STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRYSLER CORPORATION AND CARUSO ) CHRYSLER-PLYMOUTH, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-2481
) STATE OF FLORIDA, DEPARTMENT OF ) HIGHWAY SAFETY AN MOTOR VEHICLES, ) DIVISION OF MOTOR VEHICLES, )
)
Respondent, )
and )
)
MASSEY DODGE, INC., AND )
WESTSIDE DODGE, INC., )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on January 10, 1983, in Jacksonville, Florida, in the Richard P. Daniels Building.
APPEARANCES
For Petitioners: Gerald W. Weedon, Esquire
Post Office Box 447 Jacksonville, Florida 32201
and
Allan M. Huss, Esquire Office of General Counsel Chrysler Corporation
Post Office Box 1919 Detroit, Michigan 48288
For Respondent: No appearance.
For Intervenors: Richard G. Rumrell, Esquire
3100 Independent Square
Jacksonville, Florida 32202 and
Brent D. Shore, Esquire 1916 Atlantic Boulevard
Jacksonville, Florida 32207
ISSUES
The issues presented herein concern the standing of the Intervenors to challenge the licensure of Caruso Chrysler-Plymouth, Inc., to sell Chrysler- Plymouth automobiles in the State of Florida, particularly in Duval County, Florida. See Section 320.642, Florida Statutes. In considering the standing question, specific attention is given to the meaning of the term "real party in interest" as set forth in Rule 15C-1.08, Florida Administrative Code. 1/
WITNESSES AND EXHIBITS
The following witnesses testified in the course of the proceedings: John
Caruso, President, Caruso Chrysler-Plymouth, Inc.; John McLeod, Dealer Placement Specialist, Orlando, Florida, zone, Chrysler Corporation; Thomas McMenamy of G. T. Automobile Leasing; Michael Gratiano, Jr., school teacher, Sandalwood High School; Paula Bass, customer of Massey Dodge; Charles Cooper, customer of Westside Dodge and owner of Chrysler-Plymouth products and former Chrysler dealer; Robert E. Keel, used car dealer; Ralph Sarotte, Director of Marketing, Planning and Strategy, Chrysler Corporation; John Burnett, President, Massey Dodge; William Shore, President and owner of Westside Dodge; and George Hanlon, Vice President, Rebuilding Services, Inc., which owns two (2) Chrysler- Plymouth dealerships and (1) Dodge dealership. He is also President of River City Chrysler-Plymouth.
Petitioners presented Exhibit 6, brochures related to Chrysler Corporation automobiles.
Intervenors presented a series of exhibits; Intervenors' A is a copy of September 3, 1982, correspondence from Benry Noxtine, Dealer/License Supervisor, Division of Motor Vehicles to John E. Caruso as President of Caruso Chrysler- Plymouth, Inc.; Intervenors' 1, Chrysler Corporation brochures related to automobiles for the 1983 model year (disregard numbers which appear on the face of the brochures, in that these exhibits were taken from the materials Intervenors had Provided in responding to an interlocutory motion by Petitioners to close the Division of Administrative Hearings' file); Intervenors' 5, parts and service catalogs issued or made for Chrysler Corporation for the 1983 model year; Intervenors' 7, photographs taken of charts related to sales made by Westside Dodge, Inc., in Duval County, Florida; Intervenors' 9, statistics compiled by Chrysler Corporation referencing market penetration and dealer productivity in Jacksonville, Florida, and the zone which includes Jacksonville; Intervenors' 10 is constituted of descriptions of various groups and packages and options related to select Chrysler Corporation automobiles and is found as an attachment to the deposition of John R. McLeod, excerpts of which are part of the record of the final hearing; Intervenors 11, an advertising flyer related to select 1980 Chrysler Corporation automobiles; Intervenors' 12, photographs of some of the automobiles which were viewed, depicting offerings by Dodge and Chrysler-Plymouth; Intervenors' 13, January, 1983, NADA used car reference guide for Southeast United States, and Intervenors' 14, Black Book on used specialty vehicles and trucks for December, 1982, national.
(Other exhibits were identified in the Prehearing Stipulation but were not involved in the presentation related to the standing of the Intervenors to challenge the licensure of Caruso Chrysler-Plymouth.)
