STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUS MACHADO BUICK-GMC, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-1997

) GENERAL MOTORS CORPORATION, ) BUICK AND GMC TRUCK DIVISIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on August 29 - 30, and November 7, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Craig Edward Stein, Esquire

Fine, Jacobson, Schwartz, Nash Block & England

100 Southeast 2nd Street Miami, Florida 33131

and

James D. Adams, Esquire 7300 West Camino Real

Boca Raton, Florida 33433-9984

For Respondent: Edward W. Risko, Esquire

Office the of the General Counsel General Motors Corporation

3031 West Grand Boulevard Detroit, Michigan 48202

and

Dean Bunch, Esquire

Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301

PRELIMINARY STATEMENT

This matter began when the Buick and GMC Truck Divisions of General Motors Corporation sent Gus Machado Buick-GMC, Inc., a notice on March 7, 1991, that Machado's Dealer Sales and Service Agreements were being terminated because the dealership had ceased to operate for more than ten business days. Mr. Machado then filed a petition to contest that termination with the Florida Department of Highway Safety and Motor Vehicles. General Motors moved to dismiss the petition as untimely, and an Order Denying the Motion to Dismiss and Requiring a More Definite Statement from Machado was entered on April 25, 1991. Buick sought

review of the denial of its motion to dismiss in the District Court of Appeal, First District. The Petition for Review of Non-Final Administrative Action was denied on June 12, 1991. General Motors Corporation, Buick and GMC Truck Divisions vs. Gus Machado Buick-GMC, Inc., 581 So.2d 637 (Fla. 1st DCA 1991).

The matter was set for hearing in August 1991. Before the hearing began Mr. Machado sought to abate this action, arguing that an acquisition agreement which Mr. Machado had entered into with Alan Potamkin for the purchase of the Buick and GMC franchises required abatement of the action under Section 320.643(1), Florida Statutes. The motion was denied on August 1, 1991. Mr. Machado thereafter sought a continuance of the hearing on the grounds that the testimony of two of its witnesses could not be taken at the time set for hearing. It was arranged that the testimony of Mr. Potamkin would be taken by telephone, and that written testimony of Mr. Argiz would be filed, after which time Buick would determine whether it wished to cross examine Mr. Argiz in person. Buick determined that it did wish to cross examine Mr. Argiz and that hearing reconvened on November 7, 1991. Mr. Machado renewed its Motion to Stay the Proceeding, which was again denied in an Order Denying Renewed Motion of Gus Machado Buick-GMC Truck, Inc., to Stay Proceeding entered on December 10, 1991; a Motion For Reconsideration of that order which Mr. Machado filed on December 17, 1991, was denied on December 20, 1991. That order also received in evidence a letter which had been attached to Machado's Motion For Rehearing. The parties submitted proposed recommended orders by December 27, 1991. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

STATEMENT OF THE ISSUES

The issue is whether the Dealer Sales and Service Agreement which Gus Machado Buick-GMC, Inc., has with Buick and GMC Truck Divisions of General Motors Corporation may be terminated by General Motors for abandonment under Section 320.641, Florida Statutes (1989), because Machado Buick failed to engage in business for more than ten consecutive business days.

FINDINGS OF FACT

1. Gus Machado is a Cuban-American. He purchased a Buick-GMC Truck dealership formerly known as Seipp Buick in Hialeah on March 3, 1982, after Mr. Machado had been in the automobile business for more than 30 years. The purchase price for the dealership, including the 6.25 acres of real estate on which the dealership was located, was about $4.5 million, $3 million of which was financed. The loan was secured by a mortgage on the dealership's real estate.

   
   

2. Shortly after Mr. Machado purchased the dealership, he transferred the ownership of the real estate to himself, and leased it back to the dealership entity known as Gus Machado Buick-GMC, Inc., of which Mr. Machado is the sole shareholder. When he did this, General Motors told Mr. Machado that it regarded the rent to be charged to the dealership as excessive, but Mr. Machado believed that the rental payments were set in the amount which the dealership could pay given his projected sales volume.

   
   

3. Mr. Machado was the only Hispanic dealer for the Buick Division in Dade County, Florida. The City of Hialeah is overwhelmingly Hispanic. The staff of the dealership was about 80 percent Hispanic. Mr. Machado focused his marketing efforts on Hispanic customers.

   
   

4. The dealership's sales volume increased from about $19 million fiscal in year 1982, to $26 million in fiscal year 1983, the first full year Mr.

   Machado owed the dealership, to as much as $36 million dollars in later years. Buick recognized Mr. Machado's achievements in the sale of Buick motor cars by designating him the No. 1 Hispanic dealer in the country for a number of years.

   
   

5. From 1983 to 1985, the dealership was profitable, and that profit enabled Mr. Machado to purchase a $2 million home in 1985 in an exclusive area. He renovated it from 1985 to 1990 at a substantial cost (about $7 million dollars) which Mr. Machado paid for with cash from his personal funds. 1/

   
   

6. Profitable times continued through the 1987-1988 models years. In 1987 Mr. Machado refinanced the dealership real estate for $4 million, which increased the amount of the mortgage on the property by $1 million. He then distributed that cash to his various companies, which included 1) a separate Ford dealership also located in Hialeah, Florida, 2) a Budget Rental Car day rental business in Puerto Rico, and 3) a long-term automobile leasing business in Puerto Rico. In 1987, Mr. Machado received a $1,306,000.00 dividend distribution from Gus Machado Buick-GMC. Mr. Machado received no salary from Gus Machado Buick-GMC in 1987, but he did receive the annual rental payments from the dealership over and above the dividend distribution and the $1 million obtained from refinancing the real property on which the Buick-GMC Truck dealership was located. After the increase in the mortgage obligation, Gus Machado Buick-GMC Truck paid $107,100.00 in rent to Mr. Machado, in addition to repayment of the mortgage, taxes, insurance, and repairs on the property.

