STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH IMPORTS, INC., d/b/a ) BRAMAN MOTORCARS, )
)
Petitioner, )
)
vs. )
) DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )
)
Respondent, )
)
and )
) BMW OF NORTH AMERICA, LLC, AND ) POMPANO IMPORTS, INC., d/b/a ) VISTA MOTORS, )
)
Intervenors. )
Case No. 03-4251
)
RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing in Tallahassee, Florida, on May 4th, 5th, and 6th, 2004.
APPEARANCES
For Petitioner: Loula M. Fuller, Esquire
Myers & Fuller, P.A. Post Office Box 14497
2822 Remington Green Circle Tallahassee, Florida 32317-4497
For Respondent: Enoch J. Whitney, Esquire
Michael J. Alderman, Esquire Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room A-432 2900 Apalachee Parkway
Tallahassee, Florida 32399 For Intervenor BMW of North America, LLC:
Dean Bunch, Esquire
C. Everett Boyd, Jr., Esquire Sutherland, Asbill & Brennan, LLP 2282 Killearn Center Boulevard Tallahassee, Florida 32309-3576
For Intervenor Pompano Imports, Inc.:
John W. Forehand, Esquire Walter E. Forehand, Esquire Lewis, Longman & Walker, P.A.
125 South Gadsden Street, Suite 300 Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
The issue in this case is whether Vista Motors' new BMW dealership at 4401 West Sample Road, Coconut Creek, resulted from a relocation and reopening of Vista Motors' former BMW dealership at 700 North Federal Highway, Pompano Beach, in compliance with Section 320.642(5)(b), Florida Statutes, which grants certain "reopening" dealers an exemption from protest.
PRELIMINARY STATEMENT
By letter dated October 15, 2003, Respondent Department of Highway Safety and Motor Vehicles notified BMW of North America, LLC that its dealer, Pompano Imports, Inc., d/b/a Vista Motors, would be denied a license to operate a proposed BMW dealership
at 744 North Federal Highway, Pompano Beach, unless certain conditions were met. Petitioner Palm Beach Imports, Inc., another BMW dealer and a competitor of Pompano Imports, soon learned of this decision. Petitioner believed that the Department's intended action with regard to Pompano Imports' proposed BMW dealership implicitly treated Pompano Imports' recently opened BMW dealership at 4401 West Sample Road, Coconut Creek, as a non-"protestable" relocated dealership, rather than a "protestable" additional dealership, as Petitioner would have it.
On November 7, 2003, Petitioner filed a petition with the Department, alleging therein that BMW of North America and Pompano Imports were pretending that Pompano Imports had relocated its BMW dealership from 700 North Federal Highway, Pompano Beach (a previously licensed location), to 4401 West Sample Road, Coconut Creek (a presently licensed location), in order wrongfully to take advantage of Section 320.642(5), Florida Statutes, which grants certain "reopening" dealers a protest-exemption. According to Petitioner, the BMW dealership on North Federal Highway had never actually been moved to, and reopened at, 4401 West Sample Road, as evidenced by the fact that BMW of North America and Pompano Imports were attempting to open an "additional" dealership at 744 North Federal Highway——a property which is adjacent to 700 North Federal Highway——even
before the purported relocation had occurred. Petitioner charged that, through this alleged sham relocation, BMW of North America and Pompano Imports were maneuvering illicitly to defeat Petitioner's right to protest the opening of a BMW dealership at 4401 West Sample Road.
The Department forwarded the petition to the Division of Administrative Hearings ("DOAH"), where the undersigned was assigned to preside in the matter. Thereafter, by motions filed on November 21 and 25, 2003, respectively, Pompano Imports and BMW of North America sought to intervene as parties. Both motions were granted.
The final hearing was originally set for February 20, 2004. The undersigned granted both of Petitioner's ensuing motions for continuance, however, moving the final hearing first to April 6- 8, 2004, and finally to May 4-6, 2004.
Before the final hearing, three trade associations——namely, the South Florida Auto-Truck Dealer Association, Inc.; Florida Automobile Dealers Association; and Greater Tampa Bay Automobile Association, Inc.——petitioned for leave to intervene or, alternatively, to file a position statement or amicus brief.
These associations were not permitted to intervene, but they were granted the opportunity to submit a position paper, which they did, on the condition that a witness be made available at hearing to testify about the positions taken, which was done.1
At the final hearing, Petitioner presented the testimony of Norman Braman, its president and principal shareholder; Stanley Krieger, who is Petitioner's general counsel; and Ronald Reynolds, the Department's Dealers License Administrator.
Petitioner offered portions of the depositions of the following employees of BMW of North America: Philip Capossela, Christopher Knettler, Frances McCaffrey, and Michael George.
Petitioner also offered portions of the depositions of the following employees of Pompano Imports: Manuel Villamanan and Jonathon Chariff.
The Department called Mr. Reynolds as a witness. BMW of North America presented the testimony of its employees Edward Huzyak and Gilbert English. BMW of North America also offered portions of the depositions of Messrs. Capossela, Knettler, and George and Ms. McCaffrey. Pompano Imports presented the testimony of Michael Perrault and offered portions of the depositions of Messrs. Villamanan and Chariff.
Petitioner's Exhibits 1-3, 8, 10, 13-21, 23-27, 41, 42, 44a, 44b, 48a-c, 53, 54, and 57 were received into evidence. Intervenors' Exhibits 8-10, 13-17, 20, 21, 23, 25, 27-32, 38,
39, 41, 42, and 44 were also admitted into evidence.
