§ 46.2-1992.69. Other coercion of dealers; transfer, grant, succession to andcancellation of dealer franchises; delivery of trailers, parts, andaccessories.
It shall be unlawful for any manufacturer, factory branch, distributor, ordistributor branch, or any field representative, officer, agent, or theirrepresentatives:
1. To coerce or attempt to coerce any dealer to accept delivery of anytrailer or trailers, parts or accessories therefor, or any other commodities,which have not been ordered by the dealer.
2. To coerce or attempt to coerce any dealer to enter into an agreement withthe manufacturer, factory branch, distributor, or distributor branch, orrepresentative thereof, or do any other act unfair to the dealer, bythreatening to cancel any franchise existing between the manufacturer,factory branch, distributor, distributor branch, or representative thereofand the dealer.
3. To coerce or attempt to coerce any dealer to join, contribute to, oraffiliate with any advertising association.
4. To prevent or refuse to approve the sale or transfer of the ownership of adealership by the sale of the business, stock transfer, or otherwise, or thetransfer, sale, or assignment of a dealer franchise, or a change in theexecutive management or principal operator of the dealership, unless thefranchisor provides written notice to the dealer of its objection and thereasons therefor at least thirty days prior to the proposed effective date ofthe transfer, sale, assignment, or change. No such objection shall beeffective to prevent the sale, transfer, assignment, or change if theCommissioner has determined, if requested in writing by the dealer withinthirty days after receipt of an objection to the proposed sale, transfer, orchange, and after a hearing on the matter, that the failure to permit orhonor the sale, transfer, assignment, or change is unreasonable under thecircumstances. No franchise may be sold, assigned, or transferred unless (i)the franchisor has been given at least ninety days' prior written notice bythe dealer as to the identity, financial ability, and qualifications of theproposed transferee, and (ii) the sale or transfer of the franchise andbusiness will not involve, without the franchisor's consent, a relocation ofthe business.
5. To grant an additional franchise for a particular line-make of trailer ina relevant market area in which a dealer or dealers in that line-make arealready located unless the franchisor has first advised in writing all otherdealers in the line-make in the relevant market area. No such additionalfranchise may be established at the proposed site unless the Commissioner hasdetermined, if requested by a dealer of the same line-make in the relevantmarket area within thirty days after receipt of the franchisor's notice ofintention to establish the additional franchise, and after a hearing on thematter, that there is reasonable evidence that after the grant of the newfranchise, the market will support all of the dealers in that line-make inthe relevant market area. Establishing a franchised dealer in a relevantmarket area to replace a franchised dealer that has not been in operation formore than two years shall constitute the establishment of a new franchisesubject to the terms of this subdivision. The two-year period for replacing afranchised dealer shall begin on the day the franchise was terminated, or, ifa termination hearing was held, on the day the franchisor was legallypermitted finally to terminate the franchise. This subdivision shall notapply to (i) the relocation of an existing dealer within that dealer'srelevant market area if the relocation site is to be more than ten milesdistant from any other dealer for the same line-make; (ii) the relocation ofan existing dealer within that dealer's relevant market area if therelocation site is to be more distant than the existing site from all otherdealers of the same line-make in that relevant market area; or (iii) therelocation of an existing new trailer dealer within two miles of the existingsite of the relocating dealer.
