GENERAL ASSEMBLY OF NORTH CAROLINA
1993 SESSION
CHAPTER 123
The General Assembly of North Carolina enacts:
Section 1. G.S. 20-305(6) reads as rewritten:
"(6) Notwithstanding the
terms, provisions or conditions of any franchise or notwithstanding the terms
or provisions of any waiver, to terminate, cancel or fail to renew any franchise
with a licensed new motor vehicle dealer unless the manufacturer has satisfied
the notice requirements of subparagraph c. and the Commissioner has determined,
if requested in writing by the dealer within the time period specified in
G.S. 20-305(6)c1II, III or IV, as applicable, and after a hearing on the
matter, that there is good cause for the termination, cancellation, or
nonrenewal of the franchise and that the manufacturer has acted in good faith
as defined in this act regarding the termination, cancellation or
nonrenewal. When such a petition is made to the Commissioner by a dealer
for determination as to the existence of good cause and good faith for the
termination, cancellation or nonrenewal of a franchise, the Commissioner shall
promptly inform the manufacturer that a timely petition has been filed, and the
franchise in question shall continue in effect pending the Commissioner's
decision. The Commissioner must conduct the hearing and render a final
determination no later than 180 days after a petition has been filed; provided,
however, that the Commissioner may extend such period of time upon application
of a party and for good cause shown, or upon the consent of all parties to the
proceeding. If the termination, cancellation or nonrenewal is pursuant to
G.S. 20-305(6)c1III then the Commissioner shall give the proceeding priority
consideration and shall render his final determination no later than 60 90
days after the petition has been filed. Any parties to a hearing by
the Commissioner under this section shall have a right of review of the
decision in a court of competent jurisdiction pursuant to Chapter 150B of the
General Statutes.
a. Notwithstanding the terms, provisions or conditions of any franchise or the terms or provisions of any waiver, good cause shall exist for the purposes of a termination, cancellation or nonrenewal when:
1. There is a failure by the new motor vehicle dealer to comply with a provision of the franchise which provision is both reasonable and of material significance to the franchise relationship provided that the dealer has been notified in writing of the failure within 180 days after the manufacturer first acquired knowledge of such failure;
2. If the failure by the new motor vehicle dealer relates to the performance of the new motor vehicle dealer in sales or service, then good cause shall be defined as the failure of the new motor vehicle dealer to comply with reasonable performance criteria established by the manufacturer if the new motor vehicle dealer was apprised by the manufacturer in writing of the failure; and
I. The notification stated that notice was provided of failure of performance pursuant to this section;
II. The new motor vehicle dealer was afforded a reasonable opportunity, for a period of not less than 180 days, to comply with the criteria; and
III. The new motor vehicle dealer failed to demonstrate substantial progress towards compliance with the manufacturer's performance criteria during such period and the new motor vehicle dealer's failure was not primarily due to economic or market factors within the dealer's relevant market area which were beyond the dealer's control.
b. The manufacturer shall have the burden of proof under this section.
c. Notification of Termination, Cancellation and Nonrenewal.-
1. Notwithstanding the terms, provisions or conditions of any franchise prior to the termination, cancellation or nonrenewal of any franchise, the manufacturer shall furnish notification of termination, cancellation or nonrenewal to the new motor vehicle dealer as follows:
I. In the manner described in G.S. 20-305(6)c2 below; and
II. Not less than 90 days prior to the effective date of such termination, cancellation or nonrenewal; or
III. Not less than 15 days prior to the effective date of such termination, cancellation or nonrenewal with respect to any of the following:
A. Insolvency of the new motor vehicle dealer, or filing of any petition by or against the new motor vehicle dealer under any bankruptcy or receivership law;
B. Failure of the new motor vehicle dealer to conduct its customary sales and service operations during its customary business hours for seven consecutive business days, except for acts of God or circumstances beyond the direct control of the new motor vehicle dealer;
C. Revocation of any license which the new motor vehicle dealer is required to have to operate a dealership;
D. Conviction of a felony involving moral turpitude, under the laws of this State or any other state, or territory, or the District of Columbia.