At Petitioner's instance, official recognition was taken of the following final orders: (1) General Motors Corp., et al. v. Florida Dept. of Highway Safety and Motor Vehicles, DOAH Case
Nos. 91-2591RP, 91-2821R, 91-2822R, 91-2899R, 91-2901R, and 91-
2902R (Fla.Div.Admin.Hrgs. Sept. 22, 1993); and (2) General
Motors Corp., etc. v. Florida Dept. of Highway Safety and Motor Vehicles, No. HSMV 91-076-FOF-DMV (Fla.Dept. H.S.M.V. Sept. 27,
1991). Official recognition was also taken of BMW of North America, LLC v. Department of Highway Safety and Motor Vehicles, DOAH Case Nos. 03-4250 and 03-4257, 2004 WL 833605
(Fla.Div.Admin.Hrgs. Apr. 15, 2004), and the related Final Order, No. HSMV 04-224-FOF-DMV (Fla.Dept. H.S.M.V. May 3, 2004).
The final hearing transcript was filed on July 15, 2004. Thereafter, each party timely submitted a Proposed Recommended Order before the established deadline, which was August 16, 2004.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2003 Florida Statutes.
FINDINGS OF FACT
In 1996, Intervenor BMW of North America, LLC ("BMW NA")2 unveiled a "market strategy" to all of the BMW dealers doing business in Palm Beach, Broward, and Miami-Dade Counties (hereafter, collectively, the "South Florida Dealers") whereby each of them would be granted an additional or "satellite" BMW dealership3 provided, among other conditions, that each dealer agreed to waive its protest rights under Section 320.642, Florida Statutes, with regard to these satellite dealerships.4
The South Florida Dealers comprised three distinct business enterprises, which were often identified with reference to their respective principals: Norman Braman, Charles Dascal, and J. S. Holman. Mr. Braman held interests in BMW dealerships located in Miami and West Palm Beach. One of Mr. Braman's companies was (and is) Petitioner Palm Beach Imports, Inc., d/b/a Braman Motorcars ("Braman"), which is the dealer operating in West Palm Beach. Mr. Dascal held interests in BMW dealerships located in Broward County and in Miami. One of Mr. Dascal's companies was (and is) Intervenor Pompano Imports, Inc., d/b/a Vista Motors ("Vista"), which operated a BMW dealership in Pompano Beach until October 7, 2003, and now does business as a BMW dealer in the City of Coconut Creek, Florida. Mr. Holman was a principal in Ft. Lauderdale Imports, Ltd. ("Lauderdale"), a dealer doing business in Ft. Lauderdale. For ease of reference the South Florida Dealers will be referred to individually as Braman, Vista, and Lauderdale.5
As originally conceived and formally presented to the South Florida Dealers in December 1996, BMW NA's market strategy called for Braman to be awarded a satellite dealership in Delray Beach, a municipality which is situated in the southern part of Palm Beach County, on the coast. Vista and Lauderdale, under the original plan, would have been offered satellite locations in Broward County west of the Turnpike. BMW NA and the South
Florida Dealers never reached an agreement regarding this particular strategy, however, because Vista objected to the proposed Braman satellite in Delray Beach.
Notwithstanding the absence of an agreement involving all of the South Florida Dealers, at some point in 1997 Vista and BMW NA revisited the possibility, which had been discussed from time to time over the past several years, of relocating Vista's BMW dealership in Broward County from its Pompano Beach location to a better location. Vista's facility in Pompano Beach, whose street address was 700 North Federal Highway ("N. Federal Hwy"), had become outdated and cramped, having been built decades earlier, and BMW NA and Vista wanted Vista to have a larger, more modern shop. Also, moving westward would place the dealership closer to Interstate 95 and the Turnpike, making it more accessible to customers. Thus, relocation made sense for a number of reasons.
In mid-1997, BMW NA approved a plan to move Vista's BMW dealership to a location in the City of Coconut Creek, Florida, which is in western Broward County.
Acquiring the property to which Vista's dealership would relocate took time. An initial deal fell through due to title defects. In late 1998, Vista entered into a contract to purchase the "Lyons Creek piece," an 11-acre parcel located near the intersection of West Sample and Lyons Roads in Coconut
Creek. A few months later, by letter dated March 24, 1999, BMW NA notified Braman that Vista had requested permission to relocate its dealership to this property.
In the meantime, Vista launched another project: the expansion of its service department at 700 N. Federal Hwy. To accomplish this, Vista rented property, via a lease dated February 1, 1999, from a neighboring automobile dealership operated by Daewoo Motor America, Inc. ("Daewoo"). The Daewoo dealership's address was 744 N. Federal Hwy.
Through its lease with Daewoo, Vista obtained the right to use 24 "work stalls" located in an automobile service center at 744 N. Federal Hwy. This arrangement increased Vista's service capacity, allowing the BMW dealership to handle a larger volume of the lucrative maintenance and repair business than had previously been possible. Vista's customers probably were not aware of the expansion, however, since all consumer transactions continued to take place at 700 N. Federal Hwy.
By letter dated May 12, 1999, BMW NA notified Respondent Department Of Highway Safety and Motor Vehicles (the "Department") that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to the Lyons Creek piece. BMW NA and Vista took the position that, pursuant to Section 320.642(5), Florida Statutes,6 the proposed reopening of Vista's dealership
at the new location in Coconut Creek should not be considered subject to competing dealers' administrative protests.
Vista finally obtained title to the Lyons Creek piece in March 2000. Throughout the rest of the year 2000, Vista proceeded to take steps towards relocating its BMW dealership, having architectural plans for the new facilities drawn up and applying for the necessary permits.
In late 2000, a new opportunity arose for Vista. A piece of property located at 4401 West Sample Road ("W. Sample Rd") in Coconut Creek became available at an attractive price. This property, which comprised approximately 19 usable acres, suited Vista's needs better than the Lyons Creek piece because, in addition to being larger, it included existing dealership facilities, having once been the location of an AutoNation dealer. Within a short time, Vista entered into a contract to purchase the property at 4401 W. Sample Rd. Now, plans to relocate Vista's BMW dealership to the Lyons Creek piece were shelved in favor of moving to AutoNation's former location. In July 2001, Vista acquired title to the land and buildings at 4401 W. Sample Rd.