6. Except as otherwise provided in this subdivision and notwithstanding theterms of any franchise, to terminate, cancel, or refuse to renew thefranchise of any dealer without good cause and unless (i) the dealer and theCommissioner have received written notice of the franchisor's intentions atleast sixty days prior to the effective date of such termination,cancellation, or the expiration date of the franchise, setting forth thespecific grounds for the action, and (ii) the Commissioner has determined, ifrequested in writing by the dealer within the sixty-day period, and after ahearing on the matter, that there is good cause for the termination,cancellation, or nonrenewal of the franchise. In any case where a petition ismade to the Commissioner for a determination as to good cause for thetermination, cancellation, or nonrenewal of a franchise, the franchise inquestion shall continue in effect pending the Commissioner's decision or, ifthat decision is appealed to the circuit court, pending the decision of thecircuit court. In any case in which a franchisor neither advises a dealerthat it does not intend to renew a franchise nor takes any action to renew afranchise beyond its expiration date, the franchise in question shallcontinue in effect on the terms last agreed to by the parties.Notwithstanding the other provisions of this subdivision, notice oftermination, cancellation, or nonrenewal may be provided to a dealer by afranchisor not less than fifteen days prior to the effective date of suchtermination, cancellation, or nonrenewal when the grounds for such action areany of the following:
a. Insolvency of the franchised trailer dealer or filing of any petition byor against the franchised trailer dealer, under any bankruptcy orreceivership law, leading to liquidation or which is intended to lead toliquidation of the franchisee's business;
b. Failure of the franchised trailer dealer to conduct its customary salesand service operations during its posted business hours for seven consecutivebusiness days, except where the failure results from acts of God orcircumstances beyond the direct control of the franchised trailer dealer;
c. Revocation of any license which the franchised trailer dealer is requiredto have to operate a dealership; or
d. Conviction of the dealer or any principal of the dealer of a felony.
The change or discontinuance of a marketing or distribution system of aparticular line-make product by a manufacturer or distributor, while the nameidentification of the product is continued in substantial form by the same ordifferent manufacturer or distributor, may be considered to be a franchisetermination, cancellation, or nonrenewal. The provisions of this paragraphshall apply to changes and discontinuances made after January 1, 1989, butthey shall not be considered by any court in any case in which such a changeor discontinuance occurring prior to that date has been challenged asconstituting a termination, cancellation or nonrenewal.
7. To fail to provide continued parts and service support to a dealer whichholds a franchise in a discontinued line-make for at least five years fromthe date of such discontinuance. This requirement shall not apply to aline-make which was discontinued prior to January 1, 1989.
8. To fail to allow a dealer the right at any time to designate a member ofhis family as a successor to the dealership in the event of the death orincapacity of the dealer. It shall be unlawful to prevent or refuse to honorthe succession to a dealership by a member of the family of a deceased orincapacitated dealer if the franchisor has not provided to the member of thefamily previously designated by the dealer as his successor written notice ofits objections to the succession and of such person's right to seek a hearingon the matter before the Commissioner pursuant to this article, and theCommissioner determines, if requested in writing by such member of the familywithin thirty days of receipt of such notice from the franchisor, and after ahearing on the matter before the Commissioner pursuant to this article, thatthe failure to permit or honor the succession is unreasonable under thecircumstances. No member of the family may succeed to a franchise unless (i)the franchisor has been given written notice as to the identity, financialability, and qualifications of the member of the family in question and (ii)the succession to the franchise will not involve, without the franchisor'sconsent, a relocation of the business.
9. To fail to ship monthly to any dealer, if ordered by the dealer, thenumber of new trailers of each make, series, and model needed by the dealerto receive a percentage of total new trailer sales of each make, series, andmodel equitably related to the total new trailer production or importationcurrently being achieved nationally by each make, series, and model coveredunder the franchise. Upon the written request of any dealer holding its salesor sales and service franchise, the manufacturer or distributor shalldisclose to the dealer in writing the basis upon which new trailers areallocated, scheduled, and delivered to the dealers of the same line-make. Ifallocation is at issue in a request for a hearing, the dealer may demand theCommissioner to direct that the manufacturer or distributor provide to thedealer, within thirty days of such demand, all records of sales and allrecords of distribution of all trailers to the same line-make dealers whocompete with the dealer requesting the hearing.
10. To require or otherwise coerce a dealer to underutilize the dealer'sfacilities.
11. To include in any franchise with a trailer dealer terms that are contraryto, prohibited by, or otherwise inconsistent with the requirements of thischapter.
12. For any franchise agreement to require a trailer dealer to pay theattorney's fees of the manufacturer or distributor related to hearings andappeals brought under this article.
13. To fail to include in any franchise with a trailer dealer the followinglanguage: "If any provision herein contravenes the laws or regulations ofany state or other jurisdiction wherein this agreement is to be performed, ordenies access to the procedures, forums, or remedies provided for by suchlaws or regulations, such provision shall be deemed to be modified to conformto such laws or regulations, and all other terms and provisions shall remainin full force," or words to that effect.
