STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

FERMAN OLDSMOBILE OF BRANDON, INC.) and GENERAL MOTORS CORPORATION, )

)

Petitioners, )

vs. ) CASE No. 90-8108

) BOB SAPP OLDSMOBILE-GMC, INC. and ) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a hearing to consider Petitioner, General Motors Corporation's (GM) motion to dismiss Respondent, Bob Sapp Oldsmobile-GMC, Inc. petition/complaint, in Tallahassee, Florida.

APPEARANCES

For Petitioner Dean Bunch, Esquire GMC: CABANISS BURKE & WAGNER

851 East Park Avenue Tallahassee, Florida 32301

and

Edward Risko, Esquire General Motors Corporation Office of General Counsel New Center One Building 3031 West Grand Boulevard Detroit, Michigan 48202

For Respondent Daniel Myers, Esquire and Bob Sapp Walter E. Forehand, Esquire

Oldsmobile: 402 North Office Plaza Drive

Suite B

Tallahassee, Florida 32301 PRELIMINARY STATEMENT

This case involves the proposed establishment of an additional dealer representative of General Motors Corporation/Oldsmobile Division in Brandon, Hillsborough County, Florida. Upon advertisement of the intention to establish this dealership in the Florida Administrative Weekly, an existing Oldsmobile dealer, Bob Sapp Oldsmobile-GMC, Inc. ("Sapp") filed a timely protest pursuant to Section 320.642, Florida Statutes (1989). Pursuant to Rules 22I-6.004(5), 6.033(1) and 6.024,

Florida Administrative Code, Petitioner, General Motors Corporation (GM) moved to dismiss Sapp's petition/complaint on grounds that Sapp had contractually waived its right to protest the establishment of the proposed new dealership. Sapp filed a written response in opposition to the motion and oral argument was thereafter held. Both Sapp and GM have filed proposed recommended orders of dismissal which are substantially incorporated herein.

Undisputed Facts

The following facts relevant to the decision herein

were presented by the parties in their written documents and in argument and are undisputed.

1. In 1988, Sapp protested the establishment of additional Oldsmobile representation in Brandon, Florida; the proposed new dealer was Crystal Oldsmobile Company, Inc. (DOAH Case No. 88-1166 [Final Order October 7, 1988]). Crystal's name was changed to Ferman Oldsmobile of Brandon, Inc., the present proposed dealer. During the course of that litigation, however Sapp and GM reached a settlement, the terms of which are embodied in a written agreement.

   
   

2. The settlement agreement provided, in part, that:

   
   

   GM agrees, at such time as the decision is made, to appoint the next additional Oldsmobile dealer in Hillsborough County, that Bob Sapp, or a corporation to be formed in which he has a majority interest, will be appointed, subject to the terms of this agreement.

   
   

3. In exchange, Sapp agreed to the following:

   
   

   Within three days after the execution of this agreement, Bob Sapp agrees to file a notice of dismissal with prejudice in the pending litigation, withdrawing its claim to a hearing in that matter, and to execute any other document necessary to withdraw its protest to the establishment of an additional Oldsmobile Dealership in the vicinity of Brandon, Hillsborough County, Florida.

   
   

4. Sapp dismissed the former protest with prejudice. However, Ferman did not immediately commence construction of dealership facilities. In November 1990, GM again notified the Department of Highway Safety and Motor Vehicles of GM's intention to establish the Oldsmobile dealership in Brandon. Sapp thereafter filed the instant protest.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action, pursuant to Section 120.57(1), Florida Statutes.

   
   

6. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

   
   

7. The authority of the Respondent, Department of Highway Safety and Motor Vehicles is derived from Chapter 320, Florida Statutes.

   
   

8. The issue for determination here is whether Sapp contractually waived its right to protest the establishment of the present dealership by the 1988 settlement agreement. A general waiver which extends to future plans of a manufacturer of additional representation in an area binds a party with respect to its right to protest under Section 320.642, Florida Statutes. See, Chrysler Corporation v. Brandon Chrysler-Plymouth, Inc., DHSMV Case No. 85-33, DOAH Case No. 84-1239, aff'd per curiam, 494 So.2d 1154 (Fla. 2d DCA 1986).

   
   

9. The language in paragraph 2 of the settlement agreement specifically, states:

Bob Sapp agrees to file a notice of dismissal with prejudice in the pending litigation, withdrawing its claim to a hearing in that matter, and to execute any other document necessary to withdraw its protest to the establishment of an additional Oldsmobile Dealership in the vicinity of Brandon, Hillsborough County, Florida,

constitutes a waiver sufficient to meet the standards of Chrysler Corp., supra.

RECOMMENDATION

Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. Respondent, Department of Highway Safety and Motor Vehicles, enter a Final Order dismissing Bob Sapp's Oldsmobile- GMC, Inc. petition/complaint in protest of the establishment of the proposed new dealership.

   
   

2. Respondent, Department of Highway Safety and Motor Vehicles grant to Petitioner, Ferman Oldsmobile of Brandon, Inc., a license to operate an Oldsmobile dealership in Brandon, Hillsborough County, Florida upon compliance with other licensing requirements as required by Respondent, Department of Highway Safety and Motor Vehicles.

DONE and ENTERED this 26th day of February, 1992, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26 day of February, 1992.

COPIES FURNISHED:

DEAN BUNCH ESQ

CABANISS BURKE & WAGNER 851 E PARK AVE TALLAHASSEE FL 32301

EDWARD RISKO ESQ

GENERAL MOTORS CORPORATION OFFICE OF GENERAL COUNSEL NEW CENTER ONE BLDG

3031 W GRAND BLVD DETROIT MI 48202

DANIEL MYERS ESQ WALTER E FOREHAND ESQ MYERS AND FOREHAND

402 N OFFICE PLAZA DR - STE B TALLAHASSEE FL 32301

MICHAEL J ALDERMAN ESQ ASST GENERAL COUNSEL

DEPT OF HIGHWAY SAFETY & MOTOR VEHICLES A432 NEIL KIRKMAN BLDG

TALLAHASSEE FL 32399 0500

ENOCH JON WHITNEY ESQ GENERAL COUNSEL

DEPT OF HIGHWAY SAFETY & MOTOR VEHICLES NEIL KIRKMAN BLDG

TALLAHASSEE FL 32399 0500

CHARLES J BRANTLEY-DIRECTOR DIVISION OF MOTOR VEHICLES

DEPT OF HIGHWAY SAFETY & MOTOR VEHICLES NEIL KIRKMAN BLDG

TALLAHASSEE FL 32399 0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-008108

Orders for Case No: 90-008108