   
   

7. The automobile business is inherently cyclical, and sales of cars from the Buick-GMC Truck franchise began to fall off in the 1988 model year and matters became worse in 1989. At the same time, Buick generally lost market share in 1989 and 1990. This difficult period coincided with the closure of several General Motors dealerships in Dade County. The evidence is insufficient to demonstrate exactly why any one of those dealerships failed. The relative increase in popularity of foreign, especially Japanese, automobiles may have played some part in their financial difficulties. Too little is known of their management to make any finding about whether those failures resulted from poor management, poor times for the automobile industry as a whole, problems with the design, engineering, sales or service of General Motors automobiles, or some combination of all of these factors.

   
   

8. Mr. Machado also had an unusual problem because of his Hispanic market. The fall of communist regimes in Europe led many Hispanics to believe the downfall of Castro was imminent. They became inclined to save money to invest in a new free market in Cuba. This also depressed sales of new cars and trucks to some degree. The extent of lost sales due to these beliefs was not, and probably could not be quantified.

   
   

9. During this period of decline, Mr. Machado came to believe that it would be an advantage to add another line of automobiles to his dealership. Multiple point dealerships were becoming more common, and his dealership was large (6.25 acres) and could handle another line. He sought the assistance of the Buick Division in adding another franchise to his dealership. Mr. Machado also attempted to reduce his inventory, labor and advertising expenses in an effort to control costs.

   
   

10. Mr. Machado's problems were greatly compounded when he discovered, in 1989, that his two Puerto Rican companies were in serious financial difficulty as the result of mismanagement. Mr. Machado had not been deeply involved in their day-to-day management. One of the problems in Puerto Rico was that vehicles in the lease fleets were being disposed of "out-of-trust," which meant

    that automobiles for which Mr. Machado had received financing through General Motors Acceptance Corporation were being disposed of at retail without repayment of their financed purchase price. In the automobile industry, this is regarded as a serious breach on the part of the borrower in his dealings with his financing source. The total outstanding obligations for the two Puerto Rican businesses exceeded $12 million.

    
    

11. The magnitude of the Puerto Rican losses required that these businesses become the focus of attention by Mr. Machado. From July 1989 to November of 1990, he began to devote the greatest portion of his time to management of those distressed companies by spending four days of each week in Puerto Rico.

    
    

12. Mr. Machado's management efforts were rather successful. Ultimately, the two Puerto Rican companies were sold or liquidated, and at that time the debt owed to GMAC for the Puerto Rican operations had been reduced from $12 million to $2 million.

    
    

13. While Mr. Machado devoted most of his attention to his Puerto Rican businesses, the responsibility for the day-to-day operation of the Buick-GMC dealership in Hialeah was left to Mr. Machado's wife, who had worked in real estate, but never in the automobile business, and the senior employees at the Buick-GMC Truck dealership.

    
    

14. The operation of a new car dealership is quite complex. A dealership contains five distinct profit centers, new vehicle sales, used vehicle sales, parts sales, vehicle service, and finance and insurance. One of the most difficult aspects of the management of a new car dealership is maintaining adequate cash flow. For example, a dealership does not realize its profit immediately after performing warranty work on a vehicle or upon the sale of a car. Through billing cycles the profit may not show up on the books for some time. Having adequate working capital is necessary so that the dealership is able to pay its obligations as they mature, even though when comparing total assets to total liabilities, the dealership may be solvent.

    
    

15. Mrs. Machado did attend a 30 day dealership management course, but that course is not one designed to qualify a person to manage a dealership, rather it is designed by General Motors to provide family members of a dealer with an introduction to dealership management. That training, plus active participation in dealership management, may ultimately qualify that family member, such as a daughter or son, to take over a dealership. It was too limited to give Mrs. Machado the training, or especially the experience, to lead the dealership through a trough in the automobile sale cycle. Mrs. Machado did have the assistance of the dealership's general manager, comptroller, and the managers of the various departments. This is not a substitute for the experienced oversight of the dealership owner, however. Misplaced reliance on on-site managers for Mr. Machado's Puerto Rican operations had lead to the very serious financial problems of those businesses.

    
    

16. Gus Machado Buick-GMC Truck sold a larger number of Buick automobiles and GMC trucks in 1989 than the dealership had sold in 1987. Ironically, 1987 was a profitable year, but 1989 was not, even though the gross profit per unit sold in 1989 ($1,171 for cars and $1,210 in trucks) was slightly higher than the gross profit per unit sold in 1987 ($1,166 for cars and $1,019 for trucks). Mr. Machado ultimately requested assistance from Buick in attempting to identify a potential purchaser for his Buick-GMC Truck dealership. General Motors commonly receives these sort of requests from its dealers. A manager for Buick did

    locate one prospective buyer and Mr. Machado had some contact with him, but nothing came of it.

    
    

17. The most serious problem which Gus Machado Buick-GMC Truck ultimately encountered, and which forced its closure in February 1991, was the loss of its floor plan financing through General Motors Acceptance Corporation (GMAC) in late May or early June of 1990. Although credit difficulties began earlier, they came to the fore in mid to late December 1989 after Mr. James R. Hardesty became the branch manager for the GMAC office which handled dealerships in Miami. Mr. Machado met with Mr. Hardesty in January of 1990 because Mr. Hardesty was concerned about Gus Machado Buick-GMC Truck's credit worthiness. A check written to GMAC by the dealership to pay off a vehicle sold at retail had been dishonored by the dealership's bank, Consolidated Bank. This was not a good footing on which to begin Mr. Machado's relationship with Mr. Hardesty. GMAC had extended floor plan financing for new and used vehicles at the Buick dealership, and also had made a $600,000 loan to the dealership, but Mr. Hardesty believed that the books of the Buick dealership showed insufficient working capital available for the day-to-day operation of the business. Under the separate Dealer Sales and Service Agreement which Mr. Machado had with General Motors, the dealership was required to maintain a minimum net working capital of $2 million. Mr. Machado agreed to infuse additional working capital into the business, although Mr. Hardesty did not require that Mr. Machado obtain a specific amount of additional capital. Mr. Machado acknowledged at hearing that he knew the business needed $600,000 to $700,000 in working capital.

