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Minnesota Legislature

Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

                            CHAPTER 456-S.F.No. 1870 
                  An act relating to motor vehicles; regulating motor 
                  vehicle fuel franchises and marketing agreements; 
                  amending Minnesota Statutes 1998, section 80C.01, 
                  subdivision 4, and by adding subdivisions; proposing 
                  coding for new law in Minnesota Statutes, chapter 80C; 
                  proposing coding for new law as Minnesota Statutes, 
                  chapter 80F. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  Minnesota Statutes 1998, section 80C.01, 
        subdivision 4, is amended to read: 
           Subd. 4.  (a) "Franchise" means (a) (1) a contract or 
        agreement, either express or implied, whether oral or written, 
        for a definite or indefinite period, between two or more persons:
           (1) (i) by which a franchisee is granted the right to 
        engage in the business of offering or distributing goods or 
        services using the franchisor's trade name, trademark, service 
        mark, logotype, advertising, or other commercial symbol or 
        related characteristics; 
           (2) (ii) in which the franchisor and franchisee have a 
        community of interest in the marketing of goods or services at 
        wholesale, retail, by lease, agreement, or otherwise; and 
           (3) (iii) for which the franchisee pays, directly or 
        indirectly, a franchise fee; or 
           (b) (2) a contract, lease, or other agreement, either 
        express or implied, whether oral or written, for a definite or 
        indefinite period, between two or more persons, whereby the 
        franchisee is authorized, permitted, or granted the right to 
        market motor vehicle fuel using at retail under the franchisor's 
        trade name, trademark, service mark, logotype, advertising, or 
        other commercial symbol or related characteristics for which the 
        franchisee pays a franchise fee owned or controlled by the 
        franchisor; or 
           (c) (3) the sale or lease of any products, equipment, 
        chattels, supplies, or services to the purchaser, other than the 
        sale of sales demonstration equipment, materials or samples for 
        a total price of $500 or less to any one person, for the purpose 
        of enabling the purchaser to start a business and in which the 
        seller:  
           (1) (i) represents that the seller, lessor, or an affiliate 
        thereof will provide locations or assist the purchaser in 
        finding locations for the use or operation of vending machines, 
        racks, display cases, or similar devices, or currency operated 
        amusement machines or devices, on premises neither owned or 
        leased by the purchaser or seller; or 
           (2) (ii) represents that the seller will purchase any or 
        all products made, produced, fabricated, grown, bred, or 
        modified by the purchaser using, in whole or in part, the 
        supplies, services, or chattels sold to the purchaser; or 
           (3) (iii) guarantees that the purchaser will derive income 
        from the business which exceeds the price paid to the seller; or 
           (d) (4) an oral or written contract or agreement, either 
        expressed or implied, for a definite or indefinite period, 
        between two or more persons, under which a manufacturer, selling 
        security systems through dealers or distributors in this state, 
        requires regular payments from the distributor or dealer as 
        royalties or residuals for products purchased and paid for by 
        the dealer or distributor.  
           (e) (b) "Franchise" does not include any business which is 
        operated under a lease or license on the premises of the lessor 
        or licensor as long as such business is incidental to the 
        business conducted by the lessor or licensor on such premises, 
        including, without limitation, leased departments, licensed 
        departments, and concessions. 
           (f) (c) "Franchise" does not include any contract, lease or 
        other agreement whereby the franchisee is required to pay less 
        than $100 on an annual basis, except those franchises identified 
        in paragraph (b) (a), clause (2). 
           (g) (d) "Franchise" does not include a contract, lease or 
        other agreement between a new motor vehicle manufacturer, 
        distributor, or factory branch and a franchisee whereby the 
        franchisee is granted the right to market automobiles, 
        motorcycles, trucks, truck tractors, or self-propelled motor 
        homes or campers if the foregoing are designed primarily for the 
        transportation of persons or property on public highways. 
           (h) (e) "Franchise" does not include a contract, lease, or 
        other agreement or arrangement between two or more air carriers, 
        or between one or more air carriers and one or more foreign air 
        carriers.  The terms "air carrier" and "foreign air carrier" 
        shall have the meanings assigned to them by the Federal Aviation 
        Act, United States Code Appendix, title 49, sections 1301(3) and 
        1301(22), respectively. 
