BUSINESS AND PROFESSIONS CODE
SECTION 21150-21150.1
21150. For purposes of this chapter, the following terms shall have
the following meanings:
(a) "Franchise" means any contract between a refiner and a
distributor, between a refiner and a retailer, between a distributor
and another distributor, or between a distributor and a retailer,
under which a refiner or distributor authorizes or permits a retailer
or distributor to use, in connection with the sale, consignment, or
distribution of fuel, a trademark which is owned or controlled by
such refiner or by a refiner which supplies fuel to the distributor
which authorizes or permits such use. The term "franchise" includes
the following:
(1) Any contract under which a retailer or distributor is
authorized or permitted to occupy leased marketing premises, which
premises are to be employed in connection with the sale, consignment,
or distribution of fuel under a trademark which is owned or
controlled by such refiner or by a refiner which supplies fuel to the
distributor which authorizes or permits such occupancy.
(2) Any contract pertaining to the supply of fuel which is to be
sold, consigned, or distributed under a trademark owned or controlled
by a refiner, or under a contract which has existed continuously
since May 15, 1973, and pursuant to which, on May 15, 1973, fuel was
sold, consigned, or distributed under a trademark owned and
controlled on such date by a refiner.
(3) The unexpired portion of any franchise, as defined by the
preceding provisions of this paragraph, which is transferred or
assigned as authorized by the provisions of such franchise or by any
applicable provision of state law which permits such transfer or
assignment without regard to any provision of the franchise.
(b) "Franchisor" means a refiner or distributor who authorizes or
permits, under a franchise, a retailer or distributor to use a
trademark in connection with the sale, consignment, or distribution
of fuel.
(c) "Franchisee" means a retailer or distributor who is authorized
or permitted, under a franchise, to use a trademark in connection
with the sale, consignment, or distribution of fuel.
(d) "Refiner" means any person engaged in the refining of crude
oil to produce fuel, and includes any affiliate of such person.
(e) "Distributor" means any person, including any affiliate of
such person, who either purchases fuel for sale, consignment, or
distribution to another, or receives fuel on consignment for
consignment or distribution to his or her own fuel accounts or to
accounts of his or her supplier, but shall not include a person who
is an employee of, or merely serves as a common carrier providing
transportation service for, such supplier.
(f) "Retailer" means any person who purchases fuel for sale to the
general public for ultimate consumption.
(g) "Marketing premises" means, in the case of any franchise,
premises which, under such franchise, are to be employed by the
franchisee in connection with the sale, consignment, or distribution
of fuel.
(h) "Leased marketing premises" means marketing premises owned,
leased, or in any way controlled by a franchisor and which the
franchisee is authorized or permitted, under the franchise, to employ
in connection with the sale, consignment, or distribution of fuel.
(i) "Contract" means any oral or written agreement. For supply
purposes, delivery levels during the same month of the previous year
shall be prima facie evidence of an agreement to deliver such levels.
(j) "Trademark" means any trademark, trade name, service mark, or
other identifying symbol or name.
(k) "Fuel" means gasoline, diesel, gasohol, or aviation fuel.
(l) "Affiliate" means any person who, other than by means of a
franchise, controls, is controlled by, or is under common control
with, any other person.
21150.1. (a) In all future franchise agreements no retail gasoline
dealer who operates pursuant to a franchise shall be required by the
franchisor to operate the service station during hours that are not
profitable to the franchisee, provided that the hours of operation
that are maintained by the franchisee are for a continuing period of
time.
(b) In the event that the terms and conditions of the franchise
require the franchisee to maintain hours of operation that the
franchisee has determined in good faith to be unprofitable, the
franchisee shall notify the franchisor in writing of his or her
determination that a certain period or periods are not profitable and
provide the franchisor with any statements, studies, analyses,
summaries, business records, or other documents that the franchisee
prepared or reviewed to determine that operation of the service
station during the period or periods specified in the notice were
unprofitable.