    
    

18. Mr. Hardesty knew that the dealership was losing money and was being run on a day-to-day basis by Mrs. Machado, not Mr. Machado. This did not give him a great deal of confidence in the dealership's management team. GMAC had other problems in its relationship with the Machado dealership. Even before Mr. Hardesty came to Miami, GMAC was not receiving timely interest payments on the Machado Buick inventory it had financed, on the $600,000 loan GMAC had made to the dealership, or timely payment on dealer reserve chargebacks. Audits of the dealership inventory revealed GMAC was not being paid in a timely manner when cars were sold at retail, which required GMAC to conduct audits of the cars on the Machado lot more frequently than had been customary.

    
    

19. One of the things Mr. Hardesty did was to require that for any unit which Gus Machado Buick-GMC Trucks sold, the floor plan financing for that car would have to be paid off within 24 hours of sale. This requirement was consistent with the written agreements which Mr. Machado had with GMAC. It was the practice in the industry, however, for GMAC to permit dealers in good financial condition more time to pay off cars, perhaps as much as three to four days. By insisting on the 24-hour pay-off, Gus Machado Buick-GMC Truck had less float, and consequently needed more working capital. The 24-hour pay-off requirement had the effect of requiring Mr. Machado to infuse the equivalent of about $120,000 working capital into his business in order to keep current on the dealership's bills.

    
    

20. Mr. Machado understood Mr. Hardesty's position. When Mr. Hardesty also attempted to obtain additional security through a mortgage on the dealership property, however, Mr. Machado declined.

    
    

21. After the initial meeting, the relationship between GMAC and Gus Machado Buick-GMC which began on a difficult footing because of the returned check became more rocky. Mr. Hardesty discovered that checks written to GMAC were being paid only because the bank used by Gus Machado Buick-GMC Truck, Consolidated Bank, provided the dealership with overdraft protection. In

    effect, the Machado dealership did not have sufficient working capital to pay off the wholesale financing on cars it was selling and was relying on ad hoc extensions of credit by its bank in order to pay off the GMAC liens on those cars. This was an indication of severe lack of working capital in the dealership. Overdraft protection gives the bank the option to hold a check for up to three days before deciding whether to pay it. This put the floor plan financing entity at considerable risk because cars sold by Gus Machado Buick-GMC Truck had an average pay-off due to GMAC of $15,000 per unit. Over three days Consolidated Bank could accumulate substantial dollar volume in checks presented by GMAC for payment. GMAC would not know for three days whether checks it received from Gus Machado Buick-GMC Truck to pay off the financing on those units which had been sold to third parties would be honored. Moreover, the dealership had significant loans from Consolidated Bank, which could exercise a set-off right against the funds in the Machado account to be used to pay off the GMAC liens. For these reasons Mr. Hardesty insisted that Mr. Machado move his dealership account to a bank which did not provide overdraft protection and did not have other loans to the dealership. The checking account was moved to Southeast Bank.

    
    

22. The Machado dealership still did not make timely payments on its wholesale interest obligations and on the $600,000 capital loan which GMAC had made to the dealership. Audits conducted by GMAC of the cars on hand at the dealership revealed that vehicles were being delivered to retail customers without payment being made to GMAC within the time period allowed. Perhaps worst of all, GMAC found that the debt which it had loaned Gus Machado Buick-GMC Truck $600,000 to pay off (see Finding 17) had not been paid, and no satisfactory explanation could be made about what had happened to that money.

    
    

23. Over several meetings, Mr. Hardesty stressed to Mr. Machado that it was imperative that additional working capital be provided to the dealership in order for GMAC to continue its relationship as the floor plan financing entity for Gus Machado Buick-GMC. Mr. Machado had difficultly in obtaining additional capital because he had chosen to make substantial investments in real estate, including the purchase and renovation of his home. Mr. Machado repeatedly gave assurances to Mr. Hardesty that he would infuse additional capital into the dealership, but did not do so.

    
    

24. After the dealership account had been moved to Southeast Bank, in May of 1990, GMAC received checks for seven or eight cars which had been delivered to retail customers which were dishonored by Southeast Bank. Had the Machado account remained at Consolidated Bank, those checks might have been paid by Consolidated Bank using overdraft protection. The significant point, however, is not only that the checks were returned, but that the returns demonstrated that the Machado dealership continued to have inadequate working capital to pay the business' debts as they matured. This lead Hardesty to put Mr. Machado's credit line on hold, which meant that GMAC would not automatically finance new cars for the dealership. Mr. Machado would have to discuss any new purchases with Mr. Hardesty, who would make a decision of whether or not to finance them. Thereafter, Mr. Machado presented to Mr. Hardesty a deposit slip showing that

    $300,000 had been deposited in the Gus Machado Buick-GMC Truck dealership's working account as additional working capital. Mr. Machado asked that the normal credit relationship be reestablished. Mr. Hardesty discovery shortly thereafter that two days after that deposit was made, $200,000 had been withdrawn and applied elsewhere, and the remaining $100,000 had been used to cover a bank overdraft.

25. The dealership's recent history of problems, including 1) the manipulation of the $600,000 GMAC loan which had been extended to extinguish a dealership debt, 2) the failure to make timely payments to GMAC on that loan and on interest due on floor plan financing, 3) the dealership's repeated overdrafts, 4) the several returned checks, 5) the lack of candor of Mr. Machado in attempting to mislead Mr. Hardesty into believing that $300,000 had been deposited into the business as additional working capital, 6) the dealership's monthly operating losses, and 7) the operation of the dealership by Mrs. Machado, who was not an experienced dealer, led Mr. Hardesty to believe that Gus Machado Buick-GMC was not credit worthy. He suspended the dealership's floor plan financing.

