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     Cosponsors:
7     Kim Coleman
Rich Cunningham
John Knotwell

8     

9     LONG TITLE
10     General Description:
11          This bill modifies provisions relating to new automobile franchises.
12     Highlighted Provisions:
13          This bill:
14          ▸     defines terms;
15          ▸     addresses the procedure by which a franchisor may establish or relocate a dealership
16     in the same line-make as an existing dealership in the relevant market area;
17          ▸     modifies the membership of the Utah Motor Vehicle Franchise Advisory Board;
18          ▸     provides that an affected municipality may participate in a hearing before the Utah
19     Motor Vehicle Franchise Advisory Board;
20          ▸     clarifies who may appeal a final decision of the executive director of the
21     Department of Commerce;
22          ▸     requires the Utah Motor Vehicle Franchise Advisory Board to submit an annual
23     report to the Business and Labor Interim Committee; and
24          ▸     makes technical and conforming changes.
25     Money Appropriated in this Bill:
26          None
27     Other Special Clauses:
28          None
29     Utah Code Sections Affected:
30     AMENDS:
31          13-14-102, as last amended by Laws of Utah 2010, Chapter 33
32          13-14-103, as last amended by Laws of Utah 2010, Chapter 286
33          13-14-104, as last amended by Laws of Utah 2008, Chapters 362 and 382
34          13-14-302, as last amended by Laws of Utah 2011, Chapter 203
35          13-14-302.5, as enacted by Laws of Utah 2010, Chapter 41
36          13-14-304, as last amended by Laws of Utah 2008, Chapter 362
37          13-14-306, as last amended by Laws of Utah 2008, Chapter 362
38     ENACTS:
39          13-14-310, Utah Code Annotated 1953
40     

41     Be it enacted by the Legislature of the state of Utah:
42          Section 1. Section 13-14-102 is amended to read:
43          13-14-102. Definitions.
44          As used in this chapter:
45          (1) "Advisory board" or "board" means the Utah Motor Vehicle Franchise Advisory
46     Board created in Section 13-14-103.
47          (2) "Affected municipality" means an incorporated city or town:
48          (a) that is located in the notice area; and
49          (b) (i) within which a franchisor is proposing a new or relocated dealership that is
50     within the relevant market area of an existing dealership of the same line-make owned by
51     another franchisee; or
52          (ii) within which an existing dealership is located and a franchisor is proposing a new
53     or relocated dealership within the relevant market area of that existing dealership of the same
54     line-make.
55          [(2)] (3) "Affiliate" has the meaning set forth in Section 16-10a-102.
56          [(3)] (4) "Aftermarket product" means any product or service not included in the
57     franchisor's suggested retail price of the new motor vehicle, as that price appears on the label
58     required by 15 U.S.C. Sec. 1232(f).
59          [(4)] (5) "Dealership" means a site or location in this state:
60          (a) at which a franchisee conducts the business of a new motor vehicle dealer; and
61          (b) that is identified as a new motor vehicle dealer's principal place of business for
62     licensing purposes under Section 41-3-204.
63          [(5)] (6) "Department" means the Department of Commerce.
64          [(6)] (7) "Executive director" means the executive director of the Department of
65     Commerce.
66          [(7)] (8) (a) "Franchise" or "franchise agreement" means a written agreement, or in the
67     absence of a written agreement, then a course of dealing or a practice for a definite or indefinite
68     period, in which:
69          (i) a person grants to another person a license to use a trade name, trademark, service
70     mark, or related characteristic; and
71          (ii) a community of interest exists in the marketing of new motor vehicles, new motor
72     vehicle parts, and services related to the sale or lease of new motor vehicles at wholesale or
73     retail.
74          (b) "Franchise" or "franchise agreement" includes a sales and service agreement.
75          [(8)] (9) "Franchisee" means a person with whom a franchisor has agreed or permitted,
76     in writing or in practice, to purchase, sell, or offer for sale new motor vehicles manufactured,
77     produced, represented, or distributed by the franchisor.