While Vista worked to ready the property at 4401 W. Sample Rd for use as a BMW dealership, it also pursued a deal to purchase the Daewoo property at 744 N. Federal Hwy, which was adjacent to its existing dealership. In May 2002, Vista reached
a verbal agreement to buy this real estate, but Daewoo's bankruptcy complicated the deal. Litigation to enforce the oral contract ensued.
In August 2002, BMW NA signed a letter of intent approving Vista's request to relocate its BMW dealership to 4401
W. Sample Rd. Soon thereafter, by letter dated September 13, 2002, BMW NA notified the Department that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd in Coconut Creek. Just as in May 1999, BMW NA and Vista took the position that this relocation should be considered exempt, pursuant to Section 320.642(5), Florida Statutes, from the protest provisions of Section 320.642.
Pursuant to Section 320.642(1)(d), Florida Statutes, the Department caused BMW NA's September 13, 2002, notice of relocation to be published in the September 27, 2002, edition of the Florida Administrative Weekly.
On September 27, 2002, also in accordance with Section 320.642(1)(d), the Department mailed copies of BMW NA's September 13, 2002, notice of relocation to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. Within two weeks, however, the Department mailed letters to these same dealers explaining that the proposed reopening of Vista's BMW dealership at 4401 W. Sample Rd would not be a "protestable" event after all.
In November 2002, BMW NA presented the South Florida Dealers with a draft Market Action Agreement in an attempt to resurrect the market strategy that had died on the vine in 1996. The draft agreement referred to the relocation of Vista's dealership to 4401 W. Sample Rd, which was under way, and raised the possibility of Vista's resuming BMW dealership operations at 700 N. Federal Hwy at some unspecified point in time after the pending relocation. Specifically, the draft contract stated:
Prior to the execution of this Agreement, Vista Motor Company has requested that BMW NA approve a relocation of its BMW [dealership] from [700 North Federal Highway] to a facility that is under development at 4401 West Sample Road, Coconut Creek, Florida (the "Sample Road Location"). This request has been approved and BMW NA provided notice of the relocation to the [Department]. It also has been approved by the [Department]. Immediately upon completion of this relocation from [700 North Federal Highway] to the Sample Road Location, the North Federal Highway Location will become an additional proposed location that is the subject of this agreement not to protest.
The draft Market Action Agreement offered Braman the opportunity to open a satellite dealership in north Palm Beach County, suggesting the Town of Jupiter as the likeliest spot. Braman had already determined that zoning restrictions in Jupiter effectively forbade the opening of an automobile dealership there, however, and Braman was not interested in establishing a satellite dealership in another area north of its
West Palm Beach site, preferring instead to open an additional BMW dealership in Delray Beach, which BMW NA would not approve. Thus, Braman rejected the draft Market Action Agreement of November 2002.
In March 2003, BMW NA notified Braman that the proposed Market Action Agreement had failed for lack of the South Florida Dealers' unanimous consent and that BMW NA intended to move forward anyway on plans to establish satellite dealerships for Vista and Lauderdale. Braman was invited to pursue the opportunity to open a satellite dealership in north Palm Beach County.
By letter dated April 14, 2003, Vista formally requested BMW NA's permission to open a satellite dealership at 744 N. Federal Hwy, where the Daewoo dealership had been located. Vista had not yet secured title to that property but was getting close. Vista asked that it be allowed to "operate out of the current facility" at 700 N. Federal Hwy if the effort to purchase the Daewoo property failed, "provided [the current facility] is renovated in accordance with BMW corporate identity standards."
On April 29, 2003, BMW NA and Vista entered into a Letter of Intent authorizing Vista to open a satellite dealership at the "Satellite Location," which was defined as 700
N. Federal Hwy and 744 N. Federal Hwy. This Letter of Intent
called for Vista to sell new BMW automobiles at 744 N. Federal Hwy and to sell "Certified Pre-Owned" (used) vehicles at 700 N. Federal Hwy.
By letter dated May 5, 2003, BMW NA notified the Department that Vista planned to establish an additional or "supplemental" BMW dealership at 744 N. Federal Hwy, to be opened on or after June 30, 2003. As required by statute, the Department not only caused a notice to be published in the May 16, 2003, edition of the Florida Administrative Weekly regarding this putative supplemental dealership, but also it mailed copies of BMW NA's May 5, 2003, notice to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. No dealer timely protested Vista's intended opening of a supplemental dealership at 744 N. Federal Hwy.
Ordinarily, following an "unprotested" notice, the Department enters a final order authorizing the issuance of a license for the proposed additional or relocated dealership upon the applicant's satisfaction of all other requirements for licensure. In this case, however, before the entry of such an order, the Department learned that 744 N. Federal Hwy and 700 N. Federal Hwy were contiguous properties.
Based on this information, the Department informed BMW NA and Vista, by letter dated July 10, 2003, of its decision that because Vista was still operating a BMW dealership at 700
N. Federal Hwy, and because 744 N. Federal Hwy was immediately adjacent to the existing dealership, the proposed supplemental dealership at 744 N. Federal Hwy would be deemed an "expansion" of the existing dealership, as opposed to an "additional" dealership. The Department further concluded that: (1) a license was not needed and hence would not be issued for the expansion of Vista's dealership into 744 N. Federal Hwy; (2) the opening of the dealership that Vista proposed to establish at 4401 W. Sample Rd, which would come into being as Vista's existing dealership expanded, could not be considered exempt from protest, as previously thought, for no "relocation" would be occurring; and (3) notice and an opportunity to protest would need to be provided with respect to 4401 W. Sample Rd before a license for an additional dealership at that location could be issued.
BMW NA and Vista each requested a hearing to challenge the Department's findings and conclusions, initiating, respectively, DOAH Case Nos. 03-2969 and 03-2970. These cases were subsequently consolidated, and Braman was allowed to intervene in them.
On September 18, 2003, while the above-mentioned administrative litigation was pending, Vista filed an application with the Department for modification of its license, to reflect the relocation of Vista's BMW dealership from 700 N.