           (f) For purposes of this chapter, a person who sells motor 
        vehicle fuel at wholesale who does not, or is not an affiliate 
        of a person who, owns or controls the trademark, trade name, 
        service mark, logotype, or other commercial symbol or related 
        characteristics under which the motor vehicle fuel is sold at 
        retail, is not a franchisor or a franchisee, and is not 
        considered to be part of a franchise relationship. 
           Sec. 2.  Minnesota Statutes 1998, section 80C.01, is 
        amended by adding a subdivision to read: 
           Subd. 20.  [AFFILIATE.] "Affiliate" means any person who 
        controls, is controlled by, or is under common control with, any 
        other person.  The term includes, without limitation, partners, 
        business entities with common ownership, principals of any 
        business entity, and subsidiaries, parent companies, or holding 
        companies of any person. 
           Sec. 3.  Minnesota Statutes 1998, section 80C.01, is 
        amended by adding a subdivision to read: 
           Subd. 21.  [MOTOR VEHICLE FUEL.] "Motor vehicle fuel" means 
        gasoline of a type distributed for use as a fuel in a 
        self-propelled vehicle designed primarily for use on public 
        streets, roads, and highways, but does not include diesel fuel 
        or specialty fuel. 
           Sec. 4.  Minnesota Statutes 1998, section 80C.01, is 
        amended by adding a subdivision to read: 
           Subd. 22.  [SPECIALTY FUEL.] "Specialty fuel" means a 
        gasoline sold (1) by a refiner who directly or through an 
        affiliate does not own, lease, or have any leasehold or other 
        possessory rights to the marketing premises; and (2) under a 
        trademark or trade name that is different from the trademark, 
        trade name, service mark, logotype, or other commercial symbol 
        used to identify the marketing premises generally. 
           Sec. 5.  [80C.147] [CHANGE IN OWNERSHIP.] 
           A motor vehicle fuel franchisor, or an affiliate of such 
        franchisor, who determines to (1) sell or transfer its interests 
        in marketing premises occupied by a franchisee, and (2) in 
        connection with such sale or transfer assigns its interest as a 
        franchisor in a franchise agreement applicable to such premises, 
        shall offer to the franchisee occupying the premises those 
        rights contained in United States Code, title 15, section 
        2802(b)(3)(D)(iii)(I) or (II).  This section expires 12 months 
        after the day of final enactment. 
           Sec. 6.  [80F.01] [DEFINITIONS.] 
           Subdivision 1.  [SCOPE.] For the purposes of this chapter, 
        the following terms have the meanings given to them in this 
        section. 
           Subd. 2.  [AFFILIATE.] "Affiliate" means a person who 
        controls, is controlled by, or is under common control with, any 
        other person.  Affiliate includes, without limitation, partners, 
        business entities with common ownership, principals of any 
        business entity, and subsidiaries, parent companies, or holding 
        companies of any person. 
           Subd. 3.  [DEALER.] "Dealer" means a person permitted to 
        market motor vehicle fuel pursuant to a marketing agreement. 
           Subd. 4.  [FACILITY.] "Facility" means the premises which, 
        under a marketing agreement, are to be used by a dealer in 
        connection with the sale, consignment, and distribution of motor 
        vehicle fuel to the public for ultimate consumption. 
           Subd. 5.  [INCENTIVE.] "Incentive" or "incentives" means 
        any rebates, volume credits, volume discounts, funds for 
        construction, funds for reimaging, funds for equipment, funds 
        for fixtures, funds for equipment or fixture upgrades, 
        equipment, fixtures, or any other money or things of value 
        provided by or passed through the supplier to a dealer and which 
        are required by the terms of the agreement between the supplier 
        and the dealer to be repaid by the dealer if the terms of the 
        supply contract, whether oral or written, are not met. 
           Subd. 6.  [MARKETING AGREEMENT.] "Motor vehicle fuel 
        marketing agreement" or "marketing agreement" means any 
        contract, lease, or other agreement, whether that agreement is 
        oral or written and whether it is express or implied, between a 
        supplier or its affiliate and a dealer whereby a dealer is 
        supplied motor vehicle fuel by a supplier or its affiliate for 
        marketing from a facility under a brand name, trade name, 
        service mark, logotype, or other commercial symbol or related 
        characteristics owned or controlled by the supplier or its 
        affiliate, or where the supplier or its affiliate authorizes or 
        permits such use.  The term includes any agreement between the 
        supplier and its affiliate and the dealer to occupy or lease a 
        facility, but does not include any agreement that meets the 
        definition of a franchise under chapter 80C. 