§ 46.2-1992.69. Other coercion of dealers; transfer, grant, succession to andcancellation of dealer franchises; delivery of trailers, parts, andaccessories.
It shall be unlawful for any manufacturer, factory branch, distributor, ordistributor branch, or any field representative, officer, agent, or theirrepresentatives:
1. To coerce or attempt to coerce any dealer to accept delivery of anytrailer or trailers, parts or accessories therefor, or any other commodities,which have not been ordered by the dealer.
2. To coerce or attempt to coerce any dealer to enter into an agreement withthe manufacturer, factory branch, distributor, or distributor branch, orrepresentative thereof, or do any other act unfair to the dealer, bythreatening to cancel any franchise existing between the manufacturer,factory branch, distributor, distributor branch, or representative thereofand the dealer.
3. To coerce or attempt to coerce any dealer to join, contribute to, oraffiliate with any advertising association.
4. To prevent or refuse to approve the sale or transfer of the ownership of adealership by the sale of the business, stock transfer, or otherwise, or thetransfer, sale, or assignment of a dealer franchise, or a change in theexecutive management or principal operator of the dealership, unless thefranchisor provides written notice to the dealer of its objection and thereasons therefor at least thirty days prior to the proposed effective date ofthe transfer, sale, assignment, or change. No such objection shall beeffective to prevent the sale, transfer, assignment, or change if theCommissioner has determined, if requested in writing by the dealer withinthirty days after receipt of an objection to the proposed sale, transfer, orchange, and after a hearing on the matter, that the failure to permit orhonor the sale, transfer, assignment, or change is unreasonable under thecircumstances. No franchise may be sold, assigned, or transferred unless (i)the franchisor has been given at least ninety days' prior written notice bythe dealer as to the identity, financial ability, and qualifications of theproposed transferee, and (ii) the sale or transfer of the franchise andbusiness will not involve, without the franchisor's consent, a relocation ofthe business.
5. To grant an additional franchise for a particular line-make of trailer ina relevant market area in which a dealer or dealers in that line-make arealready located unless the franchisor has first advised in writing all otherdealers in the line-make in the relevant market area. No such additionalfranchise may be established at the proposed site unless the Commissioner hasdetermined, if requested by a dealer of the same line-make in the relevantmarket area within thirty days after receipt of the franchisor's notice ofintention to establish the additional franchise, and after a hearing on thematter, that there is reasonable evidence that after the grant of the newfranchise, the market will support all of the dealers in that line-make inthe relevant market area. Establishing a franchised dealer in a relevantmarket area to replace a franchised dealer that has not been in operation formore than two years shall constitute the establishment of a new franchisesubject to the terms of this subdivision. The two-year period for replacing afranchised dealer shall begin on the day the franchise was terminated, or, ifa termination hearing was held, on the day the franchisor was legallypermitted finally to terminate the franchise. This subdivision shall notapply to (i) the relocation of an existing dealer within that dealer'srelevant market area if the relocation site is to be more than ten milesdistant from any other dealer for the same line-make; (ii) the relocation ofan existing dealer within that dealer's relevant market area if therelocation site is to be more distant than the existing site from all otherdealers of the same line-make in that relevant market area; or (iii) therelocation of an existing new trailer dealer within two miles of the existingsite of the relocating dealer.
