(1) It is a violation of paragraph (a) of Section 56-16-90 for any manufacturer, factory branch, factory representative, distributor, or wholesaler, distributor branch, distributor representative, or motorcycle dealer to engage in any action which is arbitrary, in bad faith, or unconscionable and which causes damage to any of the parties or to the public.

(2) It is a violation of paragraph (a) of Section 56-16-90 for a manufacturer, a distributor, a wholesaler, a distributor branch or division, a factory branch or division, or a wholesale branch or division, or officer, agent, or other representative thereof, to coerce, or attempt to coerce, any motorcycle dealer:

(a) To order or accept delivery of any motorcycle, appliances, equipment, parts, or accessories therefor, or any other commodity or commodities which such motorcycle dealer has not voluntarily ordered.

(b) To order or accept delivery of any motorcycle with special features, appliances, accessories, or equipment not included in the list price of the motorcycle as publicly advertised by the manufacturer thereof.

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

(3) It is a violation of paragraph (a) of Section 56-16-90 for a manufacturer, a distributor, a wholesaler, a distributor branch or division, a factory branch or division, or a wholesale branch or division, or officer, agent, or other representative thereof:

(a) To refuse to deliver, in reasonable quantities and within a reasonable time after receipt of dealer's order, to any motorcycle dealer having a franchise or contractual arrangement for the retail sale of new motor vehicles sold or distributed by such manufacturer, distributor branch or division, factory branch or division, or wholesale branch or division, any such motorcycles as are covered by such franchise or contract specifically publicly advertised by such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division to be available for immediate delivery. The failure to deliver any motorcycle is not a violation of this chapter if the failure is due to an act of God, work stoppage, or delay due to a strike or labor difficulty, shortage of materials, freight embargo, or other cause over which the manufacturer, distributor, or wholesaler, or any agent thereof, has no control.

(b) To coerce, or attempt to coerce, any motorcycle dealer to enter into any agreement with such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, or officer, agent, or other representative thereof, or to do any other act prejudicial to such dealer by threatening to cancel any franchise or any contractual agreement existing between such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, and such dealer. Notice in good faith to any motorcycle dealer of such dealer's violation of any terms or provisions of such franchise or contractual agreement is not a violation of this chapter.

(c) To terminate or cancel the franchise or selling agreement of any dealer without due cause. The nonrenewal of a franchise or selling agreement, without due cause, is an unfair termination or cancellation, regardless of the terms or provisions of the franchise or selling agreement. The manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, or officer, agent, or other representatives thereof shall notify a motorcycle dealer in writing of the termination or cancellation of the franchise or selling agreement of the dealer at least sixty days before the effective date thereof, stating the specific grounds for such termination or cancellation; and such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, or officer, agent, or other representative thereof shall notify a motorcycle dealer in writing at least sixty days before the contractual term of his franchise or selling agreement expires that it will not be renewed, stating the specific grounds for such nonrenewal in those cases where there is no intention to renew, and in no event shall the contractual term of any such franchise or selling agreement expire, without the written consent of the motorcycle dealer involved, prior to the expiration of at least sixty days following such written notice. During the sixty-day period, either party may in appropriate circumstances petition a court to modify the sixty-day stay or to extend it pending a final determination of the proceedings on the merits. The court has authority to grant preliminary and final injunctive relief.

(d) To resort to or use any false or misleading advertisement in connection with his business as such manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesale branch or division, or officer, agent, or other representative thereof.

(e) To offer to sell or to sell any new motorcycle to any motorcycle dealer at a lower actual price therefor than the actual price offered to any other motorcycle dealer for the same model cycle similarly equipped or to utilize any device including, but not limited to, sales promotion plans or programs which result in such lesser actual price. The provisions of this item do not apply to sales to a motorcycle dealer for resale to any unit of the United States Government, the State, or any of its political subdivisions. The provisions of this paragraph do not apply to sales to a motorcycle dealer of any motorcycle ultimately sold, donated, or used by the dealer in a driver education program. The provisions of this paragraph do not apply so long as a manufacturer, distributor, or wholesaler, or any agent thereof, offers to sell or sells new motorcycles to all motorcycle dealers at an equal price. This provision does not apply to sales by manufacturer, distributor, or wholesaler to the United States Government or any agency thereof.

(f) To offer to sell or to sell parts or accessories to any new motorcycle dealer for use in his own business for the purpose of repairing or replacing it on a comparable part or accessory, at a lower actual price therefor than the actual price charged to any other new motorcycle dealer for similar parts or accessories for use in his own business. In those cases where motorcycle dealers operate and serve as wholesalers of parts and accessories to retail outlets or other dealers, whether or not the dealer is regularly designated as a wholesaler, nothing herein contained may be construed to prevent a manufacturer, distributor, or wholesaler, or any agent thereof, from selling to a motorcycle dealer who operates and services as a wholesaler of parts and accessories, such parts and accessories as may be ordered by such motorcycle dealer for resale to retail outlets, at a lower actual price than the actual price charged a motorcycle dealer who does not operate or serve as a wholesaler of parts and accessories.

(g) To prevent or attempt to prevent by contract or otherwise, any motorcycle dealer from changing the capital structure of his dealership or the means by or through which he finances the operation of his dealership, provided the dealer at all times meets any reasonable capital standards agreed to between the dealership and the manufacturer, distributor or wholesaler, and provided the change by the dealer does not result in a change in the executive management of the dealership.

(h) To prevent or attempt to prevent by contract or otherwise, any motorcycle dealer or any officer, partner, or stockholder of any motorcycle dealer from selling or transferring any part of the interest of any of them to any other person or party. No dealer, officer, partner, or stockholder has the right to sell, transfer, or assign the franchise or power of management or control thereunder without the consent of the manufacturer, distributor, or wholesaler except that the consent is being unreasonably withheld.

(i) To obtain money, goods, services, anything of value, or any other benefit from any other person with whom the motorcycle dealer does business, on account of or in relation to the transactions between the dealer and such other person, unless the benefit is promptly accounted for and transmitted to the motorcycle dealer.

(j) To require a motorcycle dealer to assent to a release, assignment, novation, waiver, or estoppel which would relieve any person from liability imposed by this chapter.

(4) It is a violation of paragraph (a) of Section 56-16-90 for a motorcycle dealer:

(a) To require a purchaser of a new motorcycle, as a condition of sale and delivery thereof, to also purchase special features, appliances, equipment, parts, or accessories not desired or requested by the purchaser. This prohibition does not apply as to special features, appliances, equipment, parts, or accessories which are already installed on the motorcycle when received by the dealer provided the motorcycle dealer prior to the consummation of the purchase reveals to the purchaser the substance of this paragraph.

(b) To represent and sell as a new motorcycle any motorcycle which has been used and operated for demonstration purposes or which is otherwise a used motorcycle.

(c) To resort to or use any false or misleading advertisement in connection with his business as such motorcycle dealer.

(5) There is created the Office of Administrator, within the Attorney General's office, and he shall appoint such personnel within his office for the purpose of regulating this chapter. The Administrator has the power to investigate, issue cease and desist orders and injunctive relief on any valid abuse connected with the sale, rental, or leasing of a new or used motorcycle. This power only applies after reasonable attempts by the consumer have been made with the seller, dealer, manufacturer, or lessor of the motorcycle to alleviate the complaint.

HISTORY: 1984 Act No. 511, Section 1.