CASE HISTORY
In August, 1982, Caruso Chrysler-Plymouth, Inc., made application for Florida Motor Vehicle Dealer licenses to sell Chrysler-Plymouth products and Imperial automobiles. This followed Chrysler Corporation's stated intent to grant franchises to Caruso to sell the aforementioned automobiles. 2/ Prior to the preparation of the application, River City Chrysler-Plymouth, Inc., which is located in Jacksonville, Florida, on Cassat Avenue, had made known its intention to protest the licensure of Caruso. Caruso would locate its facility on Southside Boulevard in Jacksonville, Florida. A copy of the application and the protest letter, together with a request that the Division of Administrative Hearings conduct a formal hearing was forwarded to the Director of the Division of Administrative Hearings on September 7, 1982. The Division of Administrative Hearings' file was then opened to consider the request of Petitioners in the face of the challenge by River City Chrysler-Plymouth.
On September 17, 1982, Intervenors filed a direct petition with the Division of Administrative Hearings and a motion to intervene in the ongoing action. This request was honored by order of September 28, 1982, notwithstanding the position of Henry C. Noxtine, Dealer/License Supervisor for the Division of Motor Vehicles, as found in Intervenors' Exhibit A. In that correspondence, which was made known to the Hearing Officer subsequent to the September 28, 1982, order, Noxtine, in correspondence addressed to the President of Caruso and copied to counsel for Intervenors, states "also, letters of protest has (sic] been received by and through its counsel, for Massey Dodge, Inc., 3333 Main Street, Jacksonville, Florida, and Westside Dodge, Inc., 1672 Cassat Avenue, Jacksonville, which will not be considered." Prior to being informed of the contents of the September 3, 1982, correspondence, the Hearing Officer also attempted to ascertain the Division of motor Vehicles' Director's position on the rights of Intervenors. This occurred after September 28, 1982. No change was made as a result of this inquiry. Further treatment of standing was described in the November 16, 1982, order which has been mentioned before.
The November 16, 1982, order was entered in response to a motion to close the Division of Administrative Hearings' file in view of the withdrawal from the action of the original protestant, River City Chrysler-Plymouth. It was determined that the withdrawal did not prejudice the rights of the Intervenors. In particular, the withdrawal did not bar the Intervenors' rights to seek consideration of their opposition to the licensure of Caruso Chrysler-Plymouth. The latter portion of the order identified how those claims of Intervenors would be addressed.
Ultimately, a final hearing was held on January 10, 1983, leading to a ruling on the record that Intervenors did not have the requisite standing to challenge the licensure of Caruso to sell Chrysler-Plymouth automobiles in Jacksonville, Florida, as augmented by this Recommended Order.
FINDINGS OF FACT
John E. Caruso, owner of the applicant, Caruso Chrysler-Plymouth, Inc., is also the owner of Regency Dodge. The Dodge dealership sells Dodge cars and trucks and services Chrysler products at a location which is approximately one
(1) mile from the location of the proposed Caruso Chrysler-Plymouth dealership. Caruso is also part owner of a Dodge, AMC and Renault car store in Green Cove Springs, Florida, Caruso Motors. John Caruso has operational responsibility for Regency Dodge and would have some managerial involvement with Caruso Chrysler- Plymouth. We is not involved in the management of Caruso Motors. Caruso motors
and the other automobile dealers in Green Cove make a substantial number of automobile sales in Duval County, Florida, the county in which Regency Dodge and the proposed dealership are to be found. Both Regency and Caruso Chrysler- Plymouth would be in the immediate vicinity of the shopping center known as Regency Square and are both found on the south side of Jacksonville, Florida, also referred to as east Jacksonville.
In the past, Chrysler-Plymouth sales have been made from a location which was one block away from the present location of Regency Dodge. That store has closed, and there has been no dealership in that location in the last three years.
There was also a Chrysler-Plymouth dealership on Phillips Highway on the south side of Jacksonville until February, 1982, when that organization went out of business. At present, the only Chrysler-Plymouth dealership in Jacksonville, Florida, is River City Chrysler-Plymouth which is on the west side of Jacksonville, Florida, on Cassat Avenue.
In 1982, of the approximately 1,000 sales of Dodge products made from Regency Dodge, 600 of those were fleet sales.
Regency Dodge does warranty work on Chrysler-Plymouth automobiles as well as Dodge. Chrysler's treatment of warranty claims on all automobiles is uniform. Regency Dodge and other Dodge dealers are required to do warranty work on Dodge products and may do warranty work on Chrysler-Plymouth products at their option.
Presently, there are three Dodge dealerships in Duval County, Florida, which are constituted of Regency Dodge and the two Intervenors. Ideally, Chrysler Corporation feels that the best balance would be to have two Dodge dealers and two Chrysler-Plymouth dealers in Duval County, Florida, or Jacksonville, which is essentially the same market area. This is borne out by excerpts of a document dealing with prognostication by Chrysler Corporation on the subject of automobile sales in Jacksonville, Florida, found as a part of Intervenors' Exhibit No. 9.