(c) In the event that the franchisor in good faith is not
satisfied that the operation of the service station is not profitable
during the periods specified in the notice after the franchisor has
reviewed the statements, studies, analyses, summaries, business
records, or other documents submitted by the franchisee, the
franchisor may prepare its own statements, studies, analyses,
summaries, business records, or other documents regarding the
profitability of operation of the service station during the period
specified by the franchisee. The franchisee shall reimburse the
franchisor for the actual cost incurred by the franchisor in
preparing any statements, studies, analyses, summaries, business
records, or other documents to verify the franchisee's determination
that it is not profitable to operate during the period or periods
specified in the notice, not to exceed the sum of three hundred
dollars ($300).
(d) In the event that the franchisor and franchisee still do not
agree regarding the profitability of certain hours of operation, the
franchisor and franchisee shall conduct arbitration in accordance
with the rules of the American Arbitration Association. The decision
of the arbitrator shall be final.
(e) The franchisee may establish and maintain the hours of
operation of the service station without regard to the hours
specified in the franchise:
(1) If the franchisor fails to notify the franchisee of his or her
intent to prepare statements, studies, analyses, summaries, business
records, or other documents to verify the franchisee's determination
that it is not profitable to operate during the period or periods
specified in the notice within 15 days after receipt of the
franchisee's notice.
(2) If the franchisor fails to complete the preparation of the
statements, studies, analyses, summaries, business records, or other
documents within 30 days after the receipt of notice from the
franchisee.
(3) If it is established pursuant to subdivisions (b) to (d),
inclusive, that the operation of the service station is not
profitable during the period or periods specified by the franchisee.
(f) For the purposes of this section, the terms "unprofitable" and
"not profitable" shall mean that the amount of the gross revenues
generated by the sales of motor fuels and other petroleum products,
as well as related automotive accessories, is less than the amount of
the expenses incurred by the franchisee to operate during the period
or periods the franchisee specified in the written notice, including
the proportionate costs for rent, labor, or other fixed or variable
overhead costs that may be reasonably allocated to the operation of
the service station during the period or periods that the franchisee
specified in the written notice.
(g) This section shall not apply:
(1) Where specific hours of business or operation are required
under the franchisor's prime lease or license from any governmental
entity, airport, parking, marine or port authority, shopping center,
or any private investor not affiliated with or controlled by the
franchisor; or,
(2) Where the retail gasoline station subject to the franchise
agreement is located within one-half mile access of any highway which
is a part of the California freeway and expressway system, provided,
however, that if there is not commercial property developed as a
service station within one-half mile of an entry to or exit from any
such highway, the exception shall extend to the first such
development and extend one-quarter mile beyond in all directions.
This section is also not applicable to any business which is not
primarily a gasoline station, but which sells gasoline incidentally
to its business.
BUSINESS AND PROFESSIONS CODE
SECTION 21150-21150.1
21150. For purposes of this chapter, the following terms shall have
the following meanings:
(a) "Franchise" means any contract between a refiner and a
distributor, between a refiner and a retailer, between a distributor
and another distributor, or between a distributor and a retailer,
under which a refiner or distributor authorizes or permits a retailer
or distributor to use, in connection with the sale, consignment, or
distribution of fuel, a trademark which is owned or controlled by
such refiner or by a refiner which supplies fuel to the distributor
which authorizes or permits such use. The term "franchise" includes
the following:
(1) Any contract under which a retailer or distributor is
authorized or permitted to occupy leased marketing premises, which
premises are to be employed in connection with the sale, consignment,
or distribution of fuel under a trademark which is owned or
controlled by such refiner or by a refiner which supplies fuel to the
distributor which authorizes or permits such occupancy.
(2) Any contract pertaining to the supply of fuel which is to be
sold, consigned, or distributed under a trademark owned or controlled
by a refiner, or under a contract which has existed continuously
since May 15, 1973, and pursuant to which, on May 15, 1973, fuel was
sold, consigned, or distributed under a trademark owned and
controlled on such date by a refiner.