6. Except as otherwise provided in this subdivision and notwithstanding theterms of any franchise, to terminate, cancel, or refuse to renew thefranchise of any dealer without good cause and unless (i) the dealer and theCommissioner have received written notice of the franchisor's intentions atleast sixty days prior to the effective date of such termination,cancellation, or the expiration date of the franchise, setting forth thespecific grounds for the action, and (ii) the Commissioner has determined, ifrequested in writing by the dealer within the sixty-day period, and after ahearing on the matter, that there is good cause for the termination,cancellation, or nonrenewal of the franchise. In any case where a petition ismade to the Commissioner for a determination as to good cause for thetermination, cancellation, or nonrenewal of a franchise, the franchise inquestion shall continue in effect pending the Commissioner's decision or, ifthat decision is appealed to the circuit court, pending the decision of thecircuit court. In any case in which a franchisor neither advises a dealerthat it does not intend to renew a franchise nor takes any action to renew afranchise beyond its expiration date, the franchise in question shallcontinue in effect on the terms last agreed to by the parties.Notwithstanding the other provisions of this subdivision, notice oftermination, cancellation, or nonrenewal may be provided to a dealer by afranchisor not less than fifteen days prior to the effective date of suchtermination, cancellation, or nonrenewal when the grounds for such action areany of the following:
a. Insolvency of the franchised trailer dealer or filing of any petition byor against the franchised trailer dealer, under any bankruptcy orreceivership law, leading to liquidation or which is intended to lead toliquidation of the franchisee's business;
b. Failure of the franchised trailer dealer to conduct its customary salesand service operations during its posted business hours for seven consecutivebusiness days, except where the failure results from acts of God orcircumstances beyond the direct control of the franchised trailer dealer;
c. Revocation of any license which the franchised trailer dealer is requiredto have to operate a dealership; or
d. Conviction of the dealer or any principal of the dealer of a felony.
The change or discontinuance of a marketing or distribution system of aparticular line-make product by a manufacturer or distributor, while the nameidentification of the product is continued in substantial form by the same ordifferent manufacturer or distributor, may be considered to be a franchisetermination, cancellation, or nonrenewal. The provisions of this paragraphshall apply to changes and discontinuances made after January 1, 1989, butthey shall not be considered by any court in any case in which such a changeor discontinuance occurring prior to that date has been challenged asconstituting a termination, cancellation or nonrenewal.
7. To fail to provide continued parts and service support to a dealer whichholds a franchise in a discontinued line-make for at least five years fromthe date of such discontinuance. This requirement shall not apply to aline-make which was discontinued prior to January 1, 1989.
8. To fail to allow a dealer the right at any time to designate a member ofhis family as a successor to the dealership in the event of the death orincapacity of the dealer. It shall be unlawful to prevent or refuse to honorthe succession to a dealership by a member of the family of a deceased orincapacitated dealer if the franchisor has not provided to the member of thefamily previously designated by the dealer as his successor written notice ofits objections to the succession and of such person's right to seek a hearingon the matter before the Commissioner pursuant to this article, and theCommissioner determines, if requested in writing by such member of the familywithin thirty days of receipt of such notice from the franchisor, and after ahearing on the matter before the Commissioner pursuant to this article, thatthe failure to permit or honor the succession is unreasonable under thecircumstances. No member of the family may succeed to a franchise unless (i)the franchisor has been given written notice as to the identity, financialability, and qualifications of the member of the family in question and (ii)the succession to the franchise will not involve, without the franchisor'sconsent, a relocation of the business.
9. To fail to ship monthly to any dealer, if ordered by the dealer, thenumber of new trailers of each make, series, and model needed by the dealerto receive a percentage of total new trailer sales of each make, series, andmodel equitably related to the total new trailer production or importationcurrently being achieved nationally by each make, series, and model coveredunder the franchise. Upon the written request of any dealer holding its salesor sales and service franchise, the manufacturer or distributor shalldisclose to the dealer in writing the basis upon which new trailers areallocated, scheduled, and delivered to the dealers of the same line-make. Ifallocation is at issue in a request for a hearing, the dealer may demand theCommissioner to direct that the manufacturer or distributor provide to thedealer, within thirty days of such demand, all records of sales and allrecords of distribution of all trailers to the same line-make dealers whocompete with the dealer requesting the hearing.
10. To require or otherwise coerce a dealer to underutilize the dealer'sfacilities.
11. To include in any franchise with a trailer dealer terms that are contraryto, prohibited by, or otherwise inconsistent with the requirements of thischapter.
12. For any franchise agreement to require a trailer dealer to pay theattorney's fees of the manufacturer or distributor related to hearings andappeals brought under this article.
13. To fail to include in any franchise with a trailer dealer the followinglanguage: "If any provision herein contravenes the laws or regulations ofany state or other jurisdiction wherein this agreement is to be performed, ordenies access to the procedures, forums, or remedies provided for by suchlaws or regulations, such provision shall be deemed to be modified to conformto such laws or regulations, and all other terms and provisions shall remainin full force," or words to that effect.