78          [(9)] (10) "Franchisor" means a person who has, in writing or in practice, agreed with
79     or permits a franchisee to purchase, sell, or offer for sale new motor vehicles manufactured,
80     produced, assembled, represented, or distributed by the franchisor, and includes:
81          (a) the manufacturer, producer, assembler, or distributor of the new motor vehicles;
82          (b) an intermediate distributor; and
83          (c) an agent, officer, or field or area representative of the franchisor.
84          [(10)] (11) "Lead" means the referral by a franchisor to a franchisee of a potential
85     customer whose contact information was obtained from a franchisor's program, process, or
86     system designed to generate referrals for the purchase or lease of a new motor vehicle, or for
87     service work related to the franchisor's vehicles.
88          [(11)] (12) "Line-make" means:
89          (a) for other than a recreational vehicle, the motor vehicles that are offered for sale,
90     lease, or distribution under a common name, trademark, service mark, or brand name of the
91     franchisor; or
92          (b) for a recreational vehicle, a specific series of recreational vehicle product that:
93          (i) is identified by a common series trade name or trademark;
94          (ii) is targeted to a particular market segment, as determined by decor, features,
95     equipment, size, weight, and price range;
96          (iii) has a length and floor plan that distinguish the recreational vehicle from other
97     recreational vehicles with substantially the same decor, features, equipment, size, weight, and
98     price;
99          (iv) belongs to a single, distinct classification of recreational vehicle product type
100     having a substantial degree of commonality in the construction of the chassis, frame, and body;
101     and
102          (v) a franchise agreement authorizes a dealer to sell.
103          [(12)] (13) "Mile" means 5,280 feet.
104          [(13)] (14) "Motor home" means a self-propelled vehicle, primarily designed as a
105     temporary dwelling for travel, recreational, or vacation use.
106          [(14)] (15) (a) "Motor vehicle" means:
107          (i) a travel trailer;
108          (ii) except as provided in Subsection [(14)] (15)(b), a motor vehicle as defined in
109     Section 41-3-102;
110          (iii) a semitrailer as defined in Section 41-1a-102;
111          (iv) a trailer as defined in Section 41-1a-102; and
112          (v) a recreational vehicle.
113          (b) "Motor vehicle" does not include:
114          (i) a motorcycle as defined in Section 41-1a-102;
115          (ii) an off-highway vehicle as defined in Section 41-3-102; and
116          (iii) a small trailer as defined in Section 41-3-102.
117          [(15)] (16) "New motor vehicle" means a motor vehicle as defined in Subsection [(14)]
118     (15) that has never been titled or registered and has been driven less than 7,500 miles, unless
119     the motor vehicle is a trailer, travel trailer, or semitrailer, in which case the mileage limit does
120     not apply.
121          [(16)] (17) "New motor vehicle dealer" is a person who is licensed under Subsection
122     41-3-202(1)(a) to sell new motor vehicles.
123          [(17)] (18) "Notice" or "notify" includes both traditional written communications and
124     all reliable forms of electronic communication unless expressly prohibited by statute or rule.
125          (19) "Notice area" means the geographic area that is:
126          (a) within a radius of at least six miles and no more than 10 miles from the site of an
127     existing dealership; and
128          (b) located within a county with a population of at least 225,000.
129          (20) "Primary market area" means:
130          (a) for an existing dealership, the geographic area established by the franchisor that the
131     existing dealership is intended to serve; or
132          (b) for a new or relocated dealership, the geographic area proposed by the franchisor
133     that the new or relocated dealership is intended to serve.
134          [(18)] (21) (a) "Recreational vehicle" means a vehicular unit other than a mobile home,
135     primarily designed as a temporary dwelling for travel, recreational, or vacation use, that is
136     either self-propelled or pulled by another vehicle.
137          (b) "Recreational vehicle" includes:
138          (i) a travel trailer;
139          (ii) a camping trailer;
140          (iii) a motor home;
141          (iv) a fifth wheel trailer; and
142          (v) a van.
143          [(19)] (22) (a) "Relevant market area," except with respect to recreational vehicles,
144     means:
145          [(i) the county in which a dealership is to be established or relocated; and]
146          [(ii) the area within a 15-mile radius from the site of the new or relocated dealership.]
