Judges: ROBERT E. MEALE
Agency: Department of Highway Safety and Motor Vehicles
Latest Update: Oct. 20, 1988
Summary: License granted to dealer to relocate dealership within county of his territory
88-1990.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HARLEY-DAVIDSON, INC. and ) HARLEY-DAVIDSON OF SEMINOLE ) COUNTY, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 88-1990
) DICK FARMER'S HARLEY DAVIDSON ) OF ORLANDO, INC. and ) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on June 9, 1988, in Orlando, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The representatives of the parties were as follows: For Petitioners: Joel S. Rossignolo, Esquire
3616 Squire Lane
Orlando, Florida 32806
For Respondent Dick Michael Gasdick, Esquire Farmer's Harley 250 North Orange Avenue Davidson of Suite 1400
Orlando, Inc.: Orlando, Florida
Joseph C. Jacobs, Esquire Post Office Drawer 1170
Tallahassee, Florida 32302-1170
No appearance for Department of Highway Safety and Motor Vehicles
BACKGROUND
Harley-Davidson of Seminole County, Inc. filed with the Department of Highway Safety and Motor Vehicles an application dated March 28, 1988, for the relocation of its motorcycle dealership. By letter dated November 11, 1987, Dick Farmer's Harley Davidson of Orlando, Inc. had already informed the manufacturer, together with the applicant and the Department, that the proposed franchise relocation would adversely affect the rights of Dick Farmer's Harley Davidson of Orlando, Inc. The Department subsequently denied the application, and Petitioner challenged this denial.
Petitioners presented two witnesses and offered into evidence three exhibits. Respondents presented two witnesses and offered into evidence two exhibits. Respondent's Exhibit 1 was a large map with pins indicating locations of its sales. By agreement, Respondent was to substitute a photograph of this exhibit for the original, but never did so. All exhibits were admitted into evidence.
Each party entering an appearance filed a proposed recommended order.
Treatment accorded the proposed findings of fact is detailed in the Appendix. The transcript was filed with the Department of Highway Safety and Motor Vehicles on July 28, 1988, but was not filed with the Division of Administrative Hearings until September 15, 1988.
FINDINGS OF FACT
Respondent Dick Farmer's Harley Davidson of Orlando, Inc. (Respondent) has been a franchised Harley-Davidson motorcycle dealer in Orlando since 1966. The franchise agreement gives Respondent the right to sell Harley-Davidson products "primarily to persons residing or doing business" in Orange County. At all material times, Respondent has been the exclusive Harley-Davidson dealer in Orange County and has been located at 46 North Orange Blossom Trail, which is also known as Highway 441.
Harley-Davidson, Inc. first awarded a franchise to a dealer in Seminole County in 1976. The original location of the Seminole County dealership was on Highway 436 less than one mile west of Highway 17-92.
The Seminole County dealership was moved about two miles north to its present location on Highway 434 about two miles west of Highway 17-92. After this move, Harley Davidson of Seminole County, Inc. (Petitioner) acquired the Seminole County franchise and has since operated it from the Highway 434 location.
Petitioner's franchise agreement gives it the right to sell Harley- Davidson products "primarily to persons residing or doing business" in Seminole County. At all material times, Petitioner has been the exclusive Harley- Davidson dealer in Seminole County.
By application dated March 28, 1988, Petitioner requested a license to relocate its Harley-Davidson motorcycle franchise from its present location at
490 West Highway 434 to 8155 Highway 17-92. By letter dated November 12, 1987, Harley- Davidson, Inc. gave its approval of the relocation.
On November 11, 1987, Respondent, through its attorney, sent a letter to Harley-Davidson, Inc., with copies to Petitioner and the Department of Highway Safety and Motor Vehicles (Department). In the letter, Respondent stated that a proposed relocation of Petitioner's dealership would adversely affect Respondent's rights under the existing franchise agreement with Harley- Davidson, Inc. and violate Sections 320.641 and 320.642, Florida Statutes.
The Department has denied Petitioner's application for a license to relocate the dealership.
The above-described locations of the Seminole County dealership are all in Seminole County, which is immediately north of Orange County. The present location is on a major east-west highway running through the central portion of south Seminole County, about two miles west of Highway 17-92 and three miles
east of Interstate 4. Both of these highways are important north-south routes linking Seminole and Orange Counties.
The proposed location is about 3 1/4 miles south of the present location. It is less than one mile south of the original location and about .9 mile north of the Orange County line.
Approximately 25% of Respondent's sales are to persons residing in the vicinity of the county line dividing Seminole and Orange Counties, although Respondent was unable to separate its Seminole County sales from north Orange County sales.
There was no evidence that Respondent was inadequately representing Orange County or that Respondent had failed to comply with any provisions of its franchise agreement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes.
Section 320.642, Florida Statutes (1985), provides that the Department shall deny an application for a license in "any community or territory" in which the manufacturer's presently licensed franchised dealer or dealers have complied with the franchise agreements and provided adequate representation "in the community or territory for such license."
