This document includes Senate Committee Amendments incorporated into the bill on Mon, Mar 2, 2015 at 1:15 PM by cmillar.
Representative Mike K. McKell proposes the following substitute bill:


1     
NEW CAR DEALERSHIP FRANCHISE AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Mike K. McKell

5     
Senate Sponsor: Curtis S. Bramble

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to new automobile franchises.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     addresses the procedure by which a franchisor may establish or relocate a dealership
14     in the same line-make as an existing dealership in the relevant market area;
15          ▸     modifies the membership of the Utah Motor Vehicle Franchise Advisory Board;
16          ▸     provides that an affected municipality may participate in a hearing before the Utah
17     Motor Vehicle Franchise Advisory Board;
18          ▸     clarifies who may appeal a final decision of the executive director of the
19     Department of Commerce;
20          ▸     requires the Utah Motor Vehicle Franchise Advisory Board to submit an annual
21     report to the Business and Labor Interim Committee; and
22          ▸     makes technical and conforming changes.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          13-14-102, as last amended by Laws of Utah 2010, Chapter 33
30          13-14-103, as last amended by Laws of Utah 2010, Chapter 286
31          13-14-104, as last amended by Laws of Utah 2008, Chapters 362 and 382
32          13-14-302, as last amended by Laws of Utah 2011, Chapter 203
33          13-14-302.5, as enacted by Laws of Utah 2010, Chapter 41
34          13-14-304, as last amended by Laws of Utah 2008, Chapter 362
35          13-14-306, as last amended by Laws of Utah 2008, Chapter 362
36     ENACTS:
37          13-14-310, Utah Code Annotated 1953
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 13-14-102 is amended to read:
41          13-14-102. Definitions.
42          As used in this chapter:
43          (1) "Advisory board" or "board" means the Utah Motor Vehicle Franchise Advisory
44     Board created in Section 13-14-103.
45          (2) "Affected municipality" means an incorporated city or town:
46          (a) that is located in the notice area; and
47          (b) (i) within which a franchisor is proposing a new or relocated dealership that is
48     within the relevant market area of an existing dealership of the same line-make owned by
49     another franchisee; or
50          (ii) within which an existing dealership is located and a franchisor is proposing a new
51     or relocated dealership within the relevant market area of that existing dealership of the same
52     line-make.
53          [(2)] (3) "Affiliate" has the meaning set forth in Section 16-10a-102.
54          [(3)] (4) "Aftermarket product" means any product or service not included in the
55     franchisor's suggested retail price of the new motor vehicle, as that price appears on the label
56     required by 15 U.S.C. Sec. 1232(f).
57          [(4)] (5) "Dealership" means a site or location in this state:
58          (a) at which a franchisee conducts the business of a new motor vehicle dealer; and
59          (b) that is identified as a new motor vehicle dealer's principal place of business for
60     licensing purposes under Section 41-3-204.
61          [(5)] (6) "Department" means the Department of Commerce.
62          [(6)] (7) "Executive director" means the executive director of the Department of
63     Commerce.
64          [(7)] (8) (a) "Franchise" or "franchise agreement" means a written agreement, or in the
65     absence of a written agreement, then a course of dealing or a practice for a definite or indefinite
66     period, in which:
67          (i) a person grants to another person a license to use a trade name, trademark, service
68     mark, or related characteristic; and
69          (ii) a community of interest exists in the marketing of new motor vehicles, new motor
70     vehicle parts, and services related to the sale or lease of new motor vehicles at wholesale or
71     retail.
72          (b) "Franchise" or "franchise agreement" includes a sales and service agreement.
73          [(8)] (9) "Franchisee" means a person with whom a franchisor has agreed or permitted,
74     in writing or in practice, to purchase, sell, or offer for sale new motor vehicles manufactured,
75     produced, represented, or distributed by the franchisor.
76          [(9)] (10) "Franchisor" means a person who has, in writing or in practice, agreed with
77     or permits a franchisee to purchase, sell, or offer for sale new motor vehicles manufactured,
78     produced, assembled, represented, or distributed by the franchisor, and includes:
79          (a) the manufacturer, producer, assembler, or distributor of the new motor vehicles;
80          (b) an intermediate distributor; and
81          (c) an agent, officer, or field or area representative of the franchisor.