147          (i) as applied to an existing dealership that is located in a county with a population of
148     less than 225,000:
149          (A) the county in which the existing dealership is located; and
150          (B) the area within a 15-mile radius of the existing dealership; or
151          (ii) as applied to an existing dealership that is located in a county with a population of
152     225,000 or more, the area within a 10-mile radius of the existing dealership.
153          (b) "Relevant market area," with respect to recreational vehicles, means:
154          (i) the county in which the dealership is to be established or relocated; and
155          (ii) the area within a 35-mile radius from the site of the [new or relocated] existing
156     dealership.
157          [(20)] (23) "Sale, transfer, or assignment" means any disposition of a franchise or an
158     interest in a franchise, with or without consideration, including a bequest, inheritance, gift,
159     exchange, lease, or license.
160          [(21)] (24) "Serve" or "served," unless expressly indicated otherwise by statute or rule,
161     includes any reliable form of communication.
162          [(22)] (25) "Site-control agreement" means an agreement, however denominated and
163     regardless of [its] the agreement's form or of the parties to [it] the agreement, that has the effect
164     of:
165          (a) controlling in any way the use and development of the premises upon which a
166     franchisee's business operations are located;
167          (b) requiring a franchisee to establish or maintain an exclusive dealership facility on
168     the premises upon which the franchisee's business operations are located; or
169          (c) restricting the ability of the franchisee or, if the franchisee leases the dealership
170     premises, the franchisee's lessor to transfer, sell, lease, develop, redevelop, or change the use of
171     some or all of the dealership premises, whether by sublease, lease, collateral pledge of lease,
172     right of first refusal to purchase or lease, option to purchase or lease, or any similar
173     arrangement.
174          [(23)] (26) "Travel trailer," "camping trailer," or "fifth wheel trailer" means a portable
175     vehicle without motive power, designed as a temporary dwelling for travel, recreational, or
176     vacation use that does not require a special highway movement permit when drawn by a
177     self-propelled motor vehicle.
178          [(24)] (27) "Written," "write," "in writing," or other variations of those terms shall
179     include all reliable forms of electronic communication.
180          Section 2. Section 13-14-103 is amended to read:
181          13-14-103. Utah Motor Vehicle Franchise Advisory Board -- Creation --
182     Appointment of members -- Alternate members -- Chair -- Quorum -- Conflict of interest.
183          (1) There is created within the department the Utah Motor Vehicle Franchise Advisory
184     Board that consists of:
185          (a) the executive director or the executive director's designee; and
186          (b) [seven] 11 members appointed by the executive director, with the concurrence of
187     the governor as follows:
188          (i) one recreational motor vehicle franchisee;
189          (ii) three new motor vehicle franchisees from different congressional districts in the
190     state; [and]
191          (iii) [(A)] three members representing motor vehicle franchisors registered by the
192     department pursuant to Section 13-14-105;
193          [(B)] (iv) three members of the general public, none of whom shall be related to any
194     franchisee; [or] and
195          [(C) three members consisting of any combination of these representatives under this
196     Subsection (1)(b)(iii).]
197          (v) one representative of the Utah League of Cities and Towns.
198          (2) (a) The executive director shall appoint, with the concurrence of the governor,
199     [three] five alternate members, with one alternate from each of the designations [set forth]
200     described in Subsections (1)(b)(i)[, (1)(b)(ii), and (1)(b)(iii)] through (v), except that the new
201     motor vehicle franchisee alternate [or alternates] for the designation under Subsection (1)(b)(ii)
202     may be from any congressional district.
203          (b) An alternate shall take the place of a regular advisory board member from the same
204     designation at a meeting of the advisory board where that regular advisory board member is
205     absent or otherwise disqualified from participating in the advisory board meeting.
206          (3) (a) (i) Members of the advisory board appointed under Subsections (1)(b) and (2)
207     are appointed for a term of four years.
208          (ii) No specific term applies to the executive director or the executive director's
209     designee.
210          (b) The executive director may adjust the term of members who were appointed to the
211     advisory board prior to July 1, 2001, by extending the unexpired term of a member for up to
212     two additional years in order to insure that approximately half of the members are appointed
213     every two years.
