§1270.1. Unauthorized acts; marine products

It shall be a violation of this Part:

(1) For a manufacturer, a distributor, a wholesaler, distributor branch, or factory branch of marine products or any officer, agent, or other representative thereof:

(a) To induce or coerce, or attempt to induce or coerce, any licensee:

(i) To order or accept delivery of any marine product, appliances, equipment, parts or accessories therefor, or any other commodity or commodities which shall not have been voluntarily ordered.

(ii) To order for any person any parts, accessories, equipment, machinery, tools, appliances, or any commodity whatsoever.

(iii) To assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from liability to be imposed by law, unless done in connection with a settlement agreement to resolve a matter pending a commission hearing or pending litigation involving a manufacturer, distributor, wholesaler, distributor branch or factory branch, or officer, agent, or other representative thereof.

(iv) To enter into a franchise with a licensee or during the franchise term, use any written instrument, agreement, release, assignment, novation, estoppel, or waiver, to attempt to nullify or modify any provision of this Chapter, or to require any controversy between a marine dealer and a manufacturer to be referred to any person or entity other than the commission, or duly constituted courts of this state or the United States, if such referral would be binding upon the dealer. Such instruments are null and void, unless done in connection with a settlement agreement to resolve a matter pending a commission hearing or pending litigation.

(v) To waive the right to a jury trial.

(vi) To participate in an advertising group or to participate monetarily in an advertising campaign or contest or to purchase any promotional materials, showroom, or other display decorations or materials at the expense of such marine dealer.

(vii) To adhere to performance standards that are not applied uniformly to other similarly situated marine dealers. Any such performance standards shall be fair, reasonable, equitable, and based on accurate information. If marine dealership performance standards are based on a survey, the manufacturer, distributor, wholesaler, distributor branch, or factory branch shall establish the objectivity of the survey process and provide this information to any marine dealer of the same-line make covered by the survey request. Each response to a survey used by a manufacturer in preparing an evaluation or performance-rating of a marine dealer shall be made available to that marine dealer, or it cannot be used by the manufacturer. However, if a customer requests that the manufacturer or distributor not disclose the consumer's identity to the dealer, the manufacturer may withhold the consumer's identity in providing the survey response to the dealer, and the manufacturer may use the response. Any survey used must have the following characteristics:

(aa) It was designed by experts.

(bb) The proper universe was examined.

(cc) A representative sample was chosen.

(dd) The data was accurately reported.

(viii) To release, convey, or otherwise provide customer information, if to do so is unlawful or if the customer objects in writing. This does not include information that is necessary for the manufacturer to meet its obligations to the marine dealer or consumers in regard to contractual responsibilities, marine product recalls, or other requirements imposed by state or federal law. The manufacturer is further prohibited from providing any consumer information received from the marine dealer to any unaffiliated third party.

(ix) To pay the attorney fees of the manufacturer or distributor related to hearings and appeals brought under this Chapter.

(x) To order or accept delivery of any vehicle with special features, appliances, accessories, or equipment not included in the list price of the vehicle as publicly advertised.

(b) To refuse to deliver to any licensee having a franchise or contractual arrangement for the retail sale of marine products sold or distributed by such manufacturer, distributor, wholesaler, distributor branch or factory branch, any marine product, publicly advertised for immediate delivery, within sixty days after such marine dealer's order shall have been received.

(c) To threaten to cancel any franchise existing between such manufacturer, distributor, wholesaler, distributor branch or factory branch and the marine dealer for any reason.

(d) To unfairly, without just cause and due regard to the equities of the marine dealer, cancel the franchise of the licensee. The nonrenewal of a franchise with a marine dealer or his successor without just provocation or cause, or the refusal to approve a qualified transferee or qualified successor to the dealer-operator as provided for in the selling agreement, shall be deemed a violation of this Subparagraph and shall constitute an unfair cancellation, regardless of the terms or provisions of such franchise. However, at least ninety days notice shall be given to the dealer of a cancellation or nonrenewal of a franchise except for a cancellation arising out of fraudulent activity of the dealer principal which results in the conviction of a crime punishable by imprisonment.

(e) To refuse to extend to a licensee the privilege of determining the mode or manner of available transportation facility that such marine dealer desires to be used or employed in making deliveries of marine products to him or it.

(f) To ship or sell marine products to a licensee prior to the licensee having been granted a license by the commission to sell such products.

(g) To unreasonably withhold consent to the sale, transfer, or exchange of the dealership to a qualified transferee capable of being licensed as a marine dealer in this state, provided the transferee meets the criteria generally applied by the manufacturer in approving new marine dealers and agrees to be bound by all the terms and conditions of the standard franchises.

(h) To fail to respond in writing to a written request for consent as specified in Subparagraph (g) of this Paragraph within sixty days of receipt of a written request on the forms, if any, generally utilized by the manufacturer or distributor for such purposes and containing the information required therein. Failure to respond shall be deemed to be consent to the request.

(i) To sell or offer to sell a new or unused marine product directly to a consumer except as provided in this Chapter.

(j) Repealed by Acts 2014, No. 770, §2.

(k) To fail to designate and provide to the commission in writing the community or territory assigned to a licensee. The provisions of this Subparagraph shall not apply when the marine products consist of a trolling motor, boat trailer, or watercraft trailer.