Federal Hwy to 4401 W. Sample Rd. Vista asserted that the planned reopening at 4401 W. Sample Rd would not be subject to protest, noting in its cover letter to the Department, dated September 12, 2003, that BMW NA had previously "notified [the Department] of the applicability of [the Section 320.642(5)] exemption via correspondence . . . dated September 13, 2002."7
On September 30, 2003, before the final hearing in the consolidated administrative proceeding, the Department, BMW NA, and Vista (but not Braman) entered into a settlement agreement. Upon being advised of the settlement, the presiding administrative law judge (not the undersigned) closed DOAH's files in Case Nos. 03-2969 and 03-2970 and relinquished jurisdiction to the Department.
Pursuant to the referenced settlement agreement, Vista notified the Department by letter dated October 7, 2003, that Vista would cease all BMW dealership operations at 700 N. Federal Hwy at the close of business that day and would commence BMW dealership operations at 4401 W. Sample Rd on October 8, 2003. Promptly upon receipt of this notice, the Department modified Vista's motor vehicle dealer license to permit Vista to conduct BMW dealership activities at 4401 W. Sample Rd. This modification effectively "de-licensed" Vista as a BMW dealer at 700 N. Federal Hwy.
On October 7, 2003, as promised, Vista stopped selling and servicing BMW automobiles at 700 N. Federal Hwy. and moved its dealership to 4401 W. Sample Rd.8 To effect the move, Vista relocated its inventory of new and used BMW vehicles, along with other line-make used automobiles that had been taken in trade for BMW vehicles, plus BMW-specific equipment, tools, and parts. Employees of Vista's BMW dealership were transferred to the new worksite.
On October 8, 2003, Vista started selling and servicing BMW passenger cars and BMW light trucks at 4401 W. Sample Rd.9 It is undisputed that from October 8, 2003, through the final hearing in this cause, Vista did not conduct any BMW- related dealership operations at the N. Federal Hwy location. In other words, Vista's BMW dealership was continuously "closed" during that period of time.10
By letter dated October 15, 2003, in accordance with the settlement agreement referenced above, the Department notified BMW NA and Vista that it intended not to issue Vista a license to operate a BMW dealership at 744 N. Federal Hwy unless and until (a) Vista first relocated to 4401 W. Sample Rd and thereafter BMW NA gave the Department another notice of its intent to allow Vista to open a dealership at 744 N. Federal Hwy, which notice would, upon publication, create a new point of entry for substantially affected dealers to protest the latter
project; and (b) all other legal requirements for licensure were met, including the failure of any protest that might timely be filed.
BMW NA and Vista each timely challenged the Department's preliminary determination, initiating DOAH Case Nos. 03-4250 and 03-4277, respectively, which were consolidated and tried together before the undersigned on February 10, 2004. The resulting Recommended Order urged the Department to proceed in accordance with its previously announced intention. See BMW of North America, LLC v. Department of Highway Safety and Motor
Vehicles, DOAH Case Nos. 03-4250 and 03-4257, 2004 WL 833605,
*10 (Fla.Div.Admin.Hrgs. Apr. 15, 2004). On May 3, 2004, the Department adopted the Recommended Order as its Final Order. See Final Order No. HSMV 04-224-FOF-DMV (Fla.Dept. H.S.M.V. May 3, 2004).
As of the final hearing in this case, no new notice had been provided to the Department of BMW NA's intention to permit Vista to establish an additional BMW dealership at 700- 744 N. Federal Hwy. Nevertheless, the evidence introduced at hearing shows that, as of early May 2004, BMW NA and Vista were still planning for Vista someday to open a BMW dealership at the former location.
Vocabulary
To facilitate the ensuing discussion, it will be helpful to develop a vocabulary tailored to the facts and issues presented. As used herein, the term "source site" will refer to the location (i.e. the place) from which a dealership has been, or will be, moved. Thus, 700 N. Federal Hwy is (or is claimed to be) a source site.
The term "source dealership" shall mean a dealership that will be relocated to another place. Thus, a source dealership exists, as such, only at a source site. In this case, the BMW dealership that Vista operated at 700 N. Federal Hwy until October 7, 2003, was (or is claimed to have been) a source dealership.
The term "target site" shall refer to any location to
which a source dealership has been, or will be, moved. Here, then, 4401 W. Sample Rd is (or is claimed to be) a target site.
A dealership established, or proposed to be opened, at a target site will be called a "target dealership." Thus, a target dealership exists, as such, only at a target site. Vista's presently licensed BMW dealership at 4401 W. Sample Rd is (or is claimed to be) as target dealership.
It should be kept in mind that the terms "source dealership" and "target dealership" refer to two sides of the same coin——not to two separate coins. This is because, to speak
of relocating or moving a dealership from one place to another is to imply, necessarily, that the source dealership and the target dealership are in some meaningful senses the same dealership (call it the "source-target dealership"), located first at one place (the source site), then at another (the target site). Indeed, § 320.642(5) requires that the reopening dealership be the same dealership11 (if it is not a successor dealership12) for the exemption to apply.13 The bottom line is, if the source dealership and the target dealership are not the same dealership, then the exemption cannot apply. Id.
Imagining the source-target dealership as a unity is difficult, however, because one of the chief characteristics that define any dealership is its location. (Other distinguishing features include, without limitation, the identity of the dealer and the line-make vehicles being offered for sale.) Indeed, most people would consider a dealership located at one place to be separate and distinct from a dealership located somewhere else, even if the two were owned and operated by the same dealer and authorized to sell the same line-make vehicles. Of course, location cannot be moved, which raises the question: How can the source dealership and the target dealership really be the same dealership?
Without attempting to answer that question completely, it is clear that maintaining the unity of the source-target
dealership requires minimally that the source-target dealership have an effective market presence——that is, be licensed to operate and open for business——at but one place at a time, either the source location or the target location. In other words, however this "coin" is ultimately defined, logically it must be, at any given moment, either "heads" up or "tails" up, not heads and tails simultaneously. Therefore, whatever else a true "relocation" entails, i.e. however that term and its cognates are ultimately defined, it can be said at a minimum that a true relocation is not complete until the source dealership disappears as such, having been turned into the target dealership.