§ 46.2-1992.69. Other coercion of dealers; transfer, grant, succession to andcancellation of dealer franchises; delivery of trailers, parts, andaccessories.
It shall be unlawful for any manufacturer, factory branch, distributor, ordistributor branch, or any field representative, officer, agent, or theirrepresentatives:
1. To coerce or attempt to coerce any dealer to accept delivery of anytrailer or trailers, parts or accessories therefor, or any other commodities,which have not been ordered by the dealer.
2. To coerce or attempt to coerce any dealer to enter into an agreement withthe manufacturer, factory branch, distributor, or distributor branch, orrepresentative thereof, or do any other act unfair to the dealer, bythreatening to cancel any franchise existing between the manufacturer,factory branch, distributor, distributor branch, or representative thereofand the dealer.
3. To coerce or attempt to coerce any dealer to join, contribute to, oraffiliate with any advertising association.
4. To prevent or refuse to approve the sale or transfer of the ownership of adealership by the sale of the business, stock transfer, or otherwise, or thetransfer, sale, or assignment of a dealer franchise, or a change in theexecutive management or principal operator of the dealership, unless thefranchisor provides written notice to the dealer of its objection and thereasons therefor at least thirty days prior to the proposed effective date ofthe transfer, sale, assignment, or change. No such objection shall beeffective to prevent the sale, transfer, assignment, or change if theCommissioner has determined, if requested in writing by the dealer withinthirty days after receipt of an objection to the proposed sale, transfer, orchange, and after a hearing on the matter, that the failure to permit orhonor the sale, transfer, assignment, or change is unreasonable under thecircumstances. No franchise may be sold, assigned, or transferred unless (i)the franchisor has been given at least ninety days' prior written notice bythe dealer as to the identity, financial ability, and qualifications of theproposed transferee, and (ii) the sale or transfer of the franchise andbusiness will not involve, without the franchisor's consent, a relocation ofthe business.
5. To grant an additional franchise for a particular line-make of trailer ina relevant market area in which a dealer or dealers in that line-make arealready located unless the franchisor has first advised in writing all otherdealers in the line-make in the relevant market area. No such additionalfranchise may be established at the proposed site unless the Commissioner hasdetermined, if requested by a dealer of the same line-make in the relevantmarket area within thirty days after receipt of the franchisor's notice ofintention to establish the additional franchise, and after a hearing on thematter, that there is reasonable evidence that after the grant of the newfranchise, the market will support all of the dealers in that line-make inthe relevant market area. Establishing a franchised dealer in a relevantmarket area to replace a franchised dealer that has not been in operation formore than two years shall constitute the establishment of a new franchisesubject to the terms of this subdivision. The two-year period for replacing afranchised dealer shall begin on the day the franchise was terminated, or, ifa termination hearing was held, on the day the franchisor was legallypermitted finally to terminate the franchise. This subdivision shall notapply to (i) the relocation of an existing dealer within that dealer'srelevant market area if the relocation site is to be more than ten milesdistant from any other dealer for the same line-make; (ii) the relocation ofan existing dealer within that dealer's relevant market area if therelocation site is to be more distant than the existing site from all otherdealers of the same line-make in that relevant market area; or (iii) therelocation of an existing new trailer dealer within two miles of the existingsite of the relocating dealer.