           Subd. 7.  [PERSON.] "Person" means a natural person, 
        corporation, partnership, trust, or other legal entity. 
           Subd. 8.  [SUPPLIER.] "Supplier" means a person other than 
        a refiner who supplies motor vehicle fuel to a dealer pursuant 
        to a marketing agreement. 
           Sec. 7.  [80F.02] [REQUIRED DISCLOSURES.] 
           Subdivision 1.  [FORM OF DISCLOSURES.] The disclosures 
        required by this section must be made in writing by the supplier 
        or its affiliate to the dealer, and must be made either prior to 
        the execution of any marketing agreement or as part of the 
        marketing agreement itself. 
           Subd. 2.  [CONTENT OF DISCLOSURES.] The supplier or its 
        affiliate must disclose the following information to the extent 
        it is known to the supplier or affiliate: 
           (1) the prior three year motor vehicle fuel gallonage 
        history of the premises, unless previously operated by the same 
        dealer; 
           (2) the interest, by ownership, lease, or other means of 
        control, of the supplier, an affiliate of the supplier, or any 
        other person, in the facility; 
           (3) any plans for condemnation, roadway alteration, or 
        other government action that would materially impact the 
        dealer's occupation of the facility or the marketing of motor 
        vehicle fuel from the facility; 
           (4) any agreements the supplier or affiliate may have to 
        alter, sell, or otherwise dispose of the facility; and 
           (5) the name, current address, and current telephone number 
        of all dealers who have occupied the facility in the three-year 
        period before the disclosure is made. 
           Sec. 8.  [80F.03] [SURVIVORSHIP.] 
           Subdivision 1.  [DESIGNATED FAMILY MEMBER.] For purposes of 
        this section, "designated family member" means the spouse, 
        child, grandchild, parent, brother, or sister of the operator. 
           Subd. 2.  [RIGHT TO SUCCEED TO AGREEMENT.] Any designated 
        family member of a deceased or incapacitated dealer may succeed 
        to the marketing agreement if (1) the designated family member 
        gives the supplier written notice of the intention to succeed to 
        the agreement within 60 days of the dealer's death; (2) the 
        designated family member agrees to be bound by the terms and 
        conditions of a written existing marketing agreement; and (3) 
        the designated family member is a person who meets the 
        supplier's reasonable standards.  At the request of the 
        supplier, the designated family member must provide any personal 
        and financial data that is reasonably necessary to determine 
        whether the designated family member meets the reasonable 
        standards of the supplier. 
           Subd. 3.  [STANDARDS.] Reasonable standards used by a 
        supplier may include, but are not limited to, consideration of 
        the designated family member's ability and potential to operate 
        the facility at the same level as the former operator, and of 
        the designated family member's gasoline marketing experience, 
        education, creditworthiness, and management experience. 
           Subd. 4.  [WRITTEN AGREEMENT TO BE OFFERED.] If the 
        marketing agreement under which the deceased or incapacitated 
        dealer operated the facility was oral, the supplier shall offer 
        a reasonable written agreement to the designated family member 
        within 30 days of the designated family member's notification to 
        the supplier of intent to succeed to the agreement.  If the 
        designated family member does not, within 30 days after 
        receiving the written agreement from the supplier, either accept 
        the terms of the offered agreement or object to the terms as 
        unreasonable, the designated family member shall be deemed to 
        have waived the right of succession. 
           Subd. 5.  [REFUSAL TO ALLOW SUCCESSION.] If a supplier 
        believes in good faith that the designated family member does 
        not meet the supplier's reasonable standards, the supplier shall 
        notify the designated family member of the refusal to allow 
        succession and intent to terminate the marketing agreement.  
        This notice must be provided no more than 90 days after the 
        supplier receives all personal and financial data requested from 
        the designated family member.  The agreement must not be 
        terminated less than 90 days after notice is served on the 
        designated family member. 