One more term before moving on: "backfill dealership" shall refer to a dealership that is or will be: (a) opened at a source site after the relocation from that site of the source- target dealership; (b) owned and operated by, or under the effective control of, the same dealer who owns and operates or effectively controls the source-target dealership, which dealership is now present in the marketplace solely as a target dealership; and (c) offering for sale the same line-make vehicles as the source-target dealership. In this case, the BMW dealership that Vista plans to open at 700-744 N. Federal Hwy would be a backfill dealership.
Having formulated a vocabulary, the central disputes in this case can easily be identified. It should be readily apparent that an attempt to establish a backfill dealership calls into question the genuineness of the previous relocation of the source-target dealership from the source site to the target site. This is because the opening of a backfill dealership results in the market presence of two symbiotic dealerships——an outcome not obviously distinguishable from that which would obtain if, instead of relocating the source-target dealership, the dealer had simply opened an additional dealership to complement his existing dealership. Put another way, to continue with the earlier metaphor, the net result is the presence of two coins where before there was one. The question thus becomes whether these coins should be labeled, respectively, (a) backfill dealership and source-target dealership or (b) existing dealership and additional dealership.
Incipient Policies
BMW NA and Vista are the first distributor and dealer to attempt to execute an exempt relocation-backfill maneuver in Florida. In the course of responding to the issues raised by this novel use of Section 320.642(5), the Department has developed several policies that interpret this exemption as applied to the facts at hand.
For purposes of discussion, the relevant incipient policies can be fairly described14 as follows:
A dealership that is opened at a site contiguous to the source site from which a source dealership of the same line-make was relocated will be treated as a backfill dealership, provided the two dealerships are under common ownership or control.
Establishing a backfill dealership does not necessarily defeat a prior claim of relocation-exemption; rather, under certain circumstances, a dealer can take advantage of the relocation-exemption and also establish a backfill dealership.
A backfill dealership does not defeat a prior claim of relocation-exemption if the following requirements are met:
There was a "relocation in fact" of the source dealership from the source site to the target site. A "relocation in fact" has occurred when, at a minimum, all of the following have happened:
The source dealership's license was modified to show that dealership operations are now permitted only at the target site.
Dealership operations at the source site completely stopped (i.e. the source dealership closed and did not reopen in the ordinary course of business).
There was an actual, physical move that entailed, but was not necessarily limited to, the relocation of inventory to the target site.
Notice regarding the establishment of the backfill dealership was given to the Department after the "relocation in fact" had occurred.
Dealership operations at the source site were not resumed (i.e. the backfill dealership did not open to the public for business) until after the protest period associated with the backfill dealership formally concluded and a license authorizing the backfill dealership was issued.
Braman's Theory of the Case
The linchpin of Braman's theory of the case is its contention that, for a relocation to fall within the Section 320.642(5) exemption, the distributor and the dealer claiming the exemption must have formed, as of the date of notifying the Department about the relocation, a specific intent regarding the dealer's future plans vis-à-vis the source site——or at least they must not have formed certain intentions relative thereto. Stating the requisite intention affirmatively, Braman suggests that the distributor and dealer must intend to "abandon" the source site, i.e. to leave the source site with the intention of never again establishing another dealership there of the same line-make as the source dealership. Alternatively, Braman argues that, at a minimum, the distributor and dealer must not
have formed the intention of opening a backfill dealership.
On the foregoing premise, Braman argues that BMW NA and Vista never intended for Vista to "relocate" its BMW dealership to 4401 W. Sample Rd within the strictures of Section 320.642(5), because they intended, alternatively, (a) for
Vista's BMW dealership at N. Federal Hwy to remain open and never close; (b) for Vista's BMW dealership at N. Federal Hwy to open simultaneously with the opening of a BMW dealership at 4401
W. Sample Rd; or (c) for Vista's BMW dealership at N. Federal Hwy to open as soon as possible after the opening of a BMW dealership at 4401 W. Sample Rd. Braman asserts that the intentions of BMW NA and Vista render the BMW dealership at 4401
N. Federal Hwy ineligible for the relocation-exemption.
Braman then goes a step farther, contending that BMW NA's September 13, 2002, notice to the Department, which announced that Vista would relocate its BMW dealership from 700
N. Federal Hwy to 4401 W. Sample Rd, was false and even fraudulent. Proof of this alleged deception, according to Braman, reached the Department in May 2003 in the form of BMW NA's notice regarding the proposal to establish Vista's backfill dealership at 744 N. Federal Hwy. Braman claims that when the Department received Braman's May 5, 2003, notice, it should immediately have published a notice in the Florida
Administrative Weekly that Vista's BMW dealership at 4401 W. Sample Rd was subject to protest.
Although Braman has expended a great deal of effort trying to depict BMW NA's September 13, 2002, notice as "false" and accusing BMW NA and Vista of intentionally deceiving the Department regarding their "true" plans, Braman's "deception
theory" is subordinate to its contention that the relocation- exemption can only be claimed properly by distributors and dealers having a specific intent. That Braman's "deception theory" is dependent on its "specific intent theory" is shown by observing that if the specific intent theory were legally correct, and if further (as Braman asserts) BMW NA and Vista did not in fact have the requisite specific intent, then it would be irrelevant whether BMW NA and Vista also sought to deceive the Department15, for their intentions regarding 700-744 N. Federal Hwy would render Section 320.642(5) inapplicable, no matter what.16 On the other hand, if Braman were wrong concerning the specific intent requirement it advocates, then BMW NA's notice to the Department regarding the relocation of Vista's BMW dealership could not have been false in the way Braman contends it was.
In short, then, Braman effectively has staked its case on the proposition that the relocation-exemption requires a specific intent. The deception theory lends little, if any, support to Braman's primary position and therefore will not be given further attention herein.