82          [(10)] (11) "Lead" means the referral by a franchisor to a franchisee of a potential
83     customer whose contact information was obtained from a franchisor's program, process, or
84     system designed to generate referrals for the purchase or lease of a new motor vehicle, or for
85     service work related to the franchisor's vehicles.
86          [(11)] (12) "Line-make" means:
87          (a) for other than a recreational vehicle, the motor vehicles that are offered for sale,
88     lease, or distribution under a common name, trademark, service mark, or brand name of the
89     franchisor; or
90          (b) for a recreational vehicle, a specific series of recreational vehicle product that:
91          (i) is identified by a common series trade name or trademark;
92          (ii) is targeted to a particular market segment, as determined by decor, features,
93     equipment, size, weight, and price range;
94          (iii) has a length and floor plan that distinguish the recreational vehicle from other
95     recreational vehicles with substantially the same decor, features, equipment, size, weight, and
96     price;
97          (iv) belongs to a single, distinct classification of recreational vehicle product type
98     having a substantial degree of commonality in the construction of the chassis, frame, and body;
99     and
100          (v) a franchise agreement authorizes a dealer to sell.
101          [(12)] (13) "Mile" means 5,280 feet.
102          [(13)] (14) "Motor home" means a self-propelled vehicle, primarily designed as a
103     temporary dwelling for travel, recreational, or vacation use.
104          [(14)] (15) (a) "Motor vehicle" means:
105          (i) a travel trailer;
106          (ii) except as provided in Subsection [(14)] (15)(b), a motor vehicle as defined in
107     Section 41-3-102;
108          (iii) a semitrailer as defined in Section 41-1a-102;
109          (iv) a trailer as defined in Section 41-1a-102; and
110          (v) a recreational vehicle.
111          (b) "Motor vehicle" does not include:
112          (i) a motorcycle as defined in Section 41-1a-102;
113          (ii) an off-highway vehicle as defined in Section 41-3-102; and
114          (iii) a small trailer as defined in Section 41-3-102.
115          [(15)] (16) "New motor vehicle" means a motor vehicle as defined in Subsection [(14)]
116     (15) that has never been titled or registered and has been driven less than 7,500 miles, unless
117     the motor vehicle is a trailer, travel trailer, or semitrailer, in which case the mileage limit does
118     not apply.
119          [(16)] (17) "New motor vehicle dealer" is a person who is licensed under Subsection
120     41-3-202(1)(a) to sell new motor vehicles.
121          [(17)] (18) "Notice" or "notify" includes both traditional written communications and
122     all reliable forms of electronic communication unless expressly prohibited by statute or rule.
123          (19) "Notice area" means the geographic area that is:
124          (a) within a radius of at least six miles and no more than 10 miles from the site of an
125     existing dealership; and
126          (b) located within a county with a population of at least 225,000.
127          (20) "Primary market area" means:
128          (a) for an existing dealership, the geographic area established by the franchisor that the
129     existing dealership is intended to serve; or
130          (b) for a new or relocated dealership, the geographic area proposed by the franchisor
131     that the new or relocated dealership is intended to serve.
132          [(18)] (21) (a) "Recreational vehicle" means a vehicular unit other than a mobile home,
133     primarily designed as a temporary dwelling for travel, recreational, or vacation use, that is
134     either self-propelled or pulled by another vehicle.
135          (b) "Recreational vehicle" includes:
136          (i) a travel trailer;
137          (ii) a camping trailer;
138          (iii) a motor home;
139          (iv) a fifth wheel trailer; and
140          (v) a van.
141          [(19)] (22) (a) "Relevant market area," except with respect to recreational vehicles,
142     means:
143          [(i) the county in which a dealership is to be established or relocated; and]
144          [(ii) the area within a 15-mile radius from the site of the new or relocated dealership.]