214          (c) In the event of a vacancy on the advisory board of a member appointed under
215     Subsection (1)(b) or (2), the executive director with the concurrence of the governor, shall
216     appoint an individual to complete the unexpired term of the member whose office is vacant.
217          (d) A member may not be appointed to more than two consecutive terms.
218          (4) (a) The executive director or the executive director's designee is the chair of the
219     advisory board.
220          (b) The department shall keep a record of all hearings, proceedings, transactions,
221     communications, and recommendations of the advisory board.
222          (5) (a) Four or more members of the advisory board constitute a quorum for the
223     transaction of business.
224          (b) The action of a majority of a quorum present is considered the action of the
225     advisory board.
226          (6) (a) A member of the advisory board may not participate as a board member in a
227     proceeding or hearing:
228          (i) involving the member's licensed business or employer; or
229          (ii) when a member, a member's business or family, or employer has a pecuniary
230     interest in the outcome or other conflict of interest concerning an issue before the advisory
231     board.
232          (b) If a member of the advisory board is disqualified under Subsection (6)(a), the
233     executive director shall select the appropriate alternate member to act on the issue before the
234     advisory board as provided in Subsection (2).
235          (7) Except for the executive director or the executive director's designee, an individual
236     may not be appointed or serve on the advisory board while holding any other elective or
237     appointive state or federal office.
238          (8) A member may not receive compensation or benefits for the member's service, but
239     may receive per diem and travel expenses in accordance with:
240          (a) Section 63A-3-106;
241          (b) Section 63A-3-107; and
242          (c) rules made by the Division of Finance pursuant to Sections 63A-3-106 and
243     63A-3-107.
244          (9) The department shall provide necessary staff support to the advisory board.
245          Section 3. Section 13-14-104 is amended to read:
246          13-14-104. Powers and duties of the advisory board and the executive director.
247          (1) (a) Except as provided in Subsection 13-14-106(3), the advisory board shall make
248     recommendations to the executive director on the administration and enforcement of this
249     chapter, including adjudicative and rulemaking proceedings.
250          (b) The executive director shall:
251          (i) consider the advisory board's recommendations; and
252          (ii) issue any rules or final [decision] decisions by the department.
253          (2) The executive director, in consultation with the advisory board, shall make rules for
254     the administration of this chapter in accordance with Title 63G, Chapter 3, Utah Administrative
255     Rulemaking Act.
256          (3) (a) An adjudicative proceeding under this chapter shall be conducted in accordance
257     with Title 63G, Chapter 4, Administrative Procedures Act.
258          (b) In an adjudicative proceeding under this chapter, any order issued by the executive
259     director:
260          (i) shall comply with Section 63G-4-208, whether the proceeding is a formal or an
261     informal adjudicative proceeding under Title 63G, Chapter 4, Administrative Procedures Act;
262     and
263          (ii) if the order modifies or rejects a finding of fact in a recommendation from the
264     advisory board, shall be made on the basis of information learned from the executive director's:
265          (A) personal attendance at the hearing; or
266          (B) review of the record developed at the hearing.
267          (4) The executive director's decision under this section shall be made available to the
268     public.
269          Section 4. Section 13-14-302 is amended to read:
270          13-14-302. Issuance of additional franchises -- Relocation of existing franchisees.
271          (1) Except as provided in Subsection (6), a franchisor shall provide the notice and
272     documentation required under Subsection (2) if the franchisor seeks to:
273          (a) enter into a franchise agreement establishing a motor vehicle dealership within a
274     relevant market area where the same line-make is represented by another franchisee; or
275          (b) relocate an existing motor vehicle franchisee.
276          (2) In determining whether a new or relocated dealership is within a relevant market
277     area where the same line-make is represented by an existing dealership, the relevant market
278     area is measured from the closest property boundary line of the existing dealership to the
279     closest property boundary line of the new or relocated dealership.
280          [(2)] (3) (a) If a franchisor seeks to take an action listed in Subsection (1), [prior to]
281     before taking the action, the franchisor shall, in writing, notify the advisory board, the clerk of
282     each affected municipality, and each franchisee in that line-make in the relevant market area.