           Subd. 6.  [DISPUTE REGARDING RIGHT OF SUCCESSION; BURDEN OF 
        PROOF.] In determining whether a designated family member failed 
        to meet a supplier's reasonable standards, the supplier has the 
        burden of proving that the standards used are reasonable, and 
        the designated family member has the burden of proving that 
        those standards that are reasonable have been met. 
           Subd. 7.  [PERMISSIBLE CONDITION ON SUCCESSION.] As a 
        condition of succession, the supplier may require that 
        reasonable arrangements be entered into for the payment of rent 
        or product payment during the interim period from the date of 
        the dealer's death or incapacity until succession is completed 
        or the right to succession is terminated. 
           Sec. 9.  [80F.04] [ELIMINATION OF SERVICE BAYS PROHIBITED.] 
           Subdivision 1.  [SERVICE BAYS.] For the purposes of this 
        section, "service bay" means an enclosed area where automobile 
        repairs are performed, including, but not limited to, 
        lubrication, oil change, tire repair, battery charge, 
        replacement of fan belts, hoses, and wiper blades. 
           Subd. 2.  [PROVISION FOR ELIMINATION OF SERVICE BAYS.] A 
        marketing agreement that includes a lease of the facility to the 
        dealer must provide that if the supplier eliminates one or more 
        service bays during the term of the marketing agreement, the 
        supplier must first pay to the dealer in cash an amount that 
        fairly and adequately compensates the dealer for the loss of the 
        service and repair business. 
           Subd. 3.  [WAIVER.] The provision required by subdivision 2 
        may not be waived or modified except in a writing signed by the 
        dealer executed at least 30 days after the execution of the 
        marketing agreement.  The writing must be separate and 
        independent from the marketing agreement, and shall eliminate 
        the payment provisions of subdivision 2. 
           Subd. 4.  [LIMITATIONS.] Nothing in this subdivision 
        prohibits a supplier from altering, modifying, or remodeling a 
        full-service station, without payment to the dealer, following 
        the expiration of the franchise relationship based upon 
        termination or nonrenewal of the franchise relationship in 
        accordance with United States Code, title 15, section 
        2802(b)(3)(D). 
           Sec. 10.  [80F.05] [HOURS OF OPERATION.] 
           A supplier may set forth in a marketing agreement the 
        required number of hours per day and days per week that the 
        dealer must maintain the retail outlet open for business.  
        However, the supplier shall not unreasonably withhold consent to 
        a modification of such requirements where the dealer can 
        demonstrate that the modification is reasonable based on a 
        change of circumstances, including economic conditions. 
           Sec. 11.  [80F.06] [OTHER BUSINESSES ON THE PREMISES.] 
           The supplier may set forth in the marketing agreement any 
        prohibitions and limitations on the conduct of any other 
        businesses at the facility, including a charge for additional 
        rent where another business is permitted and conducted.  
        However, the supplier shall not unreasonably withhold consent to 
        the performance of another business, impose unreasonable 
        limitations on the dealer's ability to perform any other 
        business, or charge an unreasonable rent for the conduct of 
        another business, considering the fair rental value of the site 
        and any imposition upon the supplier's business. 
           Sec. 12.  [80F.07] [PRICE CONTROLS.] 
           The price at which the dealer sells products shall not be 
        fixed, established, or regulated by the supplier or the 
        marketing agreement. 
           Sec. 13.  [80F.08] [PROMOTIONAL REQUIREMENTS.] 
           No dealer or supplier shall be required to use any 
        promotion, premium, coupon, giveaway, or rebate.  Except as 
        otherwise provided by law, nothing herein shall be construed to 
        prohibit voluntary participation in a promotion, premium, 
        coupon, giveaway, or rebate. 
           Sec. 14.  [80F.09] [DISPOSITION OF PRODUCT.] 
           In the event of termination or nonrenewal of the marketing 
        agreement, whether by mutual agreement or otherwise, the 
        supplier shall purchase from the dealer products that were 
        available for sale to the public at the facility and were 
        purchased from the supplier, provided that the products are 
        tendered by the dealer no later than 30 days from the date of 
        the termination or nonrenewal of the marketing agreement.  The 
        payment for the products shall be the then current wholesale 
        price of the products, minus a reasonable restocking fee for 
        products moved by the supplier.  The payment shall be reduced by 
        any amount of indebtedness owed by the dealer to the supplier.  