145          (i) as applied to an existing dealership that is located in a county with a population of
146     less than 225,000:
147          (A) the county in which the existing dealership is located; and
148          (B) the area within a 15-mile radius of the existing dealership; or
149          (ii) as applied to an existing dealership that is located in a county with a population of
150     225,000 or more, the area within a 10-mile radius of the existing dealership.
151          (b) "Relevant market area," with respect to recreational vehicles, means:
152          (i) the county in which the dealership is to be established or relocated; and
153          (ii) the area within a 35-mile radius from the site of the [new or relocated] existing
154     dealership.
155          [(20)] (23) "Sale, transfer, or assignment" means any disposition of a franchise or an
156     interest in a franchise, with or without consideration, including a bequest, inheritance, gift,
157     exchange, lease, or license.
158          [(21)] (24) "Serve" or "served," unless expressly indicated otherwise by statute or rule,
159     includes any reliable form of communication.
160          [(22)] (25) "Site-control agreement" means an agreement, however denominated and
161     regardless of [its] the agreement's form or of the parties to [it] the agreement, that has the effect
162     of:
163          (a) controlling in any way the use and development of the premises upon which a
164     franchisee's business operations are located;
165          (b) requiring a franchisee to establish or maintain an exclusive dealership facility on
166     the premises upon which the franchisee's business operations are located; or
167          (c) restricting the ability of the franchisee or, if the franchisee leases the dealership
168     premises, the franchisee's lessor to transfer, sell, lease, develop, redevelop, or change the use of
169     some or all of the dealership premises, whether by sublease, lease, collateral pledge of lease,
170     right of first refusal to purchase or lease, option to purchase or lease, or any similar
171     arrangement.
172          [(23)] (26) "Travel trailer," "camping trailer," or "fifth wheel trailer" means a portable
173     vehicle without motive power, designed as a temporary dwelling for travel, recreational, or
174     vacation use that does not require a special highway movement permit when drawn by a
175     self-propelled motor vehicle.
176          [(24)] (27) "Written," "write," "in writing," or other variations of those terms shall
177     include all reliable forms of electronic communication.
178          Section 2. Section 13-14-103 is amended to read:
179          13-14-103. Utah Motor Vehicle Franchise Advisory Board -- Creation --
180     Appointment of members -- Alternate members -- Chair -- Quorum -- Conflict of interest.
181          (1) There is created within the department the Utah Motor Vehicle Franchise Advisory
182     Board that consists of:
183          (a) the executive director or the executive director's designee; and
184          (b) [seven] 11 members appointed by the executive director, with the concurrence of
185     the governor as follows:
186          (i) one recreational motor vehicle franchisee;
187          (ii) three new motor vehicle franchisees from different congressional districts in the
188     state; [and]
189          (iii) [(A)] three members representing motor vehicle franchisors registered by the
190     department pursuant to Section 13-14-105;
191          [(B)] (iv) three members of the general public, none of whom shall be related to any
192     franchisee; [or] and
193          [(C) three members consisting of any combination of these representatives under this
194     Subsection (1)(b)(iii).]
195          (v) one representative of the Utah League of Cities and Towns.
196          (2) (a) The executive director shall appoint, with the concurrence of the governor,
197     [three] five alternate members, with one alternate from each of the designations [set forth]
198     described in Subsections (1)(b)(i)[, (1)(b)(ii), and (1)(b)(iii)] through (v), except that the new
199     motor vehicle franchisee alternate [or alternates] for the designation under Subsection (1)(b)(ii)
200     may be from any congressional district.
201          (b) An alternate shall take the place of a regular advisory board member from the same
202     designation at a meeting of the advisory board where that regular advisory board member is
203     absent or otherwise disqualified from participating in the advisory board meeting.
204          (3) (a) (i) Members of the advisory board appointed under Subsections (1)(b) and (2)
205     are appointed for a term of four years.
206          (ii) No specific term applies to the executive director or the executive director's
207     designee.
208          (b) The executive director may adjust the term of members who were appointed to the
209     advisory board prior to July 1, 2001, by extending the unexpired term of a member for up to
210     two additional years in order to insure that approximately half of the members are appointed
211     every two years.
