sale is not completed, the recreational vehicle dealer shall immediately refund to the purchaser upon return of the recreational vehicle all sums placed with the dealership as a deposit or any other purpose associated with the attempted sale of the vehicle.
(v) That the prospective purchaser shall return the recreational vehicle to the dealership within forty-eight hours of notification by the recreational vehicle dealer that the conditional sale will not be completed. If the prospective purchaser does not return the recreational vehicle to the dealership within forty-eight hours of notification by the recreational vehicle dealer, an authorized agent of the recreational vehicle dealer shall have the right to recover the recreational 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 recreational vehicles, except to a recreational 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 recreational vehicle invoice prior to the purchase of a recreational vehicle.
(i) When selling a recreational vehicle to a consumer, to assess any consumer services fees, which shall include fees for treating the interior upholstery of the recreational vehicle, oil changes, roadside assistance, dealer inspections, or any other service offered by the recreational vehicle 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 recreational 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 recreational 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 recreational 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.
Acts 2012, No. 326, §1; Acts 2014, No. 770, §1.