IV. Not less than 180 days prior to the effective date of such termination or cancellation where the manufacturer or distributor is discontinuing the sale of the product line.
2. Notification under this section shall be in writing; shall be by certified mail or personally delivered to the new motor vehicle dealer; and shall contain:
I. A statement of intention to terminate, cancel or not to renew the franchise;
II. A statement of the reasons for the termination, cancellation or nonrenewal; and
III. The date on which the termination, cancellation or nonrenewal takes effect.
3. Notification provided in G.S. 20-305(6)c1II of 90 days prior to the effective date of such termination, cancellation or renewal may run concurrent with the 180 days designated in G.S. 20-305(6)a2II provided the notification is clearly designated by a separate written document mailed by certified mail or personally delivered to the new motor vehicle dealer.
d. Payments.-
1. Upon the termination, nonrenewal or cancellation of any franchise by the manufacturer or distributor, pursuant to this section, the new motor vehicle dealer shall be allowed fair and reasonable compensation by the manufacturer for the:
I. New motor vehicle inventory that has been acquired from the manufacturer within 18 months, at a price not to exceed the original manufacturer's price to the dealer, and which has not been altered or damaged, and which has not been driven more than 200 miles, and for which no certificate of title has been issued;
II. Unused, undamaged and unsold supplies and parts purchased from the manufacturer, at a price not to exceed the original manufacturer's price to the dealer, provided such supplies and parts are currently offered for sale by the manufacturer or distributor in its current parts catalogs and are in salable condition;
III. Equipment and furnishings that have not been altered or damaged and that have been required by the manufacturer or distributor to be purchased by the new motor vehicle dealer from the manufacturer or distributor, or their approved sources; and
IV. Special tools that have not been altered or damaged and that have been required by the manufacturer or distributor to be purchased by the new motor vehicle dealer from the manufacturer or distributor, or their approved sources within five years immediately preceding the termination, nonrenewal or cancellation of the franchise.
2. Fair and reasonable compensation for the above shall be paid by the manufacturer within 90 days of the effective date of termination, cancellation or nonrenewal, provided the new motor vehicle dealer has clear title to the inventory and has conveyed title and possession to the manufacturer.
e. Dealership Facilities Assistance upon Termination, Cancellation or Nonrenewal.-
In the event of the termination, cancellation or nonrenewal by the manufacturer or distributor under this section, except termination, cancellation or nonrenewal for insolvency, license revocation, conviction of a crime involving moral turpitude, or fraud by a dealer-owner:
1. Subject to paragraph 3, if the new motor vehicle dealer is leasing the dealership facilities from a lessor other than the manufacturer, the manufacturer shall pay the new motor vehicle dealer a sum equivalent to the rent for the unexpired term of the lease or one year's rent, whichever is less, or such longer term as is provided in the franchise agreement between the dealer and manufacturer; or
2. Subject to paragraph 3, if the new motor vehicle dealer owns the dealership facilities, the manufacturer shall pay the new motor vehicle dealer a sum equivalent to the reasonable rental value of the dealership facilities for one year.
3. Provided nothing in this paragraph e. shall relieve a lessee or owner, as the case may be, from the obligation to mitigate damages under the lease, nor prevent a manufacturer from occupying and using the dealership facilities while paying rent under subsections 1 and 2, nor prevent a manufacturer from obligations by negotiating a lease termination, a sublease or a new lease. Any amounts recovered by the lessee or owner resulting from mitigation of damages shall be deducted from the amount due from the manufacturer.
f. The provisions of paragraphs d. and e. above shall not be applicable when the termination, nonrenewal or cancellation of the franchise agreement is the result of the voluntary act of the dealer."
Sec. 2. This act becomes effective October 1, 1993, and shall only apply to petitions filed on or after that date.
In the General Assembly read three times and ratified this the 7th day of June, 1993.
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Dennis A. Wicker
President of the Senate
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Daniel Blue, Jr.
Speaker of the House of Representatives