New Car “Pre-Delivery Service Fees” and Florida’s Deceptive and Unfair Trade Practices Act
In the pending case of MOSHE SIMON v. LEHMAN HYUNDAI SUBARU, INC., Judge Ayana Harris recently denied a motion to dismiss filed by the defendant car dealership, explaining as follows:
In order for a consumer to claim damages under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. §§501.201, et seq., they must prove the following three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D3148a].
The single count in the Complaint alleges that Defendant violated FDUTPA by (1) failing to fully disclose certain pre-delivery service fees, in violation of Fla. Stat. § 501.976(18), and that a substantial portion of those fees constituted dealer profit which Plaintiffs did not actually owe (Compl. ¶¶ 12, 15, 46-49); (2) that dealer actually collected the fees at issue (Compl. ¶ 18); (3) and that Plaintiffs suffered financial harm by being induced to pay a debt they did not owe (Compl. ¶ 22). Accordingly, this Court finds that Plaintiff has properly pled the necessary elements of a FDUTPA violation.
Plaintiff’s FDUTPA claim alleges that Defendant violated Fla. Stat. § 501.976(18) which provides:
(18) Charge a customer for any predelivery service without having printed on all documents that include a line item for predelivery service the following disclosure: “This charge represents costs and profit to the dealer for items such as inspecting, cleaning, and adjusting vehicles, and preparing documents related to the sale.”
The plain language of the statute directs that the charges at issue be printed on all documents. Defendant’s argument that it substantially complied with the statute and that Plaintiff suffered no actual damages and invite this Court to look beyond the four corners of the Complaint and make factual determinations inappropriate on a motion to dismiss. For these reasons, the Motion to Dismiss must be denied.
MOSHE SIMON v. LEHMAN HYUNDAI SUBARU, INC., County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2020-012232-SP-23, February 23, 2021.
Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) protects consumers from a wide variety trade practices and subjects businesses to unique scrutiny. At Lacey Lyons Rezanka, we represent both businesses and consumers, and know how to effectively defend and prosecute claims under the FDUTPA.