6. Except as otherwise provided in this subdivision and notwithstanding theterms of any franchise, to terminate, cancel, or refuse to renew thefranchise of any dealer without good cause and unless (i) the dealer and theCommissioner have received written notice of the franchisor's intentions atleast sixty days prior to the effective date of such termination,cancellation, or the expiration date of the franchise, setting forth thespecific grounds for the action, and (ii) the Commissioner has determined, ifrequested in writing by the dealer within the sixty-day period, and after ahearing on the matter, that there is good cause for the termination,cancellation, or nonrenewal of the franchise. In any case where a petition ismade to the Commissioner for a determination as to good cause for thetermination, cancellation, or nonrenewal of a franchise, the franchise inquestion shall continue in effect pending the Commissioner's decision or, ifthat decision is appealed to the circuit court, pending the decision of thecircuit court. In any case in which a franchisor neither advises a dealerthat it does not intend to renew a franchise nor takes any action to renew afranchise beyond its expiration date, the franchise in question shallcontinue in effect on the terms last agreed to by the parties.Notwithstanding the other provisions of this subdivision, notice oftermination, cancellation, or nonrenewal may be provided to a dealer by afranchisor not less than fifteen days prior to the effective date of suchtermination, cancellation, or nonrenewal when the grounds for such action areany of the following:
a. Insolvency of the franchised trailer dealer or filing of any petition byor against the franchised trailer dealer, under any bankruptcy orreceivership law, leading to liquidation or which is intended to lead toliquidation of the franchisee's business;
b. Failure of the franchised trailer dealer to conduct its customary salesand service operations during its posted business hours for seven consecutivebusiness days, except where the failure results from acts of God orcircumstances beyond the direct control of the franchised trailer dealer;
c. Revocation of any license which the franchised trailer dealer is requiredto have to operate a dealership; or
d. Conviction of the dealer or any principal of the dealer of a felony.
The change or discontinuance of a marketing or distribution system of aparticular line-make product by a manufacturer or distributor, while the nameidentification of the product is continued in substantial form by the same ordifferent manufacturer or distributor, may be considered to be a franchisetermination, cancellation, or nonrenewal. The provisions of this paragraphshall apply to changes and discontinuances made after January 1, 1989, butthey shall not be considered by any court in any case in which such a changeor discontinuance occurring prior to that date has been challenged asconstituting a termination, cancellation or nonrenewal.
7. To fail to provide continued parts and service support to a dealer whichholds a franchise in a discontinued line-make for at least five years fromthe date of such discontinuance. This requirement shall not apply to aline-make which was discontinued prior to January 1, 1989.
8. To fail to allow a dealer the right at any time to designate a member ofhis family as a successor to the dealership in the event of the death orincapacity of the dealer. It shall be unlawful to prevent or refuse to honorthe succession to a dealership by a member of the family of a deceased orincapacitated dealer if the franchisor has not provided to the member of thefamily previously designated by the dealer as his successor written notice ofits objections to the succession and of such person's right to seek a hearingon the matter before the Commissioner pursuant to this article, and theCommissioner determines, if requested in writing by such member of the familywithin thirty days of receipt of such notice from the franchisor, and after ahearing on the matter before the Commissioner pursuant to this article, thatthe failure to permit or honor the succession is unreasonable under thecircumstances. No member of the family may succeed to a franchise unless (i)the franchisor has been given written notice as to the identity, financialability, and qualifications of the member of the family in question and (ii)the succession to the franchise will not involve, without the franchisor'sconsent, a relocation of the business.
9. To fail to ship monthly to any dealer, if ordered by the dealer, thenumber of new trailers of each make, series, and model needed by the dealerto receive a percentage of total new trailer sales of each make, series, andmodel equitably related to the total new trailer production or importationcurrently being achieved nationally by each make, series, and model coveredunder the franchise. Upon the written request of any dealer holding its salesor sales and service franchise, the manufacturer or distributor shalldisclose to the dealer in writing the basis upon which new trailers areallocated, scheduled, and delivered to the dealers of the same line-make. Ifallocation is at issue in a request for a hearing, the dealer may demand theCommissioner to direct that the manufacturer or distributor provide to thedealer, within thirty days of such demand, all records of sales and allrecords of distribution of all trailers to the same line-make dealers whocompete with the dealer requesting the hearing.
10. To require or otherwise coerce a dealer to underutilize the dealer'sfacilities.
11. To include in any franchise with a trailer dealer terms that are contraryto, prohibited by, or otherwise inconsistent with the requirements of thischapter.
12. For any franchise agreement to require a trailer dealer to pay theattorney's fees of the manufacturer or distributor related to hearings andappeals brought under this article.
13. To fail to include in any franchise with a trailer dealer the followinglanguage: "If any provision herein contravenes the laws or regulations ofany state or other jurisdiction wherein this agreement is to be performed, ordenies access to the procedures, forums, or remedies provided for by suchlaws or regulations, such provision shall be deemed to be modified to conformto such laws or regulations, and all other terms and provisions shall remainin full force," or words to that effect.