Realization of the marketing goals of Chrysler Corporation in the Orlando, Florida, zone, of which Jacksonville is a part, is discussed in the excerpted portions of the deposition of John R. McLeod taken on January 6, 1983. This deposition is being transmitted with the Recommended Order and the excerpts are fully identified in the transcript of the hearing. As the excerpted testimony in the deposition points out, should Massey Dodge, which is located on Main Street in North Jacksonville, Florida go out of business, at that location, it is not the intention of Chrysler Corporation to open up another Dodge dealership at that location. In that same deposition, McLeod establishes that, with the exception of the Caruso arrangement, there are no Dodge and Chrysler- Plymouth dealerships owned by the same individual within the Orlando zone. McLeod identifies in his deposition that the idea of having two Chrysler- Plymouth and two Dodge dealers in Jacksonville, is premised upon information from industry registrations of automobiles and other basic factors involved in the analysis of the metropolitan market. This did not include a survey of the general public. Finally, McLeod indicated that Chrysler Corporation felt that it needed a Chrysler-Plymouth dealership on the east side of Jacksonville, which would include the Regency area, an area also referred to as southside. This led to Chrysler offering Caruso the opportunity to be Chrysler's dealer.
Intervenors' Exhibit 10, which is an attachment to the McLeod deposition, demonstrates the interchangeability of parts for Plymouth Reliant and Dodge Aries; Chrysler Cordoba and Dodge Mirada, and Plymouth Turismo/Horizon and Dodge Charger/Omni. These vehicles are manufactured in the same facility.
Thomas McMenamy works for a car leasing firm in Jacksonville, Florida, and indicated the similarity between Chrysler K-Cars and Dodge Sportsman and Plymouth Voyagers in his efforts to satisfy lease customers.
Michael Gratiano, Jr., a local teacher in Jacksonville, Florida, is the owner of a 1981, Ram Charger, a vehicle he found to be similar to a Plymouth Trail Duster. He also owns a 1982 Dodge 400 Convertible which he purchased from Massey Dodge. Paula Bass bought a 1982 Dodge 400 from Massey Dodge and in her shopping felt that the Dodge 400 and Chrysler LeBaron were similar automobiles.
Charles Coopers who was a Chrysler Corporation dealer from 1940 through 1950, owns a 1977 Chrysler New Yorker and 1980 Plymouth Volare which he has serviced at Westside Dodge at their Cassat Avenue premises.
Robert E. Keel gave testimony in this hearing. Mr. Keel is a used car dealer in Jacksonville, Florida, and recalls a conversation with John E. Caruso in which Caruso indicated that he might wish to sell Chrysler-Plymouth and Dodge products in the same location, a comment which Caruso denies.
Ralph Sarotte, Chrysler Director of Marketing, Planning and Strategy, gave a break-out of the similarities and dissimilarities between various offerings in the Chrysler Corporation product line. These automobiles are depicted in Intervenors' Exhibit 1 and Petitioners' Exhibit 6. These product lines have formerly been advertised by one firm, an arrangement which is now in transition, with the intention to have a second advertising firm involved, at which point Chrysler-Plymouth products would be advertised by one firm and Dodge products by a second firm. At present, there are some ads that are common to all Chrysler Corporation products, to include comments by the Chairman of the Board of Chrysler Corporation, Lee Iacocca, and advertisements related to financing and warranty matters. There is common advertising for performance Parts for Dodge and Chrysler-Plymouth automobiles. The Colt advertising is a common pursuit for Dodge and Chrysler-Plymouth. The emphasis on the future advertisements of Chrysler Corporation would be that Chrysler-Plymouth products represent value, America's way to get its money's worth and economy. The thrust of the Dodge advertising would depict Dodge as a "driving machine" represented by driving excitement and excellence.
Chrysler Corporation offers subcompact cars which are depicted in Petitioners' Exhibit 6, as are all models to be discussed through this Recommended Order. The subcompact Plymouth is referred to as the Horizon and the Dodge is the Omni. There are approximately six unique parts on these automobiles which have to do with the grill, tail light assembly, and name plates, out of approximately 3,500 parts. A speciality type of automobile within the Horizon and Omni families would be the Plymouth Turismo and Dodge Charger whose principal differences have to do with the facia, tail lamps, name plates and graphics such as tape strips.
Chrysler Corporation sells compact models referred to as the Dodge Aries and Plymouth Reliant which are known as K-Cars of a five or six passenger capacity in two and four door sedans and a five door wagon. The grills, tail lights and name plates of the two automobiles are the unique features.
