STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CENTRAL FLORIDA MACK TRUCKS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 86-4136
)
MACK TRUCKS, INC., )
)
Respondent, )
)
RECOMMENDED ORDER
This cause came on for consideration upon Respondent MACK TRUCKS, INC.'s Motion for Severance served October 3, 1986, which notion includes in its prayer for relief the request that a Recommended Order be entered as to the Mack Distributor Agreement which is at issue in this cause.
No response in opposition to the Motion for Severance has been filed by Petitioner, nor has Petitioner moved for oral argument thereon. Oral argument is not a matter of right before the Division of Administrative Hearings and accordingly this issue may be disposed of pursuant to Rule, 22I-6.16 F.A.C.
FINDINGS OF FACT
CENTRAL FLORIDA's complaint for Unfair Termination in the form of a letter dated July 9, 1986, was filed in triplicate with the Department of Highway Safety and Motor vehicles on July 10, 1986, and alleged as follows:
CENTRAL FLORIDA MACK TRUCKS, INC. has two
agreements with MACK TRUCK, INC. The first agreement is a Mack Distributor Agreement dated July 1, 1967. The second agreement is a Mack Mid-Liner distributor Agreement dated September 20, 1979. MACK TRUCKS' letter of April 10, 1986, indicates they are "terminating" my agreements.
As alleged by Petitioner CENTRAL FLORIDA, Respondent has terminated two Distributor Agreements, the MACK Agreement dated July 1, 1967, and the Mid-Liner Agreement dated September 20, 1979.
To the extent the letter/complaint addresses the Mack Distributor Agreement dated July 1, 1967, it should be dismissed upon authority of Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975). In Yamaha, the Florida Supreme Court was faced with the unfair termination statute here at issue, Section 320.641 Florida Statutes, and the issue of its applicability to dealer agreements entered into between manufacturers and dealers prior to the effective date of the statute, January 1, 1971.
On the basis of Article I, Section 10, of the U.S. Constitution and Article I, Section 10, of the Florida Constitution, regarding impairment of contracts, the Supreme Court held
We hold that Section 320.641, Florida Statutes, applies prospectively to motor vehicles franchise contracts signed after its effective date.
Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d at 560.
Yamaha is unambiguous. Therefore, as to the Mack Distributor Agreement, Section 320.641 does not apply. The Department of Highway Safety and Motor Vehicles, and through it the Division of Administrative Hearings and the undersigned hearing officer, have no jurisdiction to adjudicate the Complaint for Unfair Termination as it addresses the July 1, 1967 Mack Distributor Agreement. This determination was made in an Order entered in DOAH Case No. 86- 2622 on August 28, 1986.
Since August 28, 1986, Petitioner has provided a more definite statement as to the Mack Mid-Liner Distributor Agreement which has been determined by the under signed Hearing Officer to be in compliance with her previous order.
On October 3, 1986 Respondent moved for severance of the two distributor agreements, which severance was granted by an Corrected Order entered October 27, 1986. That order re-numbered the cause as pertains to the July 1, 1967 Mack Distributor Agreement as DOAH Case No. 86-4136 and retained DOAH Case No. 86-2622 for the cause as it pertains to the Mack Mid-Liner Distributor Agreement.
Within its motion, Respondent represented that a recommended order (presumably leading to a final order) be entered at this time.
Respondent has shown good cause for granting the relief prayed for.
Without such relief, the Mack Distributor agreement hangs in limbo until such time as a recommended order is entered incorporating the August 28, 1986 ruling on the Mack Distributor Agreement and resolving all disputed issues of material fact concerning the Mack Mid-Liner Distributor Agreement is entered (presumably at least 30 days after conclusion of the final formal evidentiary hearing now scheduled to conclude January 6, 1987).
Continuation of this situation pending the formal evidentiary hearing on the Mack Mid-Liner Distributor Agreement, typing of transcripts, submission of proposed findings of fact and conclusions of law, entry of a recommended order, filing of exceptions, and entry of the agency's final order prejudices Respondent Mack in that Mack is unable to appoint a new distributor in Central Florida.
CONCLUSIONS OF LAW
Respondent's prior Motion to Dismiss the letter/complaint with regard to the Mack Distributor Agreement has been granted by Order of August 28, 1986.
All issues with regard to the Mack Distributor Agreement have been severed from the remaining Mack Mid-Liner Agreement by Corrected Order of October 27, 1986.
It is appropriate that a recommended order as to the Mack Distributor Agreement dated July 1, 1967 be entered expeditiously. This instant order is that order in the renumbered DOAH Case No. 86-4136.
It is appropriate that the undersigned retain jurisdiction to hold a Section 120.57(1) F.S. evidentiary hearing and thereafter enter a recommended order as to the Mack Mid-Liner Distributor Agreement dated September 20, 1979. That latter cause shall continue before the Division of Administrative Hearings as DOAH Case No. 86-2622.
That the Secretary of the Department of Highway Safety and Motor Vehicles enter a final order dismissing this cause only as the July 1, 1967 Mack Distributor Agreement.
DONE and ORDERED this 28th day of October, 1986, in Tallahassee, Florida.
ELLA JANE P. DAVIS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986.
COPIES FURNISHED:
Donald E. Cabaniss, Esquire
11 East Pine Street Post Office Box 1873 Orlando, Florida 32302
Dean Bunch, Esquire
305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302
C. Jeffrey Arnold, Esquire 857 North Orange Avenue Post Office Box 2967 Orlando, Florida 32802
| Issue Date | Proceedings |
|---|---|
| Oct. 28, 1986 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 28, 1986 | Recommended Order | Statute doesn't apply to 1967 contract, but request for severance of 1979 contract granted. Hearing officer's jurisdiction retained for new hearing. |