(3) The unexpired portion of any franchise, as defined by the
preceding provisions of this paragraph, which is transferred or
assigned as authorized by the provisions of such franchise or by any
applicable provision of state law which permits such transfer or
assignment without regard to any provision of the franchise.
(b) "Franchisor" means a refiner or distributor who authorizes or
permits, under a franchise, a retailer or distributor to use a
trademark in connection with the sale, consignment, or distribution
of fuel.
(c) "Franchisee" means a retailer or distributor who is authorized
or permitted, under a franchise, to use a trademark in connection
with the sale, consignment, or distribution of fuel.
(d) "Refiner" means any person engaged in the refining of crude
oil to produce fuel, and includes any affiliate of such person.
(e) "Distributor" means any person, including any affiliate of
such person, who either purchases fuel for sale, consignment, or
distribution to another, or receives fuel on consignment for
consignment or distribution to his or her own fuel accounts or to
accounts of his or her supplier, but shall not include a person who
is an employee of, or merely serves as a common carrier providing
transportation service for, such supplier.
(f) "Retailer" means any person who purchases fuel for sale to the
general public for ultimate consumption.
(g) "Marketing premises" means, in the case of any franchise,
premises which, under such franchise, are to be employed by the
franchisee in connection with the sale, consignment, or distribution
of fuel.
(h) "Leased marketing premises" means marketing premises owned,
leased, or in any way controlled by a franchisor and which the
franchisee is authorized or permitted, under the franchise, to employ
in connection with the sale, consignment, or distribution of fuel.
(i) "Contract" means any oral or written agreement. For supply
purposes, delivery levels during the same month of the previous year
shall be prima facie evidence of an agreement to deliver such levels.
(j) "Trademark" means any trademark, trade name, service mark, or
other identifying symbol or name.
(k) "Fuel" means gasoline, diesel, gasohol, or aviation fuel.
(l) "Affiliate" means any person who, other than by means of a
franchise, controls, is controlled by, or is under common control
with, any other person.
21150.1. (a) In all future franchise agreements no retail gasoline
dealer who operates pursuant to a franchise shall be required by the
franchisor to operate the service station during hours that are not
profitable to the franchisee, provided that the hours of operation
that are maintained by the franchisee are for a continuing period of
time.
(b) In the event that the terms and conditions of the franchise
require the franchisee to maintain hours of operation that the
franchisee has determined in good faith to be unprofitable, the
franchisee shall notify the franchisor in writing of his or her
determination that a certain period or periods are not profitable and
provide the franchisor with any statements, studies, analyses,
summaries, business records, or other documents that the franchisee
prepared or reviewed to determine that operation of the service
station during the period or periods specified in the notice were
unprofitable.
(c) In the event that the franchisor in good faith is not
satisfied that the operation of the service station is not profitable
during the periods specified in the notice after the franchisor has
reviewed the statements, studies, analyses, summaries, business
records, or other documents submitted by the franchisee, the
franchisor may prepare its own statements, studies, analyses,
summaries, business records, or other documents regarding the
profitability of operation of the service station during the period
specified by the franchisee. The franchisee shall reimburse the
franchisor for the actual cost incurred by the franchisor in
preparing any statements, studies, analyses, summaries, business
records, or other documents to verify the franchisee's determination
that it is not profitable to operate during the period or periods
specified in the notice, not to exceed the sum of three hundred
dollars ($300).
(d) In the event that the franchisor and franchisee still do not
agree regarding the profitability of certain hours of operation, the
franchisor and franchisee shall conduct arbitration in accordance
with the rules of the American Arbitration Association. The decision
of the arbitrator shall be final.
(e) The franchisee may establish and maintain the hours of
operation of the service station without regard to the hours
specified in the franchise:
(1) If the franchisor fails to notify the franchisee of his or her
intent to prepare statements, studies, analyses, summaries, business
records, or other documents to verify the franchisee's determination
that it is not profitable to operate during the period or periods
specified in the notice within 15 days after receipt of the
franchisee's notice.
(2) If the franchisor fails to complete the preparation of the
statements, studies, analyses, summaries, business records, or other
documents within 30 days after the receipt of notice from the
franchisee.