283          (b) The notice required by Subsection [(2)] (3)(a) shall:
284          (i) specify the intended action described under Subsection (1);
285          (ii) specify the good cause on which it intends to rely for the action; and
286          (iii) be delivered by registered or certified mail or by any form of reliable delivery
287     through which receipt is verifiable.
288          [(3)] (4) (a) Except as provided in Subsection [(3)] (4)(c), the franchisor shall provide
289     to the advisory board, each affected municipality, and each franchisee in that line-make in the
290     relevant market area the following documents relating to the notice described under Subsection
291     [(2)] (3):
292          (i) (A) any aggregate economic data and all existing reports, analyses, or opinions
293     based on the aggregate economic data that were relied on by the franchisor in reaching the
294     decision to proceed with the action described in the notice; and
295          (B) the aggregate economic data under Subsection [(3)] (4)(a)(i)(A) includes:
296          (I) motor vehicle registration data;
297          (II) market penetration data; and
298          (III) demographic data;
299          (ii) written documentation that the franchisor has in [its] the francisor's possession that
300     it intends to rely on in establishing good cause under Section 13-14-306 relating to the notice;
301          (iii) a statement that describes in reasonable detail how the establishment of a new
302     franchisee or the relocation of an existing franchisee will affect the amount of business
303     transacted by other franchisees of the same line-make in the relevant market area, as compared
304     to business available to the franchisees; and
305          (iv) a statement that describes in reasonable detail how the establishment of a new
306     franchisee or the relocation of an existing franchisee will be beneficial or injurious to the
307     public welfare or public interest.
308          (b) The franchisor shall provide the documents described under Subsection [(3)] (4)(a)
309     with the notice required under Subsection [(2)] (3).
310          (c) The franchisor is not required to disclose any documents under Subsection [(3)]
311     (4)(a) if:
312          (i) the documents would be privileged under the Utah Rules of Evidence;
313          (ii) the documents contain confidential proprietary information;
314          (iii) the documents are subject to federal or state privacy laws;
315          (iv) the documents are correspondence between the franchisor and existing franchisees
316     in that line-make in the relevant market area; or
317          (v) the franchisor reasonably believes that disclosure of the documents would violate:
318          (A) the privacy of another franchisee; or
319          (B) Section 13-14-201.
320          [(4)] (5) (a) Within [45] 30 days of receiving notice required by Subsection [(2)] (3),
321     any franchisee that is required to receive notice under Subsection [(2)] (3) may protest to the
322     advisory board the establishment or relocation of the dealership.
323          (b) [When] No later than 10 days after the day on which a protest is filed, the
324     department shall inform the franchisor that:
325          (i) a timely protest has been filed;
326          (ii) a hearing is required;
327          (iii) the franchisor may not establish or relocate the proposed dealership until the
328     advisory board has held a hearing; and
329          (iv) the franchisor may not establish or relocate a proposed dealership if the executive
330     director determines that there is not good cause for permitting the establishment or relocation
331     of the dealership.
332          [(5)] (6) If multiple protests are filed under Subsection [(4)] (5), hearings may be
333     consolidated to expedite the disposition of the issue.
334          [(6)] (7) Subsections (1) through [(5)] (6) do not apply to a relocation of an existing or
335     successor dealer to a location that is:
336          (a) within the same county and less than two [aeronautical] miles from the existing
337     location of the existing or successor franchisee's dealership; or
338          (b) further away from a dealership of a franchisee of the same line-make.
339          [(7)] (8) For purposes of this section:
340          (a) relocation of an existing franchisee's dealership in excess of two [aeronautical]
341     miles from [its] the dealership's existing location is considered the establishment of an
342     additional franchise in the line-make of the relocating franchise;
343          (b) the reopening in a relevant market area of a dealership that has not been in
344     operation for one year or more is considered the establishment of an additional motor vehicle
345     dealership; and
346          (c) (i) except as provided in Subsection [(7)] (8)(c)(ii), the establishment of a
347     temporary additional place of business by a recreational vehicle franchisee is considered the
348     establishment of an additional motor vehicle dealership; and
349          (ii) the establishment of a temporary additional place of business by a recreational
350     vehicle franchisee is not considered the establishment of an additional motor vehicle dealership
351     if the recreational vehicle franchisee is participating in a trade show where three or more
352     recreational vehicle dealers are participating.