The community or territory for Respondent's license is Orange County. The community or territory for Petitioner's license is Seminole County. There is no authority to interpret "community" as meaning anything different from "territory." The courts have used the terms synonymously. See, e.q., Bill Kelley Chevrolet, Inc. v. Calvin, 322 So.2d 50, 52 (Fla. 1st DCA 1975). Petitioner seeks approval to relocate its dealership from one point within Seminole County to another point within Seminole County. Petitioner does not seek a license in Orange County, so the Department is without authority, under Section 320.642, to deny the application for relocation based on the protest of Respondent.
The proximity of a dealer to a county line will influence the number of sales of that dealer into the adjoining county. However, Section 320.642 provides no basis for denying a license on such grounds or in order to protect the sales of one dealer, such as Respondent, into the community or territory of another dealer, such as Petitioner.
Under the facts and applicable law, it is therefore irrelevant that Respondent has adequately represented its community or territory or that it has complied with its franchise agreement.
Under the applicable law, it is unnecessary to address Petitioner's arguments that it is a replacement dealer and, as such, may make the proposed relocation. In each case involving a replacement dealer, the dealers involved shared the same community or territory. The replacement-dealer doctrine has no relevance where, as here, the two dealers involved are exclusive dealers in different communities or territories.
This case is not governed by the recent decision, Anthony Abraham Chevrolet Company, Inc. v. Collection Chevrolet, Inc., et al., So.2d (Fla.
1st DCA 1988)(Case No. 88-251 decided on October 13, 1988). In Collection Chevrolet, the protesting dealer alleged that, by tacit agreement with the manufacturer, the dealer's actual area of primary responsibility was larger than the area to which the dealer was expressly assigned.
New Section 320.642, Florida Statutes, as set forth in Chapter 88-395, Section 12, Laws of Florida, replaces the statutory language set forth above and might affect the result. However, the new statutory provisions are not applicable to "any . . . administrative proceeding pending as of the effective date of this act." Id. at Section 19. Chapter 88-395 took effect on October 1, 1988. Id. at Section 23.
RECOMMENDATION
Based on the foregoing, it is hereby
RECOMMENDED that a Final Order be entered granting a license to Harley Davidson of Seminole County, Inc. to relocate its Harley-Davidson motorcycle dealership from 490 West Highway 434 to 8155 Highway 17-92 in Seminole County.
DONE and RECOMMENDED this 20th day of October, 1988, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1988.
APPENDIX
Treatment Accorded Petitioners' Proposed Findings of Fact 1-2 and 4. Adopted.
3. First clause of first sentence rejected as against the greater weight
of the evidence. According to the map, the distance between Respondent's location and the proposed location is a little over 8 miles. (All distances are "as the crow flies.") Second clause of first sentence adopted. Second sentence rejected as irrelevant.
5-6 and 8. Rejected as irrelevant.
7 and 9. Adopted.
8. Rejected as not finding of fact and irrelevant.
11-16. Rejected as irrelevant. The replacement-dealer doctrine has no application under present law when the dealer relocation takes place outside the territory of the protesting dealer.
17. Adopted except that Petitioner's territory has been established by Harley-Davidson, Inc., not the Department in its earlier final order.
Treatment Accorded Respondent's Proposed Findings of Fact
1 and 4-5. Rejected as not findings of fact. 2-3 and 6. Adopted.
First sentence rejected as against the evidence. Petitioner purchased the dealership after it was moved from Highway 436 to Highway 434. Second sentence adopted.
Adopted in substance.
Rejected as irrelevant.
10 and 13-14. Rejected as subordinate. 11-12. Adopted in substance.
Rejected as irrelevant.
Adopted.
Rejected as repetitious.
Rejected as irrelevant.
and 21. Rejected as subordinate.
and 22. Rejected as unsupported by the greater weight of the evidence.
Rejected as irrelevant.
Rejected as recitation of testimony.
COPIES FURNISHED:
Joel S. Rossignolo, Esquire 3616 Squire Lane
Orlando, Florida 32806
Michael Gasdick, Esquire
250 North Orange Avenue Suite 1400
Orlando, Florida
Joseph C. Jacobs, Esquire Post Office Drawer 1170
Tallahassee, Florida 32302-1170
Harley Davidson, Inc. 3700 West Juneau Avenue Post Office Box 653 Milwaukee, WI 53201
Michael J. Alderman, Esquire
Department of Highway Safety and Motor Vehicles Neil Kirkman Building
Tallahassee, Florida 32399-0500
Dealer License Section Room A3l0
Department of Highway Safety and Motor Vehicles Neil Kirkman Building
Tallahassee, Florida 32399-0500
Enoch Jon Whitney General Counsel
Department of Highway Safety and Motor Vehicles Neil Kirkman Building
Tallahassee, Florida 32399-0500
Charles J. Brantley Director
Division of Motor Vehicles Room B439
Neil Kirkman Building Tallahassee, Florida 32399-0500
Docket for Case No: 88-001990
Orders for Case No: 88-001990