212          (c) In the event of a vacancy on the advisory board of a member appointed under
213     Subsection (1)(b) or (2), the executive director with the concurrence of the governor, shall
214     appoint an individual to complete the unexpired term of the member whose office is vacant.
215          (d) A member may not be appointed to more than two consecutive terms.
216          (4) (a) The executive director or the executive director's designee is the chair of the
217     advisory board.
218          (b) The department shall keep a record of all hearings, proceedings, transactions,
219     communications, and recommendations of the advisory board.
220          (5) (a) Four or more members of the advisory board constitute a quorum for the
221     transaction of business.
222          (b) The action of a majority of a quorum present is considered the action of the
223     advisory board.
224          (6) (a) A member of the advisory board may not participate as a board member in a
225     proceeding or hearing:
226          (i) involving the member's licensed business or employer; or
227          (ii) when a member, a member's business or family, or employer has a pecuniary
228     interest in the outcome or other conflict of interest concerning an issue before the advisory
229     board.
230          (b) If a member of the advisory board is disqualified under Subsection (6)(a), the
231     executive director shall select the appropriate alternate member to act on the issue before the
232     advisory board as provided in Subsection (2).
233          (7) Except for the executive director or the executive director's designee, an individual
234     may not be appointed or serve on the advisory board while holding any other elective or
235     appointive state or federal office.
236          (8) A member may not receive compensation or benefits for the member's service, but
237     may receive per diem and travel expenses in accordance with:
238          (a) Section 63A-3-106;
239          (b) Section 63A-3-107; and
240          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
241     63A-3-107.
242          (9) The department shall provide necessary staff support to the advisory board.
243          Section 3. Section 13-14-104 is amended to read:
244          13-14-104. Powers and duties of the advisory board and the executive director.
245          (1) (a) Except as provided in Subsection 13-14-106(3), the advisory board shall make
246     recommendations to the executive director on the administration and enforcement of this
247     chapter, including adjudicative and rulemaking proceedings.
248          (b) The executive director shall:
249          (i) consider the advisory board's recommendations; and
250          (ii) issue any rules or final [decision] decisions by the department.
251          (2) The executive director, in consultation with the advisory board, shall make rules for
252     the administration of this chapter in accordance with Title 63G, Chapter 3, Utah Administrative
253     Rulemaking Act.
254          (3) (a) An adjudicative proceeding under this chapter shall be conducted in accordance
255     with Title 63G, Chapter 4, Administrative Procedures Act.
256          (b) In an adjudicative proceeding under this chapter, any order issued by the executive
257     director:
258          (i) shall comply with Section 63G-4-208, whether the proceeding is a formal or an
259     informal adjudicative proceeding under Title 63G, Chapter 4, Administrative Procedures Act;
260     and
261          (ii) if the order modifies or rejects a finding of fact in a recommendation from the
262     advisory board, shall be made on the basis of information learned from the executive director's:
263          (A) personal attendance at the hearing; or
264          (B) review of the record developed at the hearing.
265          (4) The executive director's decision under this section shall be made available to the
266     public.
267          Section 4. Section 13-14-302 is amended to read:
268          13-14-302. Issuance of additional franchises -- Relocation of existing franchisees.
269          (1) Except as provided in Subsection (6), a franchisor shall provide the notice and
270     documentation required under Subsection (2) if the franchisor seeks to:
271          (a) enter into a franchise agreement establishing a motor vehicle dealership within a
272     relevant market area where the same line-make is represented by another franchisee; or
273          (b) relocate an existing motor vehicle franchisee.
274          (2) In determining whether a new or relocated dealership is within a relevant market
275     area where the same line-make is represented by an existing dealership, the relevant market
276     area is measured from the closest property boundary line of the existing dealership to the
277     closest property boundary line of the new or relocated dealership.
278          [(2)] (3) (a) If a franchisor seeks to take an action listed in Subsection (1), [prior to]
279     before taking the action, the franchisor shall, in writing, notify the advisory board, Ŝ→ the clerk
279a     of ←Ŝ each
280     affected municipality, and each franchisee in that line-make in the relevant market area.