353          Section 5. Section 13-14-302.5 is amended to read:
354          13-14-302.5. Application of new franchise process with respect to certain
355     terminated franchises.
356          (1) As used in this section:
357          (a) "Covered franchisee":
358          (i) means a person who was a franchisee under a pre-bankruptcy franchise; and
359          (ii) is a "covered dealership," as that term is defined in the federal franchise arbitration
360     law.
361          (b) "Covered franchisor":
362          (i) means a person who was a franchisor under a pre-bankruptcy franchise; and
363          (ii) is a "covered manufacturer," as that term is defined in the federal franchise
364     arbitration law.
365          (c) "Federal franchise arbitration law" means Section 747 of the Consolidated
366     Appropriations Act of 2010, Pub. L. No. 111-117.
367          (d) "New franchisor":
368          (i) means a person who is a franchisor of the same line-make as the franchisor under a
369     pre-bankruptcy franchise that has become a terminated franchise; and
370          (ii) is a "covered manufacturer," as that term is defined in the federal franchise
371     arbitration law.
372          (e) "Pre-bankruptcy franchise" means a franchise in effect as of October 3, 2008.
373          (f) "Reinstated franchise" means:
374          (i) a terminated franchise that a reinstatement order determines should be reinstated,
375     renewed, continued, assigned, or assumed; or
376          (ii) a franchise that a reinstatement order otherwise determines should be reestablished
377     in or added to the dealer network of a new franchisor in the geographic area where the covered
378     franchisee was located before October 3, 2008.
379          (g) "Reinstated franchisee" means a covered franchisee:
380          (i) whose franchise became a terminated franchise with less than 90 days' notice prior
381     to termination; and
382          (ii) that becomes entitled to a reinstated franchise under a reinstatement order.
383          (h) "Reinstatement order" means an arbitrator's written determination:
384          (i) in an arbitration proceeding held under the federal franchise arbitration law; and
385          (ii) (A) that a terminated franchise should be reinstated, renewed, continued, assigned,
386     or assumed; or
387          (B) that a covered franchisee should otherwise be reestablished as a franchisee in or
388     added to the dealer network of a new franchisor in the geographic area where the covered
389     franchisee was located before October 3, 2008.
390          (i) "Terminated franchise" means a covered franchisee's pre-bankruptcy franchise that
391     was terminated or not continued or renewed as a result of a bankruptcy proceeding involving a
392     covered franchisor as the bankruptcy debtor.
393          (2) The process under Sections 13-14-302, 13-14-304, and 13-14-306 for the issuance
394     of a franchise, including Subsections 13-14-302[(4)](5) and [(5)] (6) and Section 13-14-304
395     relating to a protest by another franchisee in the line-make in the relevant market area against
396     the establishment or relocation of a franchise, does not apply to a reinstated franchise or
397     reinstated franchisee.
398          Section 6. Section 13-14-304 is amended to read:
399          13-14-304. Hearing regarding termination, relocation, or establishment of
400     franchises.
401          (1) (a) Within 10 days [of receiving] after the day on which the advisory board receives
402     an application from a franchisee under Subsection 13-14-301(3) challenging [its] a franchisor's
403     right to terminate or not continue a franchise, or an application under Section 13-14-302
404     challenging the establishment or relocation of a franchise, the executive director shall:
405          (i) enter an order designating the time and place for the hearing; and
406          (ii) send a copy of the order by certified or registered mail, with return receipt
407     requested, or by any form of reliable delivery through which receipt is verifiable to:
408          (A) the applicant;
409          (B) the franchisor; and
410          (C) if the application involves the establishment of a new franchise or the relocation of
411     an existing dealership, [to all franchisees] each affected municipality and to each franchisee in
412     the relevant market area engaged in the business of offering to sell or lease the same line-make.