That said, Braman's "specific intent theory" logically concedes an important point, by necessary implication, which is that backfill dealerships do not necessarily defeat prior assertions of the relocation-exemption. This is because if the
establishment of a backfill dealership always undid the dealer's previous reliance on the relocation-exemption, thereby exposing his target dealership to protest, then the dealer's intentions regarding the source site, whatever they might have been, would never be relevant. Simply put, to urge explicitly (as Braman does) that having the "wrong" intentions regarding the source site makes Section 320.642(5) inapplicable is to admit implicitly that harboring the "right" intentions regarding the source site keeps alive the possibility that the dealer can take advantage of the relocation-exemption and also establish a backfill dealership some day. Consequently, having put all of its eggs in the specific intent basket, Braman is not in a position to disagree with the Department's Incipient Policy "B" as described above.17
Indeed, while Braman has taken issue broadly with most of the Department's incipient policies, its only promising lines of attack proceed along two fronts. One is a somewhat secondary thrust: Braman complains that the Department's incipient policies permit the opening of a backfill dealership within 12 months after the closure of the source dealership, which opening (Braman argues) would itself be exempt from protest under Section 320.642(5). Thus, Braman asserts that the Department's Incipient Policy "C(3)," which purports to make backfill
dealerships "protestable," contravenes the plain statutory language.
With regard to this point, while the possibility certainly exists, it is not altogether clear that the Department would permit a backfill dealership to open within 12 months after the closure of a source dealership, because the Department has not been confronted with such a scenario. Moreover, there is no reasonable possibility that Vista will open a BMW dealership at 700-744 N. Federal Hwy on or before October 7, 2004. Therefore, although Braman has raised an interesting question about Incipient Policy "C(3)," which the undersigned will revisit below, the issue cannot be outcome determinative, because it addresses a contingency that has not occurred (and will not occur) in this case.
Braman's real dispute with the Department, when all is said and done, is that the Department has chosen not to impose the specific intent requirement that Braman champions. Indeed, with the possible exception of some modifications to Incipient Policy "C(3)" to correct for the potential problem just identified, Braman could not object to the Department's incipient policies if they included a "C(1)(d)" as follows:
As of the date the Department was notified about the relocation, the distributor and the dealer who claimed the relocation- exemption either specifically intended for the dealer to leave the source site and
never again open another dealership there of the same line-make as the source dealership or, alternatively, had no intentions of establishing a backfill dealership.
The question whether Braman's specific intent theory holds thus becomes the threshold legal issue. If the answer were negative, then Braman cannot prevail here.18 If the answer were affirmative, it would then be necessary to make ultimate factual determinations regarding BMW NA and Vista's intentions concerning 700-744 N. Federal Hwy.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The parties have stipulated that Braman, being the one disputing the Department's determination regarding the non- "protestability" of Vista's BMW dealership at 4401 W. Sample Rd, has the burden of going proving its allegations by a preponderance of the evidence. See, e.g., Environmental Trust v. State Dept. of Environmental Protection, 714 So. 2d 493, 497 (Fla. 1st DCA 1998)("A party who asserts a disputed claim before an administrative agency generally has the burden of going forward with the evidence as well as the ultimate burden of establishing the basis for the claim.").19 To the extent the Department seeks to validate agency action based upon incipient
policies, the Department has the burden of proving the reasonableness and factual accuracy thereof. See, e.g., St.
Francis Hosp., Inc. v. Department of Health and Rehabilitative Services, 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989).
Turning to the merits, the entirety of the exemption statute is quoted in endnote 6, but for easy reference here again is the pertinent sentence thereof:
The opening or reopening of the same or a successor motor vehicle dealer within 12 months shall not be considered an additional motor vehicle dealer subject to protest within the meaning of this section, if [certain other conditions are met.20]
§ 320.642(5), Fla. Stat.
As used in subsection (5), the noun "opening" clearly refers to an initial act or instance of becoming open and hence applies when the actor is a "successor motor vehicle dealer." Conversely, the noun "reopening," which connotes a second or new beginning, must apply when the actor is the "same . . . motor vehicle dealer." If the exemption applies in this case, therefore, it is because Vista reopened at 4401 W. Sample Rd the same dealership that once did business at 700 N. Federal Hwy.
The statute does not define "reopening" (or "opening"). It is necessarily implicit in the term "reopening," however, that some preceding act of closure must have occurred.21 Indeed, the preceding act of closure is the event that triggers
the 12-month period within which the reopening must occur. In other words, to fall within the exemption, the dealer must "reopen" his dealership within 12 months after previously having "closed" this same dealership. The statute thus sets up a dichotomy between "closed" and "reopened" but leaves to regulation and litigation the work of deciding what these terms should mean in practice.
The Department has chosen to interpret the exemption, by rule, so as to include the relocation of an existing dealership among the events potentially qualifying for the exemption. Florida Administrative Code Rule 15C-7.004 provides in pertinent part as follows:
(1) Purpose and Scope. The purpose of this rule is [among other things] to . . . clarif[y] the conditions for licensing a supplemental location and for the relocation and reopening of existing dealerships.
* * *
Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership.
* * *
(b) An application for change of address by an existing dealer under this section shall be filed on form HSMV 84712, Application For Change of Location (Address) Of Dealer In Motor Vehicles, Mobile Homes or Recreational Vehicles, which is hereby adopted by reference, provided by the Department. The dealer shall indicate which provision of Section 320.642(5), Florida Statutes, if
any, it contends exempts the proposed location from consideration as an additional dealership.
(Emphasis added.)
It is doubtful that the Rule's drafters considered the possibility of a backfill dealership; rather, they most likely assumed, when speaking of the relocation of an existing dealership, that there would be a zero-sum relationship between the source site and the target site with respect to dealerships of the same line-make as the source-target dealership. Put another way, the drafters probably presupposed that the relocation of an existing dealership pursuant to Section 320.642(5), being tantamount to a routine change of address, would be a relatively minor event in the relevant market, which in any event would not increase the number of dealers representing any given line-make of automobile.