(3) If it is established pursuant to subdivisions (b) to (d),
inclusive, that the operation of the service station is not
profitable during the period or periods specified by the franchisee.
(f) For the purposes of this section, the terms "unprofitable" and
"not profitable" shall mean that the amount of the gross revenues
generated by the sales of motor fuels and other petroleum products,
as well as related automotive accessories, is less than the amount of
the expenses incurred by the franchisee to operate during the period
or periods the franchisee specified in the written notice, including
the proportionate costs for rent, labor, or other fixed or variable
overhead costs that may be reasonably allocated to the operation of
the service station during the period or periods that the franchisee
specified in the written notice.
(g) This section shall not apply:
(1) Where specific hours of business or operation are required
under the franchisor's prime lease or license from any governmental
entity, airport, parking, marine or port authority, shopping center,
or any private investor not affiliated with or controlled by the
franchisor; or,
(2) Where the retail gasoline station subject to the franchise
agreement is located within one-half mile access of any highway which
is a part of the California freeway and expressway system, provided,
however, that if there is not commercial property developed as a
service station within one-half mile of an entry to or exit from any
such highway, the exception shall extend to the first such
development and extend one-quarter mile beyond in all directions.
This section is also not applicable to any business which is not
primarily a gasoline station, but which sells gasoline incidentally
to its business.
BUSINESS AND PROFESSIONS CODE
SECTION 21150-21150.1
21150. For purposes of this chapter, the following terms shall have
the following meanings:
(a) "Franchise" means any contract between a refiner and a
distributor, between a refiner and a retailer, between a distributor
and another distributor, or between a distributor and a retailer,
under which a refiner or distributor authorizes or permits a retailer
or distributor to use, in connection with the sale, consignment, or
distribution of fuel, a trademark which is owned or controlled by
such refiner or by a refiner which supplies fuel to the distributor
which authorizes or permits such use. The term "franchise" includes
the following:
(1) Any contract under which a retailer or distributor is
authorized or permitted to occupy leased marketing premises, which
premises are to be employed in connection with the sale, consignment,
or distribution of fuel under a trademark which is owned or
controlled by such refiner or by a refiner which supplies fuel to the
distributor which authorizes or permits such occupancy.
(2) Any contract pertaining to the supply of fuel which is to be
sold, consigned, or distributed under a trademark owned or controlled
by a refiner, or under a contract which has existed continuously
since May 15, 1973, and pursuant to which, on May 15, 1973, fuel was
sold, consigned, or distributed under a trademark owned and
controlled on such date by a refiner.
(3) The unexpired portion of any franchise, as defined by the
preceding provisions of this paragraph, which is transferred or
assigned as authorized by the provisions of such franchise or by any
applicable provision of state law which permits such transfer or
assignment without regard to any provision of the franchise.
(b) "Franchisor" means a refiner or distributor who authorizes or
permits, under a franchise, a retailer or distributor to use a
trademark in connection with the sale, consignment, or distribution
of fuel.
(c) "Franchisee" means a retailer or distributor who is authorized
or permitted, under a franchise, to use a trademark in connection
with the sale, consignment, or distribution of fuel.
(d) "Refiner" means any person engaged in the refining of crude
oil to produce fuel, and includes any affiliate of such person.
(e) "Distributor" means any person, including any affiliate of
such person, who either purchases fuel for sale, consignment, or
distribution to another, or receives fuel on consignment for
consignment or distribution to his or her own fuel accounts or to
accounts of his or her supplier, but shall not include a person who
is an employee of, or merely serves as a common carrier providing
transportation service for, such supplier.
(f) "Retailer" means any person who purchases fuel for sale to the
general public for ultimate consumption.
(g) "Marketing premises" means, in the case of any franchise,
premises which, under such franchise, are to be employed by the
franchisee in connection with the sale, consignment, or distribution
of fuel.
(h) "Leased marketing premises" means marketing premises owned,
leased, or in any way controlled by a franchisor and which the
franchisee is authorized or permitted, under the franchise, to employ
in connection with the sale, consignment, or distribution of fuel.