281          (b) The notice required by Subsection [(2)] (3)(a) shall:
282          (i) specify the intended action described under Subsection (1);
283          (ii) specify the good cause on which it intends to rely for the action; and
284          (iii) be delivered by registered or certified mail or by any form of reliable delivery
285     through which receipt is verifiable.
286          [(3)] (4) (a) Except as provided in Subsection [(3)] (4)(c), the franchisor shall provide
287     to the advisory board, each affected municipality, and each franchisee in that line-make in the
288     relevant market area the following documents relating to the notice described under Subsection
289     [(2)] (3):
290          (i) (A) any aggregate economic data and all existing reports, analyses, or opinions
291     based on the aggregate economic data that were relied on by the franchisor in reaching the
292     decision to proceed with the action described in the notice; and
293          (B) the aggregate economic data under Subsection [(3)] (4)(a)(i)(A) includes:
294          (I) motor vehicle registration data;
295          (II) market penetration data; and
296          (III) demographic data;
297          (ii) written documentation that the franchisor has in [its] the francisor's possession that
298     it intends to rely on in establishing good cause under Section 13-14-306 relating to the notice;
299          (iii) a statement that describes in reasonable detail how the establishment of a new
300     franchisee or the relocation of an existing franchisee will affect the amount of business
301     transacted by other franchisees of the same line-make in the relevant market area, as compared
302     to business available to the franchisees; and
303          (iv) a statement that describes in reasonable detail how the establishment of a new
304     franchisee or the relocation of an existing franchisee will be beneficial or injurious to the
305     public welfare or public interest.
306          (b) The franchisor shall provide the documents described under Subsection [(3)] (4)(a)
307     with the notice required under Subsection [(2)] (3).
308          (c) The franchisor is not required to disclose any documents under Subsection [(3)]
309     (4)(a) if:
310          (i) the documents would be privileged under the Utah Rules of Evidence;
311          (ii) the documents contain confidential proprietary information;
312          (iii) the documents are subject to federal or state privacy laws;
313          (iv) the documents are correspondence between the franchisor and existing franchisees
314     in that line-make in the relevant market area; or
315          (v) the franchisor reasonably believes that disclosure of the documents would violate:
316          (A) the privacy of another franchisee; or
317          (B) Section 13-14-201.
318          [(4)] (5) (a) Within [45] 30 days of receiving notice required by Subsection [(2)] (3),
319     any franchisee that is required to receive notice under Subsection [(2)] (3) may protest to the
320     advisory board the establishment or relocation of the dealership.
321          (b) [When] No later than 10 days after the day on which a protest is filed, the
322     department shall inform the franchisor that:
323          (i) a timely protest has been filed;
324          (ii) a hearing is required;
325          (iii) the franchisor may not establish or relocate the proposed dealership until the
326     advisory board has held a hearing; and
327          (iv) the franchisor may not establish or relocate a proposed dealership if the executive
328     director determines that there is not good cause for permitting the establishment or relocation
329     of the dealership.
330          [(5)] (6) If multiple protests are filed under Subsection [(4)] (5), hearings may be
331     consolidated to expedite the disposition of the issue.
332          [(6)] (7) Subsections (1) through [(5)] (6) do not apply to a relocation of an existing or
333     successor dealer to a location that is:
334          (a) within the same county and less than two [aeronautical] miles from the existing
335     location of the existing or successor franchisee's dealership; or
336          (b) further away from a dealership of a franchisee of the same line-make.
337          [(7)] (8) For purposes of this section:
338          (a) relocation of an existing franchisee's dealership in excess of two [aeronautical]
339     miles from [its] the dealership's existing location is considered the establishment of an
340     additional franchise in the line-make of the relocating franchise;
341          (b) the reopening in a relevant market area of a dealership that has not been in
342     operation for one year or more is considered the establishment of an additional motor vehicle
343     dealership; and
344          (c) (i) except as provided in Subsection [(7)] (8)(c)(ii), the establishment of a
345     temporary additional place of business by a recreational vehicle franchisee is considered the
346     establishment of an additional motor vehicle dealership; and
347          (ii) the establishment of a temporary additional place of business by a recreational
348     vehicle franchisee is not considered the establishment of an additional motor vehicle dealership
349     if the recreational vehicle franchisee is participating in a trade show where three or more
350     recreational vehicle dealers are participating.