Such an assumption is understandable. The logic of the exemption statute lies in the commonsense notion that if a dealership which has closed for some reason happens to reopen relatively quickly (within 12 months) at a location not too far from where it was, then it is not necessary to conduct an administrative proceeding to determine "adequacy of representation" in the relevant market (which is the purpose of a protest), for the reopening merely restores the market to the status quo ante——at a time before the market has fully adjusted
to the closure. In other words, the "need" for reopening the recently closed dealership in the relevant market is effectively presumed from the fact of the market's late loss of that same dealership.
The statutory logic makes sense, of course, only if the "reopening" (or target) dealership is the "same" dealership as the closed (or source) dealership——which is why the exemption applies only when the same dealership reopens. The statute, however, does not explicitly define what makes two dealerships the same dealership for purposes of the exemption, and neither does Rule 15C-7.004. Rather, if a dealer who has closed one dealership opens another dealership of the same line-make within
12 months of the closure, Section 320.642(5) simply assumes that the newer dealership is the same as the older one, provided the newer dealership is located within the geographical boundaries prescribed in subparts (a) through (d). This assumption is consistent with the statutory logic mentioned above——that, under such circumstances, the reopening merely restores the relevant market to the status quo ante, before the market has fully adjusted to the loss of the dealership in question.
Despite this underlying assumption, Section 320.642(5) does not expressly prohibit the opening of a backfill dealership, and the prospect of a backfill dealership's opening is not so inconsistent with the statutory logic that an implicit
prohibition must be found via statutory interpretation. Nevertheless, the opening of an apparent backfill dealership within 12 months after the closure of the putative source dealership does create a dilemma: namely, which of the two resulting dealerships is the same dealership as the one that existed before there were two? The answer is important because only the same dealership can reopen without first being exposed to protest.
Braman's answer, as we have seen, is that if the distributor and dealer intended, as of the date of notifying the Department regarding the purported relocation, to reestablish dealership operations at the location of the dealership that was due to "close," then there was not (and never could be) a "relocation in fact." Consequently, according to Braman, where the "wrong" intentions are manifested, the putative backfill dealership cannot ever be considered a backfill dealership, but rather must always be viewed as the same old, non-"protestable," "existing" dealership, which in actuality was never relocated, even if it were closed for some period of time. Since, to complete Braman's argument, there was no "relocation in fact," there can be no target dealership, but only an "additional" dealership at the putative target site, different from the older one, and hence subject to protest.
The problem with Braman's argument is that it fails to take account of a bright statutory line, which is that a dealer who has once closed a dealership cannot reopen that same dealership more than 12 months after the closure; rather, after one year, such dealer can only open an "additional" dealership, subject to protest. Section 320.642(5) plainly does not allow a dealer who has failed to reopen within 12 months to claim the exemption notwithstanding such failure just because he really and truly intended to reopen within one year. Thus, it is clear that two dealerships cannot be the same dealership for purposes of the relocation-exemption, regardless of their respective locations, if the newer one was opened more than 12 months after the closure of the older dealership, irrespective of anyone's intent.
The upshot is that, when a dealership closes, neither the intentions of the dealer who operated that dealership nor those of his distributor are relevant to the question whether a dealership that opens more than 12 months after such closure is the same as the previously closed dealership: as a matter of law the two dealerships are different, and the new one is a "protestable" additional dealership.
In the instant case, it is undisputed that Braman's BMW dealership at 700 N. Federal Hwy closed for business on October 7, 2003. It is also undisputed that the very next day——
well within 12 months after the closure of the Vista's BMW dealership on N. Federal Hwy——Vista opened another BMW dealership at 4401 W. Sample Rd. And it is undisputed that this new location falls within the geographical boundaries prescribed in subparts (a) through (d) of Section 320.642(5), Florida Statutes. Thus, the exemption statute allows the Department to assume that the BMW dealership at 4401 W. Sample Rd is the same one which existed at 700 N. Federal Hwy——unless, that is, a backfill dealership would open at 700 N. Federal Hwy (or a contiguous property) on or before October 7, 2004, in which event the Department would need to decide which of the two resulting dealerships is the same dealership as the one that existed before there were two, for only that one could enjoy an exempt reopening.
As it happens, the Department will not be called upon to make that potentially difficult decision because the BMW dealership that BMW NA and Vista would like to open at 700-744
N. Federal Hwy, being unlicensed, could not have opened lawfully as of this writing in September 2004 and as a practical matter cannot lawfully open on or before October 7, 2004, when it will still be unlicensed. Therefore, if and when Vista opens a BMW dealership at 700-744 N. Federal Hwy, such dealership will be, as a matter of law, an additional dealership subject to protest, not the same dealership that previously existed at the N.
Federal Hwy location, regardless of BMW NA and Vista's intentions regarding dealership operations there, whatever those intentions were. The possibility——even probability——that Vista might open an additional BMW dealership at 700-744 N. Federal Hwy, which dealership would necessarily be different (for exemption purposes) than the one that previously existed there, does not require the Department to reverse its conclusion that Vista's existing BMW dealership at 4401 W. Sample Rd resulted from the relocation and reopening of its former BMW dealership at 700 N. Federal Hwy.
That said, the undersigned believes that the Department's incipient policies do not presently provide an adequate framework for deciding which of the two resulting dealerships is the same dealership as that which existed before there were two, where a backfill dealership opens within 12 months after the closure of the putative source dealership. Thus, if Vista had reopened a BMW dealership at 700-744 N. Federal Hwy before October 7, 2004, which it did not, then the undersigned would have been unable, on the present record, to make an ultimate determination regarding whether the BMW dealerships located at 700-744 N. Federal Hwy and 4401 W. Sample Rd should be labeled, respectively, (a) backfill dealership and source-target dealership or (b) existing dealership and additional dealership.
