STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHEY BUICK-PONTIAC, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 77-836

) BUICK MOTOR DIVISION, PONTIAC ) DIVISION and GMC TRUCK AND COACH ) DIVISION, GENERAL MOTORS )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R. N. McDonnell, Hearing Officer, for the Division of Administrative Hearings at 9:00 a.m., on June 29, 1977, in the Lake County Courthouse, Tavares, Florida.

APPEARANCES

For Petitioner: Christopher Ford, Esquire, and

Sanford Minkhoff, Esquire, Ford, Cauthen & Robuck

101 East Maud Street Tavares, Florida 32778

For Respondent: Joseph C. Jacobs, Esquire, and

James P. Melican, Jr., Esquire Post Office Box 1170 Tallahassee, Florida 32778

Dealer seeks a determination pursuant to 320.641, Florida Statutes, that its franchise agreements with the Manufacturer were cancelled unfairly. The Dealer contends that (1) the Department of Highway Safety and Motor Vehicles failed to follow proper statutory procedure in cancelling its dealer license, and (2) its failure to maintain dealership operations open for business for seven consecutive business days was occasioned by a course of conduct on the part of Manufacturer designed to force the cessation of active dealership operations. For these reasons, claims the Dealer, the cancellation of its three franchise agreements with the Manufacturer on the grounds that the dealer license was revoked and that dealership operations were not maintained for seven consecutive business days is unfair.

The Dealer contends that the burden is upon the Manufacturer in these cases to establish that the termination was done fairly. The Manufacturer, on the other hand, takes the position that the burden is upon the Dealer to establish that termination was unfair. As will be demonstrated below, the Manufacturer's position is the correct one. Since Dealer introduced insufficient evidence to

establish an unfair termination of its franchise, Dealer's assertion that Manufacturer failed to establish a fair termination is of no import.

FINDINGS OF FACT

1. On January 1, 1977, the Department of Highway Safety and Motor Vehicles issued Dealer a license to conduct the business of buying and selling motor vehicles at U.S. Highway 441, South, Leesburg, Florida. On January 19, 1977, Dealer's license was revoked by the Department of Highway Safety and Motor Vehicles for the reason that Dealer was no longer conducting business.

   
   

2. Effective November 1, 1975, Dealer and Manufacturer executed franchise agreements authorizing Dealer to conduct dealership operations on behalf of Buick Motor Division, Pontiac Division and GMC Truck Division. These franchise agreements provide that they may be terminated if a required license is revoked or if the dealer fails to maintain his operation open for business for seven (7) consecutive business days.

   
   

3. On January 28, 1977, Manufacturer gave Dealer notice that the three franchise agreements would terminate on the ninetieth day following receipt of the notice. The grounds for revocation were that the Dealer's license had been revoked and that dealership operations were not maintained for seven consecutive business days.

   
   

   CONCLUSIONS OF LAW

   
   

4. The controlling issue in this case is whether the Dealer has the burden of establishing the unfair cancellation of its franchise agreements. Section 320.641, Florida Statutes, provide inter alia that dealers may file verified complaints for determinations of unfair cancellation. Agreements are to remain in effect until final determination of the issues raised in the complaint.

   
   

5. Should the dealer elect not to file a complaint, his franchise terminates on the specified effective date in the notice of termination. It follows, therefore, that terminations are not automatically subject to scrutiny as to their fairness. It is only those in which the dealer raises the issue of unfairness that the administrative process operates.

   
   

6. The statutory scheme is to make the dealer the moving party. It is the dealer seeking the affirmative of the issue of whether the franchise was unfairly terminated. The Legislature has manifested no intent to require a manufacturer to justify the fairness of any given franchise termination at the dealer's request.

   
   

7. It is the moving party that has the burden of going forward. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. 1 Cooper, State Administrative Law 355 (1965); 1 Fla. Jur., Administrative Law, Sec. 120; Tropical Park v. Ratliff, 97 So.2d 169, 177 (Fla. 1957); Parrish v. Florida Department of Revenue, Case No. 77-429, State of Florida, Division of Administrative Hearings, Recommended Order, May 31, 1977; Balino v. Florida Department of Health and Rehabilitative Services, So.2d

(Fla. 1st DCA 1977).

It is, therefore, concluded that in proceedings brought pursuant to Section 320.641, Florida Statutes, the burden of establishing that a franchise agreement was terminated unfairly is upon the dealer. In the instant case the Dealer's contention that the burden of proof is on the manufacturer is incorrect. There

being a complete absence of evidence to establish that the termination of Dealer's franchises was unfair, it is

RECOMMENDED that the claim of unfair termination be denied.

DONE and ENTERED this 30th day of August, 1977, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Sanford A. Minkhoff, Esquire Ford, Cauthen & Robuck

101 East Maud Street Tavares, Florida 32778

Joseph C. Jacobs, Esquire Ervin, Varn, Jacobs, Odom

and Kitchen

Post Office Box 1170 Tallahassee, Florida 32302

Christopher Ford, Esquire Ford, Cauthen & Robuck

101 East Maud Street Tavares, Florida 32778

Docket for Case No: 77-000836

Orders for Case No: 77-000836