351          Section 5. Section 13-14-302.5 is amended to read:
352          13-14-302.5. Application of new franchise process with respect to certain
353     terminated franchises.
354          (1) As used in this section:
355          (a) "Covered franchisee":
356          (i) means a person who was a franchisee under a pre-bankruptcy franchise; and
357          (ii) is a "covered dealership," as that term is defined in the federal franchise arbitration
358     law.
359          (b) "Covered franchisor":
360          (i) means a person who was a franchisor under a pre-bankruptcy franchise; and
361          (ii) is a "covered manufacturer," as that term is defined in the federal franchise
362     arbitration law.
363          (c) "Federal franchise arbitration law" means Section 747 of the Consolidated
364     Appropriations Act of 2010, Pub. L. No. 111-117.
365          (d) "New franchisor":
366          (i) means a person who is a franchisor of the same line-make as the franchisor under a
367     pre-bankruptcy franchise that has become a terminated franchise; and
368          (ii) is a "covered manufacturer," as that term is defined in the federal franchise
369     arbitration law.
370          (e) "Pre-bankruptcy franchise" means a franchise in effect as of October 3, 2008.
371          (f) "Reinstated franchise" means:
372          (i) a terminated franchise that a reinstatement order determines should be reinstated,
373     renewed, continued, assigned, or assumed; or
374          (ii) a franchise that a reinstatement order otherwise determines should be reestablished
375     in or added to the dealer network of a new franchisor in the geographic area where the covered
376     franchisee was located before October 3, 2008.
377          (g) "Reinstated franchisee" means a covered franchisee:
378          (i) whose franchise became a terminated franchise with less than 90 days' notice prior
379     to termination; and
380          (ii) that becomes entitled to a reinstated franchise under a reinstatement order.
381          (h) "Reinstatement order" means an arbitrator's written determination:
382          (i) in an arbitration proceeding held under the federal franchise arbitration law; and
383          (ii) (A) that a terminated franchise should be reinstated, renewed, continued, assigned,
384     or assumed; or
385          (B) that a covered franchisee should otherwise be reestablished as a franchisee in or
386     added to the dealer network of a new franchisor in the geographic area where the covered
387     franchisee was located before October 3, 2008.

388          (i) "Terminated franchise" means a covered franchisee's pre-bankruptcy franchise that
389     was terminated or not continued or renewed as a result of a bankruptcy proceeding involving a
390     covered franchisor as the bankruptcy debtor.
391          (2) The process under Sections 13-14-302, 13-14-304, and 13-14-306 for the issuance
392     of a franchise, including Subsections 13-14-302[(4)](5) and [(5)] (6) and Section 13-14-304
393     relating to a protest by another franchisee in the line-make in the relevant market area against
394     the establishment or relocation of a franchise, does not apply to a reinstated franchise or
395     reinstated franchisee.
396          Section 6. Section 13-14-304 is amended to read:
397          13-14-304. Hearing regarding termination, relocation, or establishment of
398     franchises.
399          (1) (a) Within 10 days [of receiving] after the day on which the advisory board receives
400     an application from a franchisee under Subsection 13-14-301(3) challenging [its] a franchisor's
401     right to terminate or not continue a franchise, or an application under Section 13-14-302
402     challenging the establishment or relocation of a franchise, the executive director shall:
403          (i) enter an order designating the time and place for the hearing; and
404          (ii) send a copy of the order by certified or registered mail, with return receipt
405     requested, or by any form of reliable delivery through which receipt is verifiable to:
406          (A) the applicant;
407          (B) the franchisor; and
408          (C) if the application involves the establishment of a new franchise or the relocation of
409     an existing dealership, [to all franchisees] each affected municipality and to each franchisee in
410     the relevant market area engaged in the business of offering to sell or lease the same line-make.