A more luxurious compact offering by Chrysler Corporation would be the Dodge 400 and Chrysler LeBaron lines which are five and six passenger automobiles. This represents Chrysler Corporation' a contribution to the "middle market" and these automobiles have facia, tail light and body side molding differences with Chrysler automobiles carrying a three to five hundred dollar ($300.00 to $500.00) increase in base unit price. In particular, Dodge offers a two door, four door and convertible version of its 400 series.
Chrysler offers a two door, four door, basic convertible and Mark Cross designer series convertible, a town and country wagon and a town and country convertible. The latter three models have no Dodge counterpart.
Chrysler Corporation intends to market, as a 1983 1/2 model, an automobile known as a Shelby Charger which is a unique product offered through Dodge affiliates. Its body appearance, wheels and tires and engine are distinguishing features of this automobile.
In the front-wheel drive line, in the up-market automobiles, Dodge sells a 600 series to include the 600-ES. In the same market, Chrysler offers the E-Class automobile. Basically, there are differences in the appearances of these automobiles related to the front end, tail lights, name plates and fender designs. Also Dodge 600-ES has a unique transmission/engine combination offering a five speed transaxle. Moreover, it has unique exterior graphics, hood ornament and road wheels. Chrysler, in its E-Class automobiles, intends to offer a Chrysler New Yorker and Executive Sedan as 1983 1/2 models in addition to its current E-Class sedan. There are no comparable Dodge models to the New Yorker or Executive Sedan. The New Yorker has a landau roof treatment, special instrument panel and trim and name plate differences. The Executive Sedan has extended wheel base differences when compared to the Dodge line and offers greater seating capacity. The roof, doors and quarter panels and interior are also unique.
Chrysler Corporation offers two cars in the mid-specialty line which are rear wheel drive cars. They are the Chrysler Cordoba and Dodge Mirada whose principal differences are the front end design, tail lights, roof adornment, wheels, tires and instruments.
Chrysler Corporation offers rear wheel drive mid-price cars. The Dodge Diplomat is offered in two price classes known as the Salon and Medallion. A Plymouth Gran Fury is sold as a Salon, but not as a Medallion. A third model is the New Yorker Fifth Avenue which is unique to the Chrysler-Plymouth line.
Dodge is the truck division of Chrysler Corporation. It is the intent of Chrysler Corporation to sell trucks only through its Dodge affiliates. In 1983, Chrysler-Plymouth dealers will only be able to sell 1982 Voyaoers and Arrow Pick-ups which are found at the dealers and 1983 Voyagers. In 1984, the Voyager truck line will be discontinued at Chrysler-Plymouth dealerships.
Chrysler Corporation merchandises automobiles, with a utility feature which are sold as cars and known as Plymouth Scamps and Dodge Rampages. There are minimal differences in these vehicles and those differences are of the types described in its Turismo and Charger.
Chrysler Corporation markets import models from Mitsubishi Motors Corporation, a Japanese manufacturer. These are two and four door automobiles whose sole differences are designations which indicate that they are imported for sale by Dodge or Plymouth. These automobiles are known as Colts, and are subcompacts.
Chrysler Corporation also offers the Mitsubishi automobiles known as Sapporo and Challenger which are rear wheel drive automobiles whose differences relate to grill and tail light and interior appointments. The Challenger is a Dodge product and the Sapporo a Plymouth product.
In 1984, Chrysler Corporation will offer sport automobiles known as G- 24s in both the Dodge and Chrysler-Plymouth line to compete with General Motors' Pontiac Firebird, Chevrolet Camaros, and Ford Mustangs. Dodge will offer an individual performance model known as the Turbo Z which will not be available in the Chrysler-Plymouth line. The Chrysler-Plymouth version will be offered with electronic instrumentation which is unique.
In 1984, the T-115 series station wagon will be offered by both Dodge and Plymouth and a Dodge van version of that automobile will be offered.
Loan values for the similar product lines in the Chrysler Corporation line are the same.
Presently, the marketing and sales functions of Dodge and Chrysler- Plymouth are separate groups. Product development of the corporation is not a separate function between the two lines; however, it is intended that these two lines compete with each other.
Reliant is the best selling Chrysler-Plymouth product and the Aries is the best selling Dodge product.
John Burnett, the President of Massey Dodge, pointed out that twenty Percent (20 percent) of the sales of his company are in the southside area where Caruso would locate his dealership. The north side of Jacksonville is the main sales area. The Massey dealership can and does work on all Chrysler Corporation products with the exception of Imperial and the information related to all warranty work is sent to the same zone or same location in Detroit, Michigan. The dealership has experienced decreased sales in 1902, as compared to 1981, which has been an industry experience and its officials have been counseled to increase its minimum sales responsibility in 1982. This relates to the Chrysler Corporation's expectations on the number of units sold by its dealer. The dealership at Massey sells sixty percent (60 percent) used cars and half of its new car sales relate to Dodge trucks.