    
    

26. The effect of that suspension was dramatic. General Motors will not build cars for a dealer unless the dealer posts a large cash deposit or had an arrangement with a financial institution to pay General Motors for the cars to be built. Mr. Machado was unable to purchase any new automobiles and had to operate only with its remaining inventory. GMAC did not, as it might have, repossess the existing inventory. Without floor plan financing, however, the only way for Gus Machado Buick-GMC Truck to acquire new vehicle inventory was to pay for it with cash, which Mr. Machado could not do. Mr. Machado did attempt to obtain alternate financing. Due to the difficult conditions in the banking industry, Mr. Machado was not able to find a bank willing to take on floor plan financing for his dealership, and although he approached Ford Motor Credit to provide floor plan financing for the automobiles at his Buick dealership, it was unwilling to do so. The suspension of the line of credit by GMAC, as a practical matter, scared off other lenders. The reasons GMAC had for suspending the line of credit should independently have lead any prudent lender in possession of all the facts to a similar conclusion. Lending money to Gus Machado Buick-GMC Truck at that time was risky business.

    
    

27. As the inventory of new cars dwindled, so did sales. Many dealership employees were let go. By early November of 1990, Buick Motor Car Division learned that Mr. Machado was considering converting his dealership property into a shopping center. A Buick employee spoke to Mr. Machado and expressed concern about the use of the dealership property in a manner contrary to the terms of the Dealer Sales and Service Agreement. Mr. Machado stated that if the plan to change the use of the dealership property came to fruition, he would like to discuss relocation alternatives with Buick at that time, but it was too premature to consider a relocation of the dealership yet. Mr. Machado acknowledged that any request for relocation would have to be made in writing.

    
    

28. In the fall of 1990 Mr. Machado was sued for $7 million by AmeriFirst for a default with respect to the $4 million loan on the dealership property and a separate mortgage on Mr. Machado's Ford dealership for $3 million. Suits were also filed against him by Universal Bank for $210,000, the Bank of Boston for

    $300,000 for loan defaults, and another suit was filed by a former employee for

    $21,000.

    
    

29. As late as November of 1990, Mr. Machado believed that the Buick dealership could become profitable if it had the necessary inventory of new vehicles and he was able to devote all of his time to management of the dealership.

    
    

30. By February 1, 1991, the Machado Buick-GMC Truck dealership ceased operation. It did not have a sales and service facility open and available for work eight hours a day, five days a week, excluding holidays.

31. General Motors advised Mr. Machado on March 5, 1991, that 15 days from the date of that notice the Dealer Sales and Service Agreements Mr. Machado had would be cancelled because the dealership had been closed for more than ten business days, in violation of the agreement. By letter of March 11, 1991, Mr. Machado asked to relocate his dealership to a facility which was then a Mohawk Tire store. That facility did not meet the requirements for dealer operations, and would require extensive modification and enlargement. In addition, Mr. Machado did not have any assurance that if he could arrange to remodel that location he could also obtain the necessary floor plan financing to operate the Buick-GMC dealership.

    
    

32. Later, on July 25, 1991, Mr. Machado entered into a Sales Agreement for the Buick-GMC Truck franchise with Alan Potamkin, who either owns or is involved in the ownership of more than 55 automobile dealerships around the country, including General Motors dealerships.

    
    

33. Mr. Potamkin has proposed to move the Buick-GMC Truck dealership to other locations in Hialeah or in Dade County.

    
    

34. Mr. Potamkin submitted the necessary paperwork for review of a possible transfer of the Buick-GMC Truck dealership from Mr. Machado to Potamkin, but the acquisition agreement which was presented in evidence specifically shows that Mr. Machado is not selling the existing dealership's land or facilities to Mr. Potamkin. Consequently, he would have to find some other location for the Machado dealership. He could not merely take over the dealerships on the same terms and conditions which Mr. Machado had. The location and facilities necessarily would be different. Mr. Machado would be free to use the 6.25 acres on which the dealership was located for some different endeavor.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1991).

    
    

36. The termination of the Machado Dealership Sales and Service Agreements may be permissible under the terms of those agreements because the dealership has not been in operation since February 1, 1991. This is not a suit on that agreement, however. The question here is a statutory one, whether Buick and GMC Truck may terminate the dealer agreements under the abandonment provision found in Section 320.641(4), Florida Statutes (1989), which says that:

    
    

    . . .the failure of a motor vehicle dealer

    to be engaged in business with the public for

    10 consecutive business days constitutes abandonment by the dealer of his franchise agreement. If any motor vehicle dealer abandons his franchise agreement, he has no cause of action under this section. . . .

    
    

37. Although Buick-GMC Truck maintains that Mr. Machado filed this action to determine whether there has been an abandonment of a franchise, and that Mr. Machado therefore has the burden of proving that there has been no abandonment, this is not so. Buick-GMC Truck initiated this action by giving Mr. Machado notice of the manufacturer's intent to terminate the Dealer Sales and Service Agreement. Cf., Florida Dept. of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974) (employee may be

    required to initiate proceeding to challenge proposed discipline but does not bear burden of proof; disciplinary agency does). Although it was Mr. Machado who filed for a hearing, the parties with the burden of persuasion are Buick and GMC Truck, which are required to demonstrate that Mr. Machado abandoned the dealership by failing to engage in business for ten consecutive business days.

    There is no dispute that the dealership has been closed since February 1991. General Motors has proven the essential elements of its case.

    
    

38. The statute, however, also gives the dealer an affirmative defense, on which it does bear the burden of proof. Under Section 320.641(4), the closing of a dealership is not an abandonment "if such failure to engage in business is due to an act of God, a work stoppage, a delay due to a strike or labor difficulty, a freight embargo, or other cause over which the motor vehicle dealer has no control, including any violations of Sections 320.60 through 360.70."

    
    

39. Mr. Machado has neither claimed nor proven that his Buick-GMC Truck dealership closed due to an act of God, a work stoppage, a delay due to a labor strike or a fright embargo. The only issue is whether the closing is excused under the general language which focuses on some "cause over which the motor vehicle dealer has no control."