        If the dealer has in its possession on the date of termination 
        any products which were supplied by the supplier which have not 
        been paid for in full, the dealer at its expense shall, within 
        30 days of the termination or nonrenewal of the marketing 
        agreement, transfer to the supplier all of such products in a 
        merchantable condition.  The provisions of this section are 
        subject to valid liens against the products by or on behalf of 
        other creditors of the dealer. 
           Sec. 15.  [80F.10] [FREE ASSOCIATION.] 
           No supplier shall restrict or prohibit, directly or 
        indirectly, the right of free association among dealers for any 
        lawful purpose.  No dealer shall restrict or prohibit, directly 
        or indirectly, the right of free association among suppliers for 
        any lawful purpose. 
           Sec. 16.  [80F.11] [RELEASE AND WAIVER.] 
           No party to a marketing agreement shall require as a 
        condition of entering into the marketing agreement that the 
        other party assent to a release or waiver of any rights provided 
        by this chapter, or include in a marketing agreement a release 
        of claims.  Any such waiver or release is void.  The right of 
        either party to the interposition of counterclaims or 
        crossclaims shall not be waived by the marketing agreement, and 
        any such provision is void. 
           Sec. 17.  [80F.12] [SECURITY DEPOSIT.] 
           A security deposit shall not be required except for the 
        purpose of securing against loss of or damage to real or 
        personal property or payment of money due to the supplier or 
        credit extended to the dealer.  Any security deposit required of 
        the dealer may be satisfied by a letter of credit or the deposit 
        of cash or a pledge of a savings account or its equivalent in a 
        banking institution located in Minnesota.  In the event that the 
        security deposit is made by the dealer by depositing cash with 
        the supplier, the deposit shall earn interest at the rate of six 
        percent per year which shall accrue to the benefit of the dealer 
        and be payable to the dealer upon termination of the security 
        deposit, less any charges to which the supplier is entitled to 
        collect from the security deposit or interest earned on it.  In 
        the event that the security deposit is made by the pledge of a 
        savings account, a savings account shall be opened in the joint 
        name of the supplier and the dealer and neither party shall be 
        entitled to withdraw the funds without the consent of the other 
        party; upon termination of the security deposit arrangement, the 
        principal deposit together with accrued interest at the rate 
        paid for the account shall be payable to the dealer after 
        deduction of any charges to which the supplier may be entitled. 
           Sec. 18.  [80F.13] [VIOLATION OF LAW.] 
           No party to a marketing agreement shall require or 
        encourage any other party to the marketing agreement to violate 
        or conspire to violate any state, federal, or local laws. 
           Sec. 19.  [80F.14] [ASSIGNMENT.] 
           Subdivision 1.  [LEASE ARRANGEMENTS.] If a dealer leases a 
        facility under a marketing agreement with the supplier or its 
        affiliate, the provisions of this subdivision apply.  A supplier 
        shall not unreasonably withhold or delay its consent to any 
        assignment or transfer of a marketing agreement.  The dealer may 
        assign the marketing agreement to another person that meets the 
        reasonable standards of the supplier.  A dealer who intends to 
        assign the marketing agreement shall give the other party notice 
        of the proposed assignment and shall identify the proposed 
        assignee.  At the time of serving notice of assignment, a dealer 
        shall promptly provide, at the request of the other party, 
        personal and financial data that is reasonably necessary to 
        determine whether the assignment should be honored.  If the 
        supplier who is requested to approve the assignment believes in 
        good faith that reasonable cause exists for refusing to honor 
        the assignment, that person shall inform the dealer of the 
        denial and the reasons for denial within 60 days of receiving 
        the notice of assignment.  A supplier may condition assignment 
        upon the agreement of the dealer who intends to assign and the 
        other assignee to be bound by all terms and conditions of the 
        existing marketing agreement. 
           Subd. 2.  [NONLEASE ARRANGEMENTS.] If a marketing agreement 
        does not involve the lease of the facility by the dealer from 
        the supplier, the agreement shall be freely assignable by the 
        dealer or the supplier, provided that such assignment does not 
        increase the burdens or obligations of the other party.  A 
        supplier may require an assignee to make reasonable and adequate 
        credit arrangements for the payment of product delivered.  If 
        the assigning dealer has an incentive obligation to the 
        supplier, the assigning dealer either shall obtain the consent 
        of the supplier to the proposed assignment, which consent shall 
        not be unreasonably withheld, or shall provide reasonable and 
        adequate security for the benefit of the supplier to assure that 
        the assignor's incentive obligation to the supplier is met by 
        the assignee dealer. 