William Shore, the President and owner of Westside Dodge, who has been in the car business for thirty-two years, established that approximately twenty percent (20 percent) of his automobile sales are in the southside area which would be the area in which Caruso would be opening its business to sell Chrysler-Plymouths. In 1982, Westside sold 234 Colts and Challengers, 154 Aries Ks, and 86 Omnis, to include Chargers and 71 Dodge 400s, up to the month of December for a total of 545 units and for the total year sold 597 new units.
Relating again to automobile sales by Westside, 464 trucks were sold by Westside in 1982, out of a total of 1,061 sales. In 1981, 808 cars out of 1,215 sales were recorded; in 1980, 533 cars out of 983 sales were recorded and in 1979, 487 cars and 344 trucks were sold.
The opening of the Caruso Chrysler-Plymouth dealership is felt by Shore to be a negative influence on the sale of its K and Colt cars. Moreover, the close proximity of the existing Regency Dodge and applicant Caruso Chrysler-
Plymouth would promote a competitive advantage related to service, parts, body work and sale of new and used cars, as shown by Shore's testimony.
Ninety-five percent (95 percent) of Westside sales are in Duval County with five percent (5 percent) out of the county. Within the ninety-five percent (95 percent) in Jacksonville, in addition to the twenty percent (20 percent) sales in southside, ten percent (10 percent) would be in the north side and seventy percent (70 percent) in the west side.
The distance between Westside Dodge and River City Chrysler-Plymouth is approximately 250 to 300 feet on the same side of the street.
George Hanlon, who is a Vice President of Rebuilding Services, Inc., which owns River City Chrysler-Plymouth, and is President of River City, gave testimony. Rebuilding also has a joint dealership in Tallahassee, Florida, which sells Dodge and Chrysler-Plymouths in one location. The availability of Chrysler-Plymouth and Dodge products from the same premises in Tallahassee, Florida, has been an advantage as it relates to overhead in the operation of that business. The Chrysler-Plymouth franchise in that facility is permanent and the Dodge franchise is for a two-year period with the expectation that the Dodge franchise will be relocated in a separate facility in the future.
The Rebuilding Corporation had been involved with Ray Mixon Chrysler- Plymouth on Phillips Highway in Jacksonville, Florida, but that business failed. By way of explanation, Hanlon stated that Rebuilding was unable to successfully run both the Phillips Highway store and the River City operation.
River City sells primarily in Duval County and in Baker County, which latter county is west of Jacksonville and Hanlon feels that the Dodge product line is the primary competition to Chrysler-Plymouth dealerships.
Reference has been made to the utilization of the same facility to construct certain Chrysler Corporation automobiles which are sold as Dodges or Chrysler-Plymouths. In particular, as shown in the response to reguest for admissions made by the Petitioners to the Intervenors, at paragraph 14 of the first request for admissions; 1983 Plymouth Voyagers and 1983 Dodge Ram Wagons; 1983 Dodge Aries and 1983 Plymouth Reliant; 1983 Dodge 400 and 1983 Chrysler LeBaron; 1983 Dodge Challenger and 1983 Plymouth Sapporo; 1983 Dodge Mirada and 1983 Chrysler Cordoba; 1983 Dodge Omni and 1983 Plymouth Horizon; 1983 Dodge 600 and 1983 Chrysler E Class; and 1983 Dodge Rampage and 1983 Plymouth Turismo/Scamp and 1983 Dodge Diplomat and 1983 Plymouth Gran Fury are produced in the same assembly plants. Responses to the second set of admissions made from the Intervenors to Petitioners also connote similarities between various products within these automobiles within the product lines offered by Dodge and Chrysler-Plymouth, of a type previously described.
The request for admissions and responses are transmitted with this Recommended order.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action for the purpose of this Recommended order. See Chapters 120 and 320, Florida Statutes.
Intervenors had offered a substitute Exhibit 7, which has been objected to. Upon consideration of those matters, the substituted Exhibit 7 is accepted as evidence.
Section 320.642, Florida Statutes, is the provision designed to address protests of dealer licensure in Florida. It states:
Dealer licenses in areas previously served.--The department shall deny an application for a motor vehicle dealer license in any community or
territory where the licensee's presently licensed franchised motor
vehicle dealer or dealers have complied with licensee's agreements and are providing adequate representation in the community or territory for such licensee. The burden of proof in showing inadequate representation shall be on the licensee.