    
    

40. Mr. Machado maintains that the exculpatory clause applies due to 1) GMAC's unfair termination of the floor plan financing for the dealership, 2) the economic recession faced by dealers of American cars, and particularly the

    Buick car line in Dade County, Florida, and 3) the failure of General Motors to cooperate in good faith with Mr. Machado in his efforts to relocate the franchise.

    
    

41. The evidence does not support Mr. Machado's contention that GMAC acted unfairly in terminating the dealership's floor plan financing. The actual text of the floor plan financing agreement was never placed in evidence, and the duties and obligations of the parties would be controlled by the terms of that agreement. Since Mr. Machado has the burden of proof on the exculpatory clause, there has been a significant failure of proof in this regard. Mr. Machado does not, however, rely on any particular language in that agreement, but a more general implied duty of good faith imposed under Florida law in dealings between General Motors, the manufacturer, and Mr. Machado as a franchisee. This argument fails as well, because Mr. Machado has not shown that Buick or GMC Truck are responsible for the actions of a separate corporation, GMAC. The closure of the dealership for lack of necessary financing would not have been a "cause over with [Mr. Machado] had no control" within the contemplation of the exculpatory provision found in Section 320.641(4) if the floor plan financing lender had been Ford Motor Credit, Chrysler Motor Credit, or any other bank. Buick-GMC Truck are correct in their argument that the "other cause" provision focuses on acts of third parties for which the dealer is not responsible. For example, if through a lightning strike the dealership were substantially destroyed by fire (an act of God) or a labor dispute arose between auto workers and General Motors which resulted in the inability of the dealership to obtain cars, and closure followed for lack of inventory, those events would be wholly external to the dealer. The exculpatory provision is not meant to cover situations where the dealer, through its course of dealing with its floor plan financing entity, loses financing on account of its own conduct. A closer question might be presented if failures of many financial institutions left most dealers unable to obtain floor plan financing, but that is not the situation presented here. The evidence in this record strongly supports the conclusion

    that GMAC had valid reasons to terminate its lending relationships with Mr. Machado. The facts proven do not support a finding that GMAC acted unfairly.

    
    

42. Mr. Machado also failed to demonstrate that the trough in the new car sales cycle nationally, in Florida, or in Dade County was so severe as to qualify as a reason for closure over which the motor vehicle dealer had no control. The precipitating cause of the closure was Mr. Machado's loss of a floor plan financing lender, not the down turn in new auto sales (see Finding 17). The two are somewhat interrelated, but the evidence is not convincing that the down turn in sales experienced by new car dealers generally was so severe that the dealership would have closed even if the Gus Machado Buick-GMC Truck dealership had not lost its floor plan lender. Mr. Machado believed, after the termination of the floor plan financing, that if he were able to obtain financing and devote his time to the day-to-day management of the dealership, with the proper inventory, the dealership could have been profitable. (Finding 29)

    
    

43. The final basis on which Mr. Machado relies to show that its closure did not constitute abandonment under the statutes is his contention that General Motors violated Sections 320.60 through 320.70, and violated its duty of good faith in failing to assist Mr. Machado in his efforts to relocate the dealership. Nowhere in his proposed recommended order does Mr. Machado point to any language in the Dealer Sales and Service Agreement which imposes an obligation on General Motors to even consider, much less to assist, in a relocation. Mr. Machado's argument appears to be that this duty does not arise from the text of the agreement but also from the more generalized duty to deal with him in good faith.

    
    

44. The evidence is simply unpersuasive that the reason the Machado dealership closed its door for more than 10 days, and falls within in the statutory criteria for abandonment, is because of where it is located. The dealership's location was not its problem. To the contrary, the evidence is persuasive that during good years in the automobile industry Mr. Machado prospered because of his location in Hialeah. Nothing in the evidence shows that the particular real estate on which the dealership is located was a poor location, and that poor location resulted in a lack of sales which caused the dealership to close its doors. If Mr. Machado, for his own reasons, as his own landlord, set a high rent for the property, that is his own doing. If he would like to sell the dealership, as distinct from the real estate on which the dealership is located, he may agree with Mr. Potamkin to such a transaction. Mr. Machado cannot claim a right to require General Motors to approve the relocation of the Machado franchise. Some cooperation, indeed a rather high level of cooperation, is essential for both Buick and Machado to profit from their relationship. They are not partners, however. What Mr. Machado's argument misses entirely is that the agreement between Mr. Machado and Mr.

    Potamkin for the sale of Machado's Buick-GMC franchise was not signed until July 25, 1991, long after the time the Buick-GMC Truck dealership closed on February 1, 1991 (compare Findings 30 and 32).

    
    

45. Assuming without deciding that General Motors had some duty to cooperate with Mr. Machado to bring to fruition a sale of the dealership, and a relocation of the dealership, that duty would play no part here. The Machado franchise was not closed for more than 10 business days because General Motors failed to approve the sale of a franchise and the relocation of a dealership. There was no specific proposal for Buick and General Motors to review, and there was no transaction for General Motors to cooperate in bringing to fruition on or before February 1, 1991.

46. Neither is there any authority for the proposition that Buick and General Motors were under a duty of good faith to assist Mr. Machado "in attempting to either reinstate its financing with GMAC or to obtain an alternative source of funds" (Machado's proposed recommended order, conclusions of law, paragraph 5). There is no satisfactory evidence that there was anything that General Motors could have done to assist Mr. Machado in obtaining financing given his Buick-GMC dealership's poor record with GMAC, which led Mr. Hardesty to cancel the floor plan financing. GMAC acted reasonably in cancelling the financing, there is no basis in the evidence to find that any prudent lender would have wanted to take on Mr. Machado's Buick-GMC Truck dealership as a client given the dealership's recent credit history.

    
    

47. Finally, Mr. Machado argues that he is entitled to special protection under the following language in Section 320.605, Florida Statutes (1989):

It is the intent of the Legislature to protect the public health, safety, and welfare of the citizens of the state by regulating the licensing of motor vehicle dealers and manufacturers, maintaining competition, providing consumer

protection and fair trade and providing minorities with opportunities for full participation as motor vehicle dealers.