(l) To unreasonably discriminate among competing, similarly situated, same-line make dealers in the sales of the marine products, in the availability of such marine products, in the terms of incentive programs or sales promotion plans, or in other similar programs.

(m) To use any subsidiary, affiliate, or any other controlled person or entity, or to employ the services of a third party, to accomplish what would otherwise be illegal conduct under this Chapter on the part of the manufacturer or distributor.

(n) To make a change in the area of responsibility described in the franchise or sales and service agreement of a dealer, without the manufacturer or distributor giving the marine dealer and the commission no less than sixty days prior written notice by certified or registered mail.

(2) For a marine dealer, used marine product dealer, marine product salesman:

(a) To require a purchaser of a marine product, as a condition of sale and delivery thereof, to also purchase special features, appliances, accessories, or equipment not desired or requested by the purchaser; however, this prohibition shall not apply as to special features, appliances, accessories, or equipment which are permanently affixed to the marine product.

(b) To represent and sell as a new marine product any marine product, the legal title of which has been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser.

(c) To use any false or misleading advertisement in connection with his business as such marine dealer or marine product salesman.

(d) To sell or offer to sell makes, models, or classifications of new marine products for which no franchise and license to sell is held.

(e) Except as otherwise approved by the commission, to sell or offer to sell a marine product from an unlicensed location.

(f) To deliver to a prospective purchaser a new or a used marine product on a sale conditioned on financing, i.e., a spot delivery, except on the following terms and conditions which shall be in writing and shall be a part of the conditional sales contract or other written notification signed by the purchaser:

(i) That if the sale is not concluded by the financing of the sale to the purchaser within twenty-five days of the delivery, the sale contract shall be null and void.

(ii) That the marine product being offered for trade-in by the purchaser shall not be sold by the marine dealer until the conditional sale is complete.

(iii) That there shall be no charge to the purchaser should the conditional sale not be completed, including but not limited to mileage charges or charges to refurbish the marine product offered for trade-in. However, the purchaser shall be responsible for any and all damages to the marine product or other marine products damaged by the fault of the purchaser and any and all liability incurred by the purchaser during the purchaser's custody of the marine product to the extent provided for in R.S. 22:1296.

(iv) That if the conditional sale is not completed, the marine dealer shall immediately refund to the purchaser upon return of the marine product all sums placed with the dealership as a deposit or any other purpose associated with the attempted sale of the marine product.

(v) That the prospective purchaser shall return the marine product to the dealership within forty-eight hours of notification by the marine dealer that the conditional sale will not be completed. If the prospective purchaser does not return the marine product to the dealership within forty-eight hours of notification by the marine dealer, an authorized agent of the marine dealer shall have the right to recover the marine product without the necessity of judicial process, provided that such recovery can be accomplished without unauthorized entry into a closed dwelling, whether locked or unlocked and without a breach of peace.

(g) To pay a fee to any person in return for the solicitation, procurement, or production by that person of prospective purchasers for new and used marine products, except to a salesman licensed under the provisions of this Chapter.

(h) To fail to fully and completely explain each charge listed on a retail buyer's order or marine product invoice prior to the purchase of a marine product.

(i) When selling a marine product to a consumer, to assess any consumer services fees, which shall include fees for treating the interior upholstery of the marine product, oil changes, roadside assistance, dealer inspections, or any other service offered by the dealer, without allowing the buyer to refuse such services and be exempt from payment for such services. The provisions of this Subparagraph shall not apply to dealer-added options or accessories which are permanently affixed to the marine product.

(3)(a) For any person or other licensee to modify a franchise during the term of the agreement or upon its renewal if the modification substantially and adversely affects the dealer's rights, obligations, investment, or return on investment without giving a sixty-day written notice of the proposed modification to the licensee and the commission unless the modifications are required by law, court order, or the commission. Within the sixty-day notice period, the licensee may file with the commission a complaint for a determination whether there is good cause for permitting the proposed modification. The party seeking to modify or replace an agreement shall demonstrate by a preponderance of the evidence that there is good cause for the modification or replacement. The commission shall schedule a hearing within sixty days to decide the matter. Multiple complaints pertaining to the same proposed modifications shall be consolidated for hearing. The proposed modification may not take effect pending the determination of the matter.

(b) In making a determination of whether there is good cause for permitting a proposed modification, the commission may consider any relevant factor including:

(i) The reasons for the proposed modification.

(ii) Whether the proposed modification is applied to or affects all licensees in a nondiscriminating manner.

(iii) The degree to which the proposed modification will have a substantial and adverse effect upon the licensee's investment or return on investment.

(iv) Whether the proposed modification is in the public interest.

(v) The degree to which the proposed modification is necessary to the orderly and profitable distribution of marine products and other services by the licensee.

(vi) Whether the proposed modification is offset by other modifications beneficial to the licensee.

(c) The decision of the commission shall be in writing and shall contain findings of fact and a determination of whether there is good cause for permitting the proposed modification. The commission shall deliver copies of the decision to the parties personally or by registered mail.

(4) For any employee of a licensee while acting in the scope of his employment, to accept any payment, commission, fee, or compensation of any kind from any person other than the employing licensee, unless such payment is fully disclosed to and approved by the employing licensee.

Acts 2012, No. 326, §1; Acts 2014, No. 111, §1; Acts 2014, No. 770, §2; Acts 2016, No. 530, §1.