413          (b) A copy of an order mailed under Subsection (1)(a) shall be addressed to the
414     franchisee at the place where the franchisee's business is conducted.
415          (2) [Any] An affected municipality and any other person who can establish an interest
416     in the application may intervene as a party to the hearing, whether or not that person receives
417     notice.
418          (3) Any person, including an affected municipality, may appear and testify on the
419     question of the public interest in the termination or noncontinuation of a franchise or in the
420     establishment of an additional franchise.
421          (4) (a) (i) Any hearing ordered under Subsection (1) shall be conducted no later than
422     [120] 90 days after the day on which the application for hearing is filed.
423          (ii) A final decision on the challenge shall be made by the executive director no later
424     than [30] 20 days after the day on which the hearing ends.
425          (b) Failure to comply with the time requirements of Subsection (4)(a) is considered a
426     determination that the franchisor acted with good cause or, in the case of a protest of a
427     proposed establishment or relocation of a dealer, that good cause exists for permitting the
428     proposed additional or relocated new motor vehicle dealer, unless:
429          (i) the delay is caused by acts of the franchisor or the additional or relocating
430     franchisee; or
431          (ii) the delay is waived by the parties.
432          (5) The franchisor has the burden of proof to establish by a preponderance of the
433     evidence that under the provisions of this chapter it should be granted permission to:
434          (a) terminate or not continue the franchise;
435          (b) enter into a franchise agreement establishing an additional franchise; or
436          (c) relocate the dealership of an existing franchisee.
437          (6) Any party to the hearing may appeal the executive director's final decision in
438     accordance with Title 63G, Chapter 4, Administrative Procedures Act, including the franchisor,
439     an existing franchisee of the same line-make whose relevant market area includes the site of the
440     proposed dealership, or an affected municipality.
441          Section 7. Section 13-14-306 is amended to read:
442          13-14-306. Evidence to be considered in determining cause to relocate or
443     establish a new franchised dealership.
444          In determining whether a franchisor has established good cause for relocating an
445     existing franchisee or establishing a new franchised dealership for the same line-make in a
446     given relevant market area, the advisory board and the executive director shall consider:
447          (1) the amount of business transacted by other franchisees of the same line-make in
448     that relevant market area, as compared to business available to the franchisees;
449          (2) the investment necessarily made and obligations incurred by other franchisees of
450     the same line-make in that relevant market area in the performance of their part of their
451     franchisee agreements;
452          (3) the permanency of the existing and proposed investment;
453          (4) whether it is injurious or beneficial to the public welfare or public interest for an
454     additional franchise to be established[;], including:
455          (a) the impact on any affected municipality;
456          (b) population growth trends in any affected municipality;
457          (c) the number of dealerships in the primary market area of the new or relocated
458     dealership compared to the number of dealerships in each primary market area adjacent to the
459     new or relocated dealership's primary market area; and
460          (d) how the new or relocated dealership would impact the distance and time that an
461     individual in the new or relocated dealership's primary market area would have to travel to
462     access a dealership in the same line-make as the new or relocated dealership.
463          (5) whether the franchisees of the same line-make in that relevant market area are
464     providing adequate service to consumers for the motor vehicles of the line-make, which shall
465     include the adequacy of:
466          (a) the motor vehicle sale and service facilities;
467          (b) equipment;
468          (c) supply of vehicle parts; and
469          (d) qualified service personnel; and
470          (6) whether the relocation or establishment would cause any material negative
471     economic effect on a dealer of the same line-make in the relevant market area.
472          Section 8. Section 13-14-310 is enacted to read:
473          13-14-310. Reporting requirement.
474          By November 30 of each year, the advisory board shall submit an annual report to the
475     Business and Labor Interim Committee that, for the 12 months before the day on which the
476     report is submitted, describes:
477          (1) the number of applications for a new or relocated dealership that the advisory board
478     received; and
479          (2) for each application described in Subsection (1):
480          (a) the number of protests that the advisory board received;
481          (b) whether the advisory board conducted a hearing;
482          (c) if the advisory board conducted a hearing, the disposition of the hearing; and
483          (d) the basis for any disposition described in Subsection (2)(c).