This statement of legislative intent confers no substantive rights on Mr. Machado, as a Cuban American, distinct from the rights which the statute grants to any automobile dealer. There is no persuasive evidence that Buick or GMAC engaged in any invidious discrimination against Mr. Machado because he is a Cuban-American.

RECOMMENDATION

It is RECOMMENDED that a final order be entered by the Department of Highway Safety and Motor Vehicles finding that Gus Machado Buick-GMC Truck, Inc., abandoned its Dealer Sales and Service Agreement with Buick and GMC Truck by failure to engage in business with the public since February 1, 1990, and that Mr. Machado has failed to prove that the closure of the dealership was due to any reason which would excuse its failure to conduct business under Section 320.641(4), Florida Statutes (1989).

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of April 1992.

WILLIAM R. DORSEY, JR.

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 9th day of April 1992.

ENDNOTES

1/ Perhaps Mr. Machado thought his home's potential increase in value justified directing so much cash to his residence, or perhaps he allocated his personal assets in that way to maximize the benefits available to him under the Florida Constitution's homestead provision. See Article 10, Section 4(a), Florida Constitution. Why he chose to allocate his assets as he did is not directly at issue in this proceeding.

APPENDIX TO RECOMMENDED ORDER

Rulings on findings proposed by the Petitioner:

1 & 2. Adopted in Finding 1.

1. Adopted in Finding 3.

2. Adopted in Findings 3 and 4.

3. Adopted in Finding 4.

4. Adopted in Finding 7.

7 & 8. Adopted in Finding 9.

1. Adopted in Finding 16.

2. Rejected, see Finding 16.

1. Generally adopted in Findings 17 and 19.

2. Adopted in Finding 19.

3. First sentence rejected as unnecessary. Mr. Machado agreed that he need additional capitalization and the dealership's inability to pay its bills on time bore this out. Second sentence rejected as inconsistent with Mr. Machado's own testimony. Both he and Mr. Hardesty agreed that $600,000 to

   $700,000 in additional working capital was needed. See Tr. 160.

4. Adopted in Finding 21.

5. Adopted in Finding 24.

6. Rejected. The Hearing Officer has accepted the testimony of Mr. Hardesty that the dealership was "out of trust." See Tr. 254-55.

7. Adopted in Finding 26.

8. Rejected as unnecessary.

9. Adopted in Finding 30.

10. Generally adopted in Finding 32 but note in Finding 30 that only the franchise was sold, not the land.

11. Adopted in Finding 32.

12. Rejected as unnecessary, see also Finding 34.

13. Rejected as unpersuasive except that Mr. Potamkin's proposals to move the dealership were rejected, which is true.

Rulings on Findings proposed by the Respondent:

The findings proposed have generally been accepted. Findings 30-35 have not been accepted because the testimony of Mr. Argiz is not essential to this case. In general, the cross examination of Mr. Argiz with respect to his analysis of the reasons Buick sales declined was effective. Mr. Argiz may be a fine accountant but the bulk of his testimony involved matters out of his field.

COPIES FURNISHED:

Craig Edward Stein, Esquire Fine, Jacobson, Schwartz, Nash

Block & England

100 Southeast 2nd Street Miami, Florida 33131

James D. Adams, Esquire 7300 West Camino Real

Boca Raton, Florida 33433-9984

Edward W. Risko, Esquire

Office the of the General Counsel General Motors Corporation

3031 West Grand Boulevard Detroit, Michigan 48202

Dean Bunch, Esquire

Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301

Charles J. Brantley, Director Division of Motor Vehicles

Room B439, 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

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

GUS MACHADO BUICK-GMC TRUCK, INC.,

Petitioner,

vs. DOAH CASE NO. 91-1997

GENERAL MOTORS CORPORATION, BUICK AND GMC TRUCK DIVISIONS,

Respondent.

/

FINAL ORDER

This matter came before the Department for entry of a Final Order upon submission of a Recommended Order by William R. Dorsey, Jr., a Hearing Officer of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order as its Final Order in this matter. 1/

Accordingly, it is

ORDERED and ADJUDGED that the Petitioner, Gus Machado Buick-GMC Truck, Inc., has abandoned its franchise with Buick and GMC Truck and is no longer a franchised Buick and GMC Truck dealer.

DONE and ORDERED this 8th day of July, 1992, in Tallahassee, Leon County, Florida.

CHARLES J. BRANTLEY, Director

Division of Motor Vehicles Department of Highway Safety

and Motor Vehicles Neil Kirkman Building

Tallahassee, Florida 32399

Filed with the Clerk of the Division of Motor Vehicles this 8th day of July, 1992.

ENDNOTE

1/ Petitioner, Gus Machado Buick-GMC Truck, Inc., filed exceptions to the Recommended Order. These exceptions are ruled on in the Appendix to this Order.

NOTICE OF APPEAL RIGHTS

Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules of Appellate Procedure.

Copies furnished:

Craig Edward Stein, Esquire Fine, Jacobson, Schwartz, Nash

Block & England

100 Southeast 2nd Street Miami, Florida 33131

James D. Adams, Esquire 7300 West Camino Real

Boca Raton, Florida 33433-9984

Edward W. Risko, Esquire Office of the General Counsel General Motors Corporation 3031 West Grand Boulevard Detroit, Michigan 48202

Dean Bunch, Esquire

Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301

Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504

William R. Dorsey Jr., Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Freddie Duggar Florida Administrative Law Reports Post Office Box 385

Gainesville, Florida 32602

APPENDIX TO FINAL ORDER

RULINGS ON EXCEPTIONS TO RECOMMENDED ORDER

The Department rules as follows on the Petitioner's exceptions (letters refer to the paragraphs contained in part II of Petitioner's Exceptions):

1. Denied. The Hearing Officer's Findings of Fact on the abandonment issue were based on competent substantial evidence and the Hearing Officer correctly applied the law to these Findings in arriving at the Conclusions of Law.