           Sec. 20.  [80F.15] [ASSIGNMENT OF FACILITY LEASE OPTION.] 
           A supplier or an affiliate of a supplier who has an option 
        to purchase, or an option to lease or extend the lease of a 
        facility occupied by a dealer, who determines not to exercise 
        the option, shall offer to assign or otherwise transfer the 
        option to the dealer.  The supplier may charge the dealer a 
        reasonable legal and administrative cost for transfer of the 
        option.  Options to purchase, or lease or extend the lease of a 
        facility created after the effective date of this section are 
        assignable to the dealer who occupies the facility.  If the 
        dealer exercises the option, the supplier or affiliate is not 
        liable for the performance of the dealer pursuant to the option 
        or the underlying lease after the option is exercised. 
           Sec. 21.  [80F.16] [DEALER NOTICE OF TERMINATION.] 
           A dealer may only terminate a marketing agreement if the 
        dealer provides 90 days' written notice of termination to the 
        supplier.  On or before the termination date, the dealer shall 
        repay to the supplier any incentive money that is required to be 
        repaid to the supplier upon termination pursuant to the terms of 
        the marketing agreement.  The giving of notice of termination 
        shall not eliminate a claim by the supplier for damages for 
        breach of contract. 
           Sec. 22.  [80F.17] [ENFORCEMENT.] 
           Any person aggrieved by a violation of this chapter may 
        obtain injunctive relief, damages, rescission, or other relief.  
        It is not a defense to an action for injunctive relief that an 
        aggrieved person may have adequate remedies at law.  A party 
        shall submit the dispute to binding arbitration in accordance 
        with the commercial rules of the Minnesota American Arbitration 
        Association.  Injunctive relief shall remain available in a 
        court of competent jurisdiction where arbitration cannot provide 
        complete relief to vindicate the rights of either party or where 
        appropriate to secure rights after arbitration.  The court or 
        arbitrator shall have the discretion to award to the prevailing 
        party its costs and disbursements.  No action may be commenced 
        under this chapter more than three years after the cause of 
        action accrued.  If the marketing agreement provides for the 
        right of the supplier to recover attorney fees as the prevailing 
        party in a suit between the parties, then the dealer shall have 
        the right to recover attorney fees as the prevailing party in an 
        action under this marketing agreement or under this chapter. 
           Sec. 23.  [80F.18] [CHOICE OF LAW AND JURISDICTION.] 
           The laws of the state of Minnesota shall govern any 
        marketing agreement whereby the dealer is or will be marketing 
        motor vehicle fuel in Minnesota and venue for all actions shall 
        be the state of Minnesota.  Any condition, stipulation or 
        provision, including any choice of law provision or any choice 
        of venue provision, purporting to bind any person who is 
        acquiring a marketing agreement to be operated in this state to 
        waive compliance with any provisions of this chapter is void. 
           Sec. 24.  [EFFECTIVE DATE.] 
           Sections 1 and 2 are effective the day following final 
        enactment and apply to franchises entered into, amended, or 
        renewed on or after that date.  Any franchise in existence on 
        the effective date of this act that has no expiration date is 
        considered to be renewed August 1, 2000, for purposes of the 
        application of sections 1 and 2. 
           Sections 4 to 23 are effective on the day following final 
        enactment for existing written marketing agreements to the 
        extent allowable by law.  Sections 4 to 23 are effective one 
        year after final enactment for existing oral marketing 
        agreements, except that sections 8, 12, and 21 are effective the 
        day following final enactment for existing oral marketing 
        agreements. 
           Sections 4 to 23 are effective the day following final 
        enactment for agreements entered into, modified, renewed, or 
        extended on or after that date.  A marketing agreement with an 
        indefinite term or no expiration date shall be deemed to be 
        extended for the purposes of this section if continued after 
        August 1, 2000. 
           Presented to the governor May 2, 2000 
           Signed by the governor May 5, 2000, 10:50 a.m.