An initial question in the license hearing process is whether the protestants, in this case Intervenors, are presently licensed franchised motor vehicle dealers of the licensee/manufacturer, within the meaning of this provision. Clearly, if the Intervenors were selling Chrysler-Plymouth products under a franchise agreement with Chrysler Corporation, they would be entitled to be heard on the merits of this dispute. The more difficult question concerns Intervenors' belief that they are licensed franchise motor vehicle dealers within the meaning of the statutes, based upon the fact that their franchise agreements are with the same manufacturer as that of the applicant, notwithstanding the differences in the franchise agreements related to product name, i.e., Dodge as opposed to Chrysler-Plymouth. In particular, Intervenors urge that similarity of the products within the overall Chrysler Corporation offerings are determining factors in demonstrating that Dodge dealers as well as Chrysler-Plymouth dealers are the "presently licensed franchise motor vehicle dealer or dealers" in the subject community or territory where the applicant would do business.
While Dodge dealers, as well as Chrysler-Plymouth dealers, are "franchised motor vehicle dealers" within the meaning of Subsection 320.27(1)(.c)1., Florida Statutes, and are selling products pursuant to "agreement" as defined in Subsection 320.60(12), Florida Statutes, the "agreements" are distinguishable. The overall goal of Chrysler Corporation is to sell automobiles; however, it pursues this effort through franchise agreements with Dodge dealers and Chrysler-Plymouth dealers and those separate product lines have their own individuality and focus. As a consequence, Dodge dealers cannot be considered as a "presently licensed franchise motor vehicle dealer" of the licensee, on the occasion where Chrysler Corporation has granted a franchise agreement to a Chrysler-Plymouth dealer and that dealer applies for licensure by the State of Florida. There may exist a circumstance in which franchise agreements by a manufacturer or distributor with dealers of different product name could be considered differences in name only and thereby entitle all that licensee's/ manufacturer's dealers of the same community or territory to participate in the hearing, without regard for the product name. The present case is not such a circumstance. Admittedly, there are many similarities between the offerings by Dodge and Chrysler-Plymouth in select automobiles sold. Examples are Omni and Horizon and the Aries and Reliant. Nonetheless, considering the full range of vehicles, especially the fact that Dodge is the
primary truck line for Chrysler Corporation, and the market strategy differences in Dodqe and Chrysler-Plymouth, the two lines are distinguishable in substance. Consequently, Dodge dealers may not protest the grant of a Chrysler-Plymouth license.
To further effect the purposes of the license process under Chapter 320, Florida Statutes, and to address the matter of dealer protest, Rule 15C- 1.08, Florida Administrative Code, was enacted. Its language is as follows:
PRELIMINARY FILING OF AN APPLICATION FOR A MOTOR VEHICLE DEALER'S LICENSE;
PROCEDURE. Any person who contemplates the establishment of a motor vehicle business for the purpose of selling new motor vehicles, for which a franchise from the manufacturer, distributor or importer thereof is required, shall, in advance of
acquiring building and facilities necessary for such an establishment, notify
the director of the Division of Motor Vehicles of his intention to establish such motor vehicle business. Such notice shall be in the form of a preliminary filing of his application for license
and shall be accompanied by a copy of any proposed franchise agreement with, or letter of intent to orant a franchise from, the manufacturer, distributor or importer, showing the make of vehicle or vehicles included in the franchise; location of the proposed business; the name or names of
any other dealer or dealers in the surrounding trade areas, community or territory who are presently franchised to sell the same make or makes of motor vehicles.
Upon receipt of such notice the Director shall be authorized to proceed with making
the determination required by Section 320.642,
Florida Statutes, and shall cause a notice to be sent to the presently licensed franchised dealers for the same make or makes of vehicles in the territory or community in which the new dealership proposes to locate, advising such dealers of the provisions of Section 320.642, Florida Statutes, and giving them and all real parties in interest an opportunity to be heard on the matters specified in that Section. Such notice need not be given to any presently licensed franchised dealer
who has stated in writing that he will not protest the establishment of a new dealership which will deal in the make or makes
of vehicles to be included in the proposed franchise in the territory or community
in which the new dealership proposes to locate. Any such statement or letters of no protest shall have been issued not more than three months before the date of
filing of the preliminary application. The Director may make such further investigation and hold such hearing as he deems
necessary to determine the questions specified under Section 320.642. A determination so made by the Director shall be effective as to such license for a period of twelve (12) months from the date of the Director's Order, or date of final judicial determination in the event of an appeal, unless for good cause a different period
is set by the Director in his order of determination.
