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Rs 32:1270.1 Unauthorized Acts; Marine Products

§1270.1. Unauthorized acts; marine products

It shall be a violation of this Part:

(1) For a manufacturer, a distributor, a wholesaler, distributor branch, or factory

branch of marine products or any 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 marine product, appliances, equipment, parts

or accessories therefor, or any other commodity or commodities which shall not have been

voluntarily ordered.

(ii) To order for any person any parts, accessories, equipment, machinery, tools,

appliances, or any commodity whatsoever.

(iii) 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

involving a manufacturer, distributor, wholesaler, distributor branch or factory branch, or

officer, agent, or other representative thereof.

(iv) 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

marine 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 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.

(v) To waive the right to a jury trial.

(vi) 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 marine dealer.

(vii) To adhere to performance standards that are not applied uniformly to other

similarly situated marine dealers. Any such performance standards shall be fair, reasonable,

equitable, and based on accurate information. If marine dealership performance standards

are based on a survey, the manufacturer, distributor, wholesaler, distributor branch, or factory

branch shall establish the objectivity of the survey process and provide this information to

any marine dealer of the same-line make covered by the survey request. Each response to

a survey used by a manufacturer in preparing an evaluation or performance-rating of a marine

dealer shall be made available to that marine dealer, or it cannot be used by the manufacturer.

However, if a customer requests that the manufacturer or distributor not disclose the

consumer's identity to the dealer, the manufacturer may withhold the consumer's identity in

providing the survey response to the dealer, and the manufacturer may use the response. Any

survey used must have the following characteristics:

(aa) It was designed by experts.

(bb) The proper universe was examined.

(cc) A representative sample was chosen.

(dd) The data was accurately reported.

(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 marine dealer or consumers in

regard to contractual responsibilities, marine product recalls, or other requirements imposed

by state or federal law. The manufacturer is further prohibited from providing any consumer

information received from the marine 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.

(x) To order or accept delivery of any vehicle with special features, appliances,

accessories, or equipment not included in the list price of the vehicle as publicly advertised.

(b) To refuse to deliver to any licensee having a franchise or contractual arrangement

for the retail sale of marine products sold or distributed by such manufacturer, distributor,

wholesaler, distributor branch or factory branch, any marine product, publicly advertised for

immediate delivery, within sixty days after such marine dealer's order shall have been

received.

(c) To threaten to cancel any franchise existing between such manufacturer,

distributor, wholesaler, distributor branch or factory branch and the marine dealer for any

reason.

(d) To unfairly, without just cause and due regard to the equities of the marine dealer,

cancel the franchise of the licensee. The nonrenewal of a franchise with a marine 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 selling

agreement, 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 a 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.

(e) To refuse to extend to a licensee the privilege of determining the mode or manner

of available transportation facility that such marine dealer desires to be used or employed in

making deliveries of marine products to him or it.

(f) To ship or sell marine products to a licensee prior to the licensee having been

granted a license by the commission to sell such products.

(g) To unreasonably withhold consent to the sale, transfer, or exchange of the

dealership to a qualified transferee capable of being licensed as a marine dealer in this state,

provided the transferee meets the criteria generally applied by the manufacturer in approving

new marine dealers and agrees to be bound by all the terms and conditions of the standard

franchises.

(h) To fail to respond in writing to a written request for consent as specified in

Subparagraph (g) 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.

(i) To sell or offer to sell a new or unused marine product directly to a consumer

except as provided in this Chapter.

(j) Repealed by Acts 2014, No. 770, §2.

(k) To fail to designate and provide to the commission in writing the community or

territory assigned to a licensee. The provisions of this Subparagraph shall not apply when

the marine products consist of a trolling motor, boat trailer, or watercraft trailer.

(l) To unreasonably discriminate among competing, similarly situated, same-line

make dealers in the sales of the marine products, in the availability of such marine products,

in the terms of incentive programs or sales promotion plans, or in other similar programs.

(m) 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.

(n) To make a change in the area of responsibility described in the franchise or sales

and service agreement of a dealer, without the manufacturer or distributor giving the marine

dealer and the commission no less than sixty days prior written notice by certified or

registered mail.

(2) For a marine dealer, used marine product dealer, marine product salesman:

(a) To require a purchaser of a marine product, 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 marine product.

(b) To represent and sell as a new marine product any marine product, 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 marine dealer or marine product salesman.

(d) To sell or offer to sell makes, models, or classifications of new marine products

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 marine

product from an unlicensed location.

(f) To deliver to a prospective purchaser a new or a used marine product 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 marine product being offered for trade-in by the purchaser shall not be

sold by the marine 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 marine

product offered for trade-in. However, the purchaser shall be responsible for any and all

damages to the marine product or other marine products damaged by the fault of the

purchaser and any and all liability incurred by the purchaser during the purchaser's custody

of the marine product to the extent provided for in R.S. 22:1296.

(iv) That if the conditional sale is not completed, the marine dealer shall immediately

refund to the purchaser upon return of the marine product all sums placed with the dealership

as a deposit or any other purpose associated with the attempted sale of the marine product.

(v) That the prospective purchaser shall return the marine product to the dealership

within forty-eight hours of notification by the marine dealer that the conditional sale will not

be completed. If the prospective purchaser does not return the marine product to the

dealership within forty-eight hours of notification by the marine dealer, an authorized agent

of the marine dealer shall have the right to recover the marine product 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 marine products,

except to a 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 marine product invoice prior to the purchase of a marine product.

(i) When selling a marine product to a consumer, to assess any consumer services

fees, which shall include fees for treating the interior upholstery of the marine product, 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 marine product.

(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

dealer'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 marine products 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. 111, §1; Acts 2014, No. 770, §2; Acts 2016,

No. 530, §1.

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Local Government
Louisiana
3
1
0
John Bel Edwards
John Bel Edwards
January 11, 2016 -
Democratic
1-225-342-4404
900 North 3rd Street, Baton Rouge, LA, 70802

Keywords
marine
dealer
product
fact
sale
license
modification
licensee
purchaser
purchase