South Carolina Code 39-6-80. Notice of intent to establish new dealership or relocate dealership; petition for injunction; factors considered; exceptions
(1) specific location;
Terms Used In South Carolina Code 39-6-80
- Dealership: means the business of selling or attempting to effect the sale by a dealer of new equipment, or the right, whether by written or oral arrangement with a manufacturer, distributor, or wholesaler for a definite or indefinite period of time, to sell or attempt to effect the sale of new equipment. See South Carolina Code 39-6-20
- Dealership agreement: means an oral or written arrangement for a definite or indefinite period in which a manufacturer, distributor, or wholesaler grants to an equipment dealer a license to use a trade name, service mark, or related characteristic, and in which there is a community of interest in the marketing of equipment or services related to it at wholesale, retail, leasing, or otherwise. See South Carolina Code 39-6-20
- Distributor: means a person who sells or distributes new equipment to equipment dealers or who maintains distributor representatives within the State. See South Carolina Code 39-6-20
- Equipment: means machinery, implements, or mechanical devices or apparatuses used in farming, construction, or industry and any outdoor power equipment, but not including:
(a) motor vehicles required to be registered pursuant to § 56-3-110;
(b) motorcycles as defined in § 56-16-10;
(c) outdoor power equipment whose primary source of power is a two-cycle or electric motor;
(d) "all terrain vehicles" or "ATVs" that are three-and-four-wheeled motorized vehicles, generally characterized by large, low-pressure tires, a seat designed to be straddled by the operator and handlebars for steering, which are intended for off-road use by an individual rider on various types of nonpaved terrain;
(e) cranes; or
(f) pneumatic tires, tubes, and flaps and related products and components associated with tires, including tires used in farm, construction, industrial, outdoor power, mining, and other on-and-off road applications. See South Carolina Code 39-6-20 - Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
- Manufacturer: means a person engaged in the business of manufacturing or assembling new and unused equipment. See South Carolina Code 39-6-20
- New equipment: means equipment that has not been sold previously to a person other than a distributor or wholesaler or equipment dealer for resale. See South Carolina Code 39-6-20
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
(2) date of commencement of operation at the new location;
(3) identities of all existing dealers or dealerships located in its market area; and
(4) names and addresses of the dealer and principals.
(B) An existing dealer located in the geographic market area in which a manufacturer, distributor, or wholesaler intends to establish a new dealership or to relocate a current dealer may petition the court, within sixty days of the receipt of the notice, to enjoin or prohibit the establishment of the new or relocated dealer or dealership within the geographic market area of the existing dealer. The court may enjoin or prohibit the establishment of the new dealer or dealership or relocation of a current dealer within the geographic market area of the existing dealer if the dealer proves by a preponderance of the evidence that the existing dealer is providing adequate representation of the product line or make of new equipment in his geographic market area. In determining if the existing dealer is providing adequate representation and whether the new or relocated dealer or dealership is necessary, the court may consider, but is not limited to considering:
(1) the impact the establishment of the new or relocated dealer or dealership will have on users of new equipment, the public, and the existing dealer, except that financial impact may be considered only with respect to the existing dealer;
(2) the size and permanency of investment reasonably made and the reasonable obligations incurred by the existing dealer to perform its obligation pursuant to the dealership agreement or sales agreement;
(3) the reasonably expected market penetration of the product line or make of equipment for the geographic market area, after consideration of all factors that may affect the penetration including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, and other factors affecting sales of equipment in the geographic market area;
(4) actions by the manufacturer, distributor, or wholesaler in denying its existing dealer of the same product line or make of equipment the opportunity for reasonable growth, market expansion, or relocation including the availability of equipment in keeping with reasonable expectations of the manufacturer, distributor, or wholesaler in providing an adequate number of dealerships in the geographic market area;
(5) attempts by the manufacturer, distributor, or wholesaler to coerce the existing dealer into consenting to an additional or relocated dealer or dealership of the same product line or make of new equipment in the geographic market area;
(6) distance, travel time, traffic patterns, and accessibility between the existing dealer’s place of business for the same product line or make of new equipment and location of the proposed new or relocated dealer or dealership;
(7) the likelihood of benefits to users of new equipment from the establishment or relocation of the dealer or dealership, which may not be obtained by other demographic changes or other expected changes in the geographic market area;
(8) if the existing dealer is in substantial compliance with its dealership agreement or sales agreement;
(9) if there is adequate interbrand and intrabrand competition with respect to the product line or make of new equipment, including the adequacy of sales and service facilities;
(10) if the establishment or relocation of the proposed dealer or dealership appears to be warranted and justified based on economic and market conditions pertinent to dealers competing in the geographic market area including anticipated changes; and
(11) the volume of registrations and service business transacted by the existing dealer in the geographic market area of the proposed dealer or dealership.
(C) This section does not apply to:
(1) the addition of a new dealership at a location that is within a three- mile radius of a former dealership of the same product line or make of new equipment that has been closed for less than two years;
(2) the relocation of an existing dealer to a new location that is farther away from the protesting dealer’s location than the relocated dealer’s previous location;
(3) the relocation of an existing dealer to a new location that is within a three-mile radius of the dealer’s current location, when it has been at the current location at least ten years; or
(4) a retailer whose outdoor power equipment sales represent less than ten percent of the retailer’s gross sales in the United States.