2. Denied. The Petitioner has not shown that the Hearing Officer abused his discretion by denying the Motion to Stay.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

GUS MACHADO BUICK-GMC NOT FINAL UNTIL TIME EXPIRES TO TRUCK, INC., FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED.

Appellant,

vs. CASE NO. 92-2644/92-2645

DOAH CASE NO. 91-1997

GENERAL MOTORS CORPORATION,

Appellee.

and (note: unconsolidated DOAH Cases,

2 Recommended Orders issued.)

GUS MACHADO BUICK-GMC TRUCK, INC.,

Appellant,

DOAH CASE NO. 91-6300

vs.

BUICK MOTOR DIVISION, GENERAL MOTORS CORPORATION,

Appellee.

/ Opinion filed August 30, 1993.

An Appeal from an order of the Department of Highway Safety & Motor Vehicles. James D. Adams of the Law Office of James D. Adams, Boca Raton, for Appellants.

Edward Risko, Office of General Counsel, General Motors Corporation, Detroit, Michigan; Dean Bunch of Cabaniss, Burke & Wagner, Tallahassee, for Appellees.

ERVIN, J.

We have consolidated these two cases for the purpose of this opinion, because the outcome of the latter case, No. 92-2645, is dependent upon our resolution of the former, No. 92-2644. In Case No. 92-2644, appellant, Gus Machado Buick-GMC Truck, Inc. (Machado), seeks review of a nonfinal order entered by the Department of Highway Safety and Motor Vehicles (Department) granting a motion to dismiss filed by appellee, General Motors Corporation (GM), wherein GM sought to dismiss its own complaint regarding a proposed transfer of Machado's franchise. In Case No. 92-2645, Machado seeks review of a final order entered by the Department determining that Machado had abandoned its franchise and was no longer a franchised Buick and GMC truck dealer. Because we conclude that the Department correctly determined that the proposed transfer of the franchise by Machado to another dealer, Potamkin, was invalid under Section 320.643(1), Florida Statutes (1989), we affirm as to both orders.

The facts in these cases are essentially undisputed. Machado closed its dealerships on February 1, 1991. Thereafter, on March 5, 1991, GM notified Machado, pursuant to Sections 320.641(4) and (5), Florida Statutes (1989), that it was exercising its right to cancel its dealership agreements with Machado on the ground of abandonment, because the dealerships had been closed for more than ten business days. On March 22, 1991, Machado filed a petition pursuant to section 320.641(S) for determination of whether an abandonment had, in fact, occurred (the termination case, which is now the subject of the appeal in Case No. 92-2645).

While the termination proceeding was pending, but before the final hearing, Machado and Potamkin entered into an agreement to transfer the franchise, and Machado notified GM. Thereafter, GM filed a verified complaint, pursuant to Section 320.643(1), Florida Statutes (1989), as a precautionary response to the proposed transfer (the transfer case, which is the subject of the appeal in Case No. 92-2644). GM complained therein that Machado's intended transfer contemplated discontinuance of the Buick/GMC truck operations at the present approved location and reestablishment of the operations at one or more alternative locations in conflict with the provisions of its existing dealership agreements with GM. GM argued that as a result of the planned relocation, Potamkin could not agree "in writing to comply with all requirements of the franchise then in effect," as is required by section 320.643(1), and that the envisaged transfer was therefore invalid under the statute.

Machado filed a motion to dismiss GM's complaint in the transfer case, arguing that GM's complaint was not authorized under section 320.643(1). 1/ GM then filed a motion to dismiss its own complaint, wherein it asserted that the transfer proposal was void under section 320.643(1), because Potamkin, by virtue of the proposed relocation, could not agree to comply with all the requirements of the existing franchise agreement. The Department of Administrative Hearings (DOAH) hearing officer assigned to the case agreed with GM and entered a recommended order of dismissal, which the Department adopted in its final order of dismissal, the subject of the appeal in Case No. 92-2644.

The crux of the appeals in each case concerns the Department's interpretation of section 320.643(1), as applied to GM's complaint in the transfer case. Thus, in reviewing the final order, we recognize that

administrative agencies are afforded wide discretion in interpreting statutes they administer. The agency's statutory construction is entitled to great weight and is not to be overturned unless clearly erroneous. Braman Cadillac, Inc. v. Department of Highway Safety & Motor Vehicles, 584 So.2d 1047, 1050 (Fla. 1st DCA 1991). Our task, then, is to determine whether the Department, as the agency regulating the applications, transfers, and revocations of motor vehicle franchise agreements, correctly interpreted the provisions of section 320.643(1). Cf. State Dep't of Health & Rehab. Servs. v. Framat Realty, Inc.,

407 So.2d 238, 242 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Department of Business Reg., 397 So.2d 696, 697 (Fla. 1st DCA 1981).

Section 320.643(1) prohibits a dealer from transferring its franchise agreement to another person unless the dealer first gives notice to the manufacturer of the decision to make the transfer. The manufacturer then has 60 days to inform the dealer either of its approval or the unacceptability of the transfer. If the manufacturer does not so inform the dealer within the 60- day period, approval of the transfer is deemed granted, that is, the transfer occurs by operation of law. The statute continues that the manufacturer cannot unreasonably withhold acceptance of the proposed transferee, and that refusal to accept a proposed transferee who is of good moral character and who meets the standard qualifications for business experience is presumed to be unreasonable. The statute states, however, that "[n]o such transfer, assignment, or sale will be valid unless the transferee agrees in writing to comply with all requirements of the franchise then in effect."

Appellant argues that because GM's complaint did not challenge Potamkin's moral character or business experience, but rather challenged the proposed relocation of the dealership, the complaint does not fall within the purview of section 320.643(1), and, as a consequence, GM failed to file a valid complaint within the 60-day period, thereby allowing the transfer to occur by operation of law. In support of its argument, Machado relies on Mercedes-Benz of North America v. Mike Smith Pontiac GMC, Inc., 561 So.2d 620 (Fla. 1st DCA), review denied, 574 So.2d 142 (Fla. 1990), and Bayview Buick-GMC Truck, Inc. v. General Motors Corp., 597 So.2d 887 (Fla. 1st DCA 1992). 2/ We find the facts in both cases distinguishable from those at bar.