411          (b) A copy of an order mailed under Subsection (1)(a) shall be addressed to the
412     franchisee at the place where the franchisee's business is conducted.
413          (2) [Any] An affected municipality and any other person who can establish an interest
414     in the application may intervene as a party to the hearing, whether or not that person receives
415     notice.
416          (3) Any person, including an affected municipality, may appear and testify on the
417     question of the public interest in the termination or noncontinuation of a franchise or in the
418     establishment of an additional franchise.
419          (4) (a) (i) Any hearing ordered under Subsection (1) shall be conducted no later than
420     [120] 90 days after the day on which the application for hearing is filed.
421          (ii) A final decision on the challenge shall be made by the executive director no later
422     than [30] 20 days after the day on which the hearing ends.
423          (b) Failure to comply with the time requirements of Subsection (4)(a) is considered a
424     determination that the franchisor acted with good cause or, in the case of a protest of a
425     proposed establishment or relocation of a dealer, that good cause exists for permitting the
426     proposed additional or relocated new motor vehicle dealer, unless:
427          (i) the delay is caused by acts of the franchisor or the additional or relocating
428     franchisee; or
429          (ii) the delay is waived by the parties.
430          (5) The franchisor has the burden of proof to establish by a preponderance of the
431     evidence that under the provisions of this chapter it should be granted permission to:
432          (a) terminate or not continue the franchise;
433          (b) enter into a franchise agreement establishing an additional franchise; or
434          (c) relocate the dealership of an existing franchisee.
435          (6) Any party to the hearing may appeal the executive director's final decision in
436     accordance with Title 63G, Chapter 4, Administrative Procedures Act, including the franchisor,
437     an existing franchisee of the same line-make whose relevant market area includes the site of the
438     proposed dealership, or an affected municipality.
439          Section 7. Section 13-14-306 is amended to read:
440          13-14-306. Evidence to be considered in determining cause to relocate or
441     establish a new franchised dealership.
442          In determining whether a franchisor has established good cause for relocating an
443     existing franchisee or establishing a new franchised dealership for the same line-make in a
444     given relevant market area, the advisory board and the executive director shall consider:
445          (1) the amount of business transacted by other franchisees of the same line-make in
446     that relevant market area, as compared to business available to the franchisees;
447          (2) the investment necessarily made and obligations incurred by other franchisees of
448     the same line-make in that relevant market area in the performance of their part of their
449     franchisee agreements;
450          (3) the permanency of the existing and proposed investment;
451          (4) whether it is injurious or beneficial to the public welfare or public interest for an
452     additional franchise to be established[;] including:
453          (a) the impact on any affected municipality;
454          (b) population growth trends in any affected municipality;
455          (c) the number of dealerships in the primary market area of the new or relocated
456     dealership compared to the number of dealerships in each primary market area adjacent to the
457     new or relocated dealership's primary market area; and
458          (d) how the new or relocated dealership would impact the distance and time that an
459     individual in the new or relocated dealership's primary market area would have to travel to
460     access a dealership in the same line-make as the new or relocated dealership.
461          (5) whether the franchisees of the same line-make in that relevant market area are
462     providing adequate service to consumers for the motor vehicles of the line-make, which shall
463     include the adequacy of:
464          (a) the motor vehicle sale and service facilities;
465          (b) equipment;
466          (c) supply of vehicle parts; and
467          (d) qualified service personnel; and
468          (6) whether the relocation or establishment would cause any material negative
469     economic effect on a dealer of the same line-make in the relevant market area.
470          Section 8. Section 13-14-310 is enacted to read:
471          13-14-310. Reporting requirement.
472          By November 30 of each year, the advisory board shall submit an annual report to the
473     Business and Labor Interim Committee that, for the 12 months before the day on which the
474     report is submitted, describes:
475          (1) the number of applications for a new or relocated dealership that the advisory board
476     received; and
477          (2) for each application described in Subsection (1):
478          (a) the number of protests that the advisory board received;
479          (b) whether the advisory board conducted a hearing;
480          (c) if the advisory board conducted a hearing, the disposition of the hearing; and
481          (d) the basis for any disposition described in Subsection (2)(c).