This rule comports with the interpretation of Section 320.642, Florida Statutes, which has been given in this Recommended Order, in that "licensed franchise motor vehicle dealer" generally means franchise dealers for the same "make or makes" of vehicles. The rule, as does the statute, leaves open the remote possibility that dealers other than the same "make or makes" might have an opportunity to be heard on the dealer license question, if they are "real parties in interest." To be a "real party in interest" the protesting dealer, though not selling the same make within the manufacturer/distributor's product line must sell a product manufactured by the licensee/ manufacturer which is so similar, that the distinction within the product lines between the "make" of the applicant and that of the protestant, though different in name, are synonymous. That is not the case when considering applications for Chrysler-Plymouth dealer licenses and protests by Dodge dealers. Therefore, a Dodge dealer protestant is not the same "make" as a Chrysler-Plymouth dealer applicant for license, nor is the Dodge dealer a "real party in interest" in the process of licensure of a Chrysler-Plymouth dealer in Florida. The distinctions between Dodge and Chrysler-Plymouth franchises are many. They are pointed out in the course of the Findings of Fact herein, and relate to differences in product and marketing emphasis.
This reading of Section 320.642, Florida Statutes, and Rule 15C-1.08, Florida Administrative Code, is borne out by an interlocutory order of the Director of the Division of Motor Vehicles. See General Motors Corporation, GMC Truck and Coach Division, and Ross Chevrolet, Inc. v. Hunt Truck Sales and Services, Inc., and State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, DOAH 80-1265. In that December 15, 1980, order, the Director reversed a Recommended Order of the Hearing Officer on the question of a summary determination of subject matter jurisdiction. The Hearing Officer had concluded as a matter of law that the Department was without jurisdiction to require a hearing to determine the entitlement of Ross Chevrolet, Inc. to be granted a Florida license to sell GMC heavy duty trucks, in that the GMC franchise was being offered in substitution of the discontinued Chevrolet heavy duty truck line and its attendant franchise, and was in effect a substitution of the same product under a different name. According to the Hearing Officer, this did not constitute the licensure of a new dealer point.
It was the placement of a substitute dealer at the same dealer point. This recommendation was premised upon the similarity of GMC heavy duty trucks and Chevrolet heavy duty trucks, more restrictive product lines than the offerings by Dodge and Chrysler-Plymouth dealerships and on the whole, more similar in
nature than the Dodge and Chrysler-Plymouth motor vehicles. The Director reversed on the conclusions of law on subject matter jurisdiction and remanded the case for consideration on the merits. In doing so, he stated that the position of the Hearing Officer would not afford Hunt, the Ross competitor, opportunity for hearing in protesting the grant of a license to sell the same make as Hunt was selling. Additionally, the Director indicated, in pertinent part, that he did not agree with the Hearing Officer that GMC heavy duty trucks and Chevrolet heavy duty trucks were the same product. Consequently, the substitution of the similar GMC franchise for a discontinued Chevrolet franchise was not the substitution of the same "sake," ergo, Dodge automobiles are not the same "make" as Chrysler-Plymouth automobiles. See Southside Motor Co. Askew, etc., 332 So.2d 613 (Fla. 1976)
In reaching the conclusions of law on the standing question, the Hearing Officer is not unmindful of the standing requirements announced in Section 120.57, Florida Statutes, dealing with "substantial interests of a party" and the discussion of "zone of interest" set forth in Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). While it is agreed that the Intervenors will suffer injury in fact which is by its character of sufficient immediacy to convene a Subsection 120.57, Florida Statutes, hearing, the license process of Section 320.642, Florida Statutes, is not designed to protect the type or nature of substantial interest which Intervenors assert and the administrative hearings need not be convened to determine the protests of the Intervenors in substance. They are not within the "zone of interest" protected by the statute.
It is recognized that Section 320.642, Florida Statutes, was designed to prevent manufacturers from gaining unfair advantage over their operational dealers by overloading the market area where existing dealers do business by placing new franchisees: however, this idea must exist with the realization of the basic anti-competitive thrust of that license provision. A reading of that provision which would tend to overly enhance this anti-competitive quality in the name of dealer protection, would not be a correct statutory interpretation. To allow every franchisee within the purview of the licensee/manufacturer to protest a new dealer's licensure, without regard for whether it is the same "make" or sufficiently similar to be considered the same, premised solely on the commonality of manufacturer would be outside the scope of the regulatory statement.
It is, therefore, RECOMMENDED:
That a final order he entered which dismisses the claims of the Intervenors based upon lack of standing and grants the dealer license to the Petitioner, Caruso.
DONE and ENTERED this 2nd day of February, 1983, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 2nd day of February, 1983.