(i) "Contract" means any oral or written agreement. For supply
purposes, delivery levels during the same month of the previous year
shall be prima facie evidence of an agreement to deliver such levels.
(j) "Trademark" means any trademark, trade name, service mark, or
other identifying symbol or name.
(k) "Fuel" means gasoline, diesel, gasohol, or aviation fuel.
(l) "Affiliate" means any person who, other than by means of a
franchise, controls, is controlled by, or is under common control
with, any other person.
21150.1. (a) In all future franchise agreements no retail gasoline
dealer who operates pursuant to a franchise shall be required by the
franchisor to operate the service station during hours that are not
profitable to the franchisee, provided that the hours of operation
that are maintained by the franchisee are for a continuing period of
time.
(b) In the event that the terms and conditions of the franchise
require the franchisee to maintain hours of operation that the
franchisee has determined in good faith to be unprofitable, the
franchisee shall notify the franchisor in writing of his or her
determination that a certain period or periods are not profitable and
provide the franchisor with any statements, studies, analyses,
summaries, business records, or other documents that the franchisee
prepared or reviewed to determine that operation of the service
station during the period or periods specified in the notice were
unprofitable.
(c) In the event that the franchisor in good faith is not
satisfied that the operation of the service station is not profitable
during the periods specified in the notice after the franchisor has
reviewed the statements, studies, analyses, summaries, business
records, or other documents submitted by the franchisee, the
franchisor may prepare its own statements, studies, analyses,
summaries, business records, or other documents regarding the
profitability of operation of the service station during the period
specified by the franchisee. The franchisee shall reimburse the
franchisor for the actual cost incurred by the franchisor in
preparing any statements, studies, analyses, summaries, business
records, or other documents to verify the franchisee's determination
that it is not profitable to operate during the period or periods
specified in the notice, not to exceed the sum of three hundred
dollars ($300).
(d) In the event that the franchisor and franchisee still do not
agree regarding the profitability of certain hours of operation, the
franchisor and franchisee shall conduct arbitration in accordance
with the rules of the American Arbitration Association. The decision
of the arbitrator shall be final.
(e) The franchisee may establish and maintain the hours of
operation of the service station without regard to the hours
specified in the franchise:
(1) If the franchisor fails to notify the franchisee of his or her
intent to prepare statements, studies, analyses, summaries, business
records, or other documents to verify the franchisee's determination
that it is not profitable to operate during the period or periods
specified in the notice within 15 days after receipt of the
franchisee's notice.
(2) If the franchisor fails to complete the preparation of the
statements, studies, analyses, summaries, business records, or other
documents within 30 days after the receipt of notice from the
franchisee.
(3) If it is established pursuant to subdivisions (b) to (d),
inclusive, that the operation of the service station is not
profitable during the period or periods specified by the franchisee.
(f) For the purposes of this section, the terms "unprofitable" and
"not profitable" shall mean that the amount of the gross revenues
generated by the sales of motor fuels and other petroleum products,
as well as related automotive accessories, is less than the amount of
the expenses incurred by the franchisee to operate during the period
or periods the franchisee specified in the written notice, including
the proportionate costs for rent, labor, or other fixed or variable
overhead costs that may be reasonably allocated to the operation of
the service station during the period or periods that the franchisee
specified in the written notice.
(g) This section shall not apply:
(1) Where specific hours of business or operation are required
under the franchisor's prime lease or license from any governmental
entity, airport, parking, marine or port authority, shopping center,
or any private investor not affiliated with or controlled by the
franchisor; or,
(2) Where the retail gasoline station subject to the franchise
agreement is located within one-half mile access of any highway which
is a part of the California freeway and expressway system, provided,
however, that if there is not commercial property developed as a
service station within one-half mile of an entry to or exit from any
such highway, the exception shall extend to the first such
development and extend one-quarter mile beyond in all directions.
This section is also not applicable to any business which is not
primarily a gasoline station, but which sells gasoline incidentally
to its business.