In Mike Smith Pontiac, GM filed a complaint to a proposed transfer, and the Department granted the dealer's motion to dismiss GM's complaint, because the complaint failed to meet the requirements of section 320.643(1), i.e., it did not challenge the proposed transferee's moral character or business experience. This court affirmed, concluding that GM did not state a valid basis for a transfer complaint, and that the Department correctly dismissed the complaint, thereby causing a transfer to occur by operation of law.

In Bayview Buick-GMC Truck, after GM received notice of a proposed transfer, GM asserted its contractual right of first refusal and opted to purchase the dealership, instead of filing a complaint protesting the qualifications of the proposed transferee, pursuant to section 320.643(1). The trial court upheld GM's contractual right of first refusal, notwithstanding GM's noncompliance with the provisions of section 320.643(1). This court reversed, stating that once GM received notice of the transfer, it was required to comply with section 320.643(1) and file a complaint. As GM did not file the complaint, the transfer occurred by operation of law.

As indicated, neither case involved a transfer coupled with a relocation; therefore, both cases are factually distinguishable and do not control.

Instead, we agree with the Department's implicit construction of section

320.643(1), recognizing that a "transfer" of a motor vehicle dealership does not include a relocation. "Transfer" is defined as "chang[ing] over the possession or control of (as, to transfer a title to land)." Black's Law Dictionary 1497 (6th ed. 1990). Location is certainly an important consideration in any type of franchise agreement, and it is undisputed that the franchise agreement at bar contemplates a specific address. Thus, it was reasonable for the Department to interpret the transfer of a franchise under section 320.643(1) as encompassing only use of the same location and not a relocation.

In so concluding, we note that sections 320.60-.70 recognize the importance of location and the effect of a relocation. For instance, when applying for a license, which must be annually renewed, the manufacturer is required to notify the Department of all its authorized dealers and their addresses. 320.63(3), Fla. Stat. (1989). Section 320.642(1), Florida Statutes (1989), provides that once a manufacturer proposes to establish an additional motor vehicle dealership or permit the relocation of an existing dealership, notice must be published in Florida Administrative Weekly, so as to allow similar dealers in the area the opportunity to respond. When a manufacturer contends that existing dealers are not adequately supplying a particular territory, the Department may consider whether the manufacturer has attempted to coerce an existing dealer to relocate. 320.642(2)(b)(5), Fla. Stat. (1989). Finally, no existing dealer has grounds to protest when a dealership is reopened or a successor dealership is opened within twelve months, if it is within two miles of the former location, because it would not be considered an additional dealership. 320.642(5)(a), Fla. Stat. (1989).

To conclude, as it is undisputed that the proposed transfer contemplated a relocation of a dealership, the Department could reasonably interpret the yintended transfer as failing to comply with the "franchise then in effect," as required by section 320.643(1), which thus rendered the proposed transfer invalid. It therefore follows that the provisions of section 320.643(1) are inapplicable to the proposed transfer, and the dismissal of GM's complaint, or its failure to protest Potamkin's qualifications in accordance with the statute, does not result in the transfer of the franchise by operation of law. We therefore affirm the order of dismissal in Case No. 92-2644.

Turning to the termination case, No. 92-2645, Machado contends that the agency erred by denying its motions for stays and abatement, 3/ and by entering the termination order, while the proposed transfer to Potamkin was pending. 4/ Although it is clear that, a pending transfer acts to continue the franchise agreement in a termination proceeding commenced under section 320.641(3), see Mike Smith Pontiac, it is unnecessary to determine whether the proposed transfer in the instant case would have the same effect in GM's abandonment/termination proceeding commenced under sections 320.641(4) and (5), because the proposed transfer to Potamkin was invalid. Consequently, it could not form a basis to stay the termination proceeding. We therefore affirm as well the order in Case No. 92-2645.

AFFIRMED. MINER, J., and SHIVERS, SENIOR JUDGE, CONCUR.

ENDNOTES

1/ Namely, because GM had not alleged in its complaint that the proposed transferee lacked good moral character and/or sufficient business experience, as required by section 320.643(1).

2/ Appellant also relies on an order denying a motion to dismiss entered in Volkswagen of North America, Inc. v. Brumos Jacksonville, Inc., DOAH Case No. 90-5509 (DOAH Oct. 22, 1990). Even if this court were bound by agency orders, this order is so lacking in detail that it cannot be considered.

3/ Machado first moved to abate this action on July 26, 1991, which denied by order dated August 1, 1991. Machado then filed a motion to stay and supporting memorandum, but that motion was denied by order dated December 10, 1991. In so doing, the hearing officer found that the proposed transfer to Potamkin was not valid under section 320.643(1), because Potamkin could not agree to comply with all the requirements of the existing franchise in that he did not represent he was purchasing the land and facility from Machado, but rather intended to relocate the franchise contrary to the terms of the agreement. As there was no valid transfer, the stay provisions of section 320.641(7) do not apply. Machado filed a motion to reconsider, which was also denied. Machado also moved to stay entry of the final order, which was denied by the Department's order dated July 8, 1992, wherein the Department adopted the hearing officer's order of December 10, 1991.

4/ Machado does not contend that the finding of abandonment is not supported by competent, substantial evidence.

MANDATE

from

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, Charles J. Brantley, Director

Division of Motor Vehicles

WHEREAS, in that certain cause filed in this Court styled:

GENERAL MOTORS CORPORATION Case No. 92-2644

vs.

GUS MACHADO BUICK-GMC TRUCK, INC. Your Case No. 91-6300

The attached opinion was rendered on August 30, 1993

YOU ARE HEREBY COMMANDED that further proceedings he had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 15th day of September, 1993

Clerk, District Court of Appeal of Florida First District

Docket for Case No: 91-001997

Orders for Case No: 91-001997