ENDNOTE
1/ This treatment of the case is made in keeping with the November 16, 1982, order of the undersigned requiring the Intervenors to demonstrate their standing before considering the merits of the entitlement of Caruse to be licensed to see Chrysler-Plymouth automobiles and the rules announced on the record that standing had not been shown. The written recommendation is entered to comply with the requirements of Subsection 120.57(1), Florida Statutes, and the assist the parties and agency head in understanding the reasoning behind the prior decision on the standing questions. The November 16, 1982, order is attached as Exhibit "A" to this Recommended Order for references purposes.
COPIES FURNISHED:
Gerald W. Meedon, Esquire Post Office Box 447 Jacksonville, Florida 32201
Allan M. Huss, Esquire Office of General Counsel Chrysler Corporation
Post Office Box 1919 Detroit, Michigan 48288
Richard G. Rumrell, Esquire 3100 Independent Square
Jacksonville, Florida 32202
Brend D. Shore, Esquire 1916 Atlantic Boulevard
Jacksonville, Florida 32207
Judson Chapman, Esquire Department of Highway Safety
and Motor Vehicles
The Neil Kirkman Building Tallahassee, Florida 32301
Charles Brantley, Director Division of Motor Vehicles Department of Highway Safety
and Motor Vehicles
The Neil Kirkman Building Tallahassee, Florida 32301
Exhibit A
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRYSLER CORPORATION AND CARUSO ) CHRYSLER-PLYMOUTH, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-2481
) STATE OF FLORIDA, DEPARTMENT OF ) HIGHWAY SAFETY AN MOTOR VEHICLES, ) DIVISION OF MOTOR VEHICLES, )
)
Respondent, )
and )
)
MASSEY DODGE, INC., AND )
WESTSIDE DODGE, INC., )
)
Intervenors. )
)
ORDER
Petitioners have moved to close the Division of Administrative Hearings' file and to cancel the upcoming final hearing. The Intervenors have replied to the motion.
To determine the outcome of this motion, it is first necessary to decide whether the withdrawal of the Respondent, River City Chrysler-Plymouth, Inc., the original protestant by Petition, forecloses any consideration of the Intervenors' claims advanced by their motion and Petition-in-Intervention. If the Intervenors' claims are not automatically barred by the withdrawal from the action of the protestant, then a decision must be reached on the method to be utilized in considering the claims of the Intervenors.
After considering the argument of counsel, it is concluded that the Intervenors' cause of action did not vanish with the withdrawal of the Respondent, River City. In effect, the Intervenors have now become the protestants by Petition for a formal Subsection 120.57(1), Florida Statutes, hearing, in keeping with a motion reguesting intervention, which included substantive allegations.
This dispute as it is now constituted will be dealt with by addressing the question of the Intervenors' claim of standing by allowing the Intervenors to prove, by an evidential presentation that they are indeed "real parties in interest" who are allowed to oppose the grant of the license requested by Caruso Chrysler-Plymouth, Inc. If this showing is satisfactorily made, then the matter shall proceed to a hearing on the question of Petitioners' request that Caruso be granted a license by the State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. Counsel should be prepared to argue
the question of standing following the opportunity for evidential presentation on that issue at the beginning of the final hearing and it is the Hearing Officer's intention to rule on that issue following the evidential presentation and oral argument. If standing is not proven, an order recommending dismissal of the protest claim and grant of the license would be made. If the standing is shown, then the hearing shall go forward on the basis of proof related to Caruso's entitlement to be licensed in keeping with the criteria set forth in Section 320.642, Florida Statutes, with a recommended order being entered upon consideration of the facts related to the licensure question in substance.
Finally, should counsel for the parties confer and agree, the evidence related to the standing question could be considered following a presentation, in Tallahassee, Florida, prior to the presently scheduled date for hearing or upon stipulated facts, otherwise the decision shall be made at the time of final hearing.
DONE and ENTERED this 16th day of November, 1982, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 16th day of November, 1982.
COPIES FURNISHED:
Delbridge L. Gibbs, Esquire Gerald W. Weedon, Esquire Post Office Box 447 Jacksonville, Florida 32201
Chrysler Corporation Post Office Box 847 Chrysler Center Detroit, Michigan 48288
Richard G. Rumrell, Esquire Harry R. Detwiler, Jr., Esquire 3100 Independent Square
Jacksonville, Florida 32202
Brent D. Shore, Esquire 1916 Atlantic Boulevard
Jacksonville, Florida 32207
Judson Chapman, Esquire Department of Highway Safety
and Motor Vehicles
The Neil Kirkman Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 05, 1983 | Final Order filed. |
| Feb. 02, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 03, 1983 | Agency Final Order | |
| Feb. 02, 1983 | Recommended Order | Intervenors lack standing to challenge issuance of dealer license to Petitioner. Dismiss complaints and grant license. |