This deficiency is not detrimental to the Department's position here, however, because it relates to an unrealized contingency. The Department is entitled to work out a solution to this abstract problem if and when it materializes. In the meantime, to better reflect the particular facts and circumstances currently under consideration, the undersigned recommends that the Department accept, through the entry of a final order in this case, the following modification of its Incipient Policy "C(3)":
Dealership operations at the source site were not resumed (i.e. the backfill dealership did not open to the public for business) until after the protest period associated with the backfill dealership formally concluded and a license authorizing the backfill dealership was issued; provided, however, that in no event shall the backfill dealership have opened within 12 months after the closure of the source dealership, unless the dealer first demonstrated to the Department's satisfaction that the backfill dealership was not the same as the source-target dealership.
In sum, then, it is concluded that, where a backfill dealership will open, if at all, more than 12 months after the closure of the source dealership, as here, Section 320.642(5) does not require an examination of the distributor and dealer's specific intentions regarding the use of the source site to determine whether there was, previously, a "relocation in fact." As a result, the Department cannot be faulted for choosing not
to consider specific intent a dispositive factor in deciding whether BMW NA and Vista properly invoked the relocation- exemption in connection with Vista's reopening at 4401 W. Sample Rd.
Ultimately, therefore, it is concluded that Vista's BMW dealership at 4401 W. Sample Rd should not be considered an additional dealership subject to protest. Rather, pursuant to Section 320.642(5), Florida Statutes, Vista's new BMW dealership was exempt from protest and will remain exempt from protest even if Vista opens an additional BMW dealership at 700-744 N. Federal Hwy. (Of course, any dealership that Vista opens on N. Federal Hwy will be subject to protest.)
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order confirming that Vista's new BMW dealership at 4401 W. Sample Rd, having resulted from the relocation and reopening of Vista's former BMW dealership at 700 N. Federal Hwy, which reopening occurred within 12 months after the closure of the former dealership and at a location meeting the geographical requirements of Section 320.642(5)(b), Florida Statutes, cannot be considered an additional motor vehicle dealership subject to protest.
DONE AND ENTERED this 10th day of September, 2004, in Tallahassee, Leon County, Florida.
S
JOHN G. VAN LANINGHAM
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2004.
ENDNOTES
1/ The trade associations produced Dan O'Malley, who appeared as a witness at hearing via telephone.
2/ BMW NA is an automobile "distributor" and "licensee." See § 320.60(5), (8), Fla. Stat.
3/ The term "satellite dealership" is not a statutory term of art but rather is used in the context of BMW business operations to mean a dealership location secondary to an existing dealership and lacking various indicia of independence, such as a separate dealership agreement and an assigned primary market area, associated with a primary BMW dealership site. Under § 320.642, Fla. Stat., a BMW satellite dealership constitutes an "additional" dealership.
4/ Dealers who meet certain specific standing requirements are entitled to protest a proposed additional or relocated motor vehicle dealership. The issue in such protests, which are tried before DOAH, is whether the existing dealers in the relevant community or territory are providing adequate representation of
the line-make automobiles to be sold or serviced by the proposed dealership. See § 320.642(2), Fla. Stat.
5/ Braman and Vista are "motor vehicle dealers" as defined in
§ 320.60(11), Fla. Stat., and each is a franchised BMW passenger car dealer and BMW light truck dealer.
6/ Section 320.642(5), Florida Statutes, provides as follows:
The opening or reopening of the same or a successor motor vehicle dealer within 12 months shall not be considered an additional motor vehicle dealer subject to protest within the meaning of this section, if:
The opening or reopening is within the same or an adjacent county, is within 2 miles of the former motor vehicle dealer location,
The proposed location is further from each existing dealer of the same line-make than the prior location is from each dealer of the same line-make within 25 miles of the new location,
The opening or reopening is within 6 miles of the prior location and, if any existing motor vehicle dealer of the same line-make is located within 15 miles of the former location, the proposed location is no closer to any existing dealer of the same line-make, or
The opening or reopening is within 6 miles of the prior location and, if all existing motor vehicle dealers of the same line-make are beyond 15 miles of the former location, the proposed location is further than 15 miles from any existing motor vehicle dealer of the same line-make.
Any other such opening or reopening shall constitute an additional motor vehicle dealer within the meaning of this section.
7/ Interestingly, Vista's cover letter did not mention the fact that the Department previously had rejected this very claim of exemption, triggering the then-ongoing administrative proceeding.
8/ Vista continued to operate a preexisting, separately licensed Volkswagen dealership at 700 N. Federal Hwy.
9/ Vista continued to operate a preexisting, separately licensed MINI dealership at that location.
10/ This is not to suggest that Vista has since resumed BMW dealership operations at N. Federal Hwy. The finding above simply acknowledges the limits of the evidence in the record. To be sure, the undersigned has no reason to believe (and in fact doubts) that Vista commenced unlicensed BMW dealership operations at its N. Federal Hwy location after the final hearing in this cause.
11/ Although the statute literally requires that the opening or reopening be of the same dealer, it is reasonably clear from the context that the legislature meant dealership. Since neither party has argued for a contrary legislative intent in this regard, the undersigned will not burden this order with an exegesis in support of the proposition that the nouns "dealer" and "dealership," despite being separately defined statutory terms of art, are fungible within the confines of § 320.642(5), Fla. Stat.
12/ The subsequent discussion will not continue to account for alternative scenarios associated with successor dealerships, for such possibilities have no bearing on the issues at hand.
13/ If the source dealership and the target dealership were not essentially the same dealership, then it could hardly be said that a dealership had been relocated, as opposed to, say, some inventory.
14/ The text sets forth what the undersigned has found to be fair and accurate statements of the policies underlying the Department's actions, as ascertained from the sometimes conflicting evidence in the record. Note that the undersigned's summary of the Department's policies assumes familiarity with the vocabulary defined earlier in the text. Note, too, that, by stating the policies in general terms——and more formally than
the Department has done, the undersigned does not find or imply that the Department has developed rules-by-definition. To the contrary, the undersigned has concluded that these are incipient policies in the truest sense, meaning policies that are only now emerging, being developed and shaped through the crucible of this controversy, and which have yet to crystallize into definitive, consistently applicable statements.
15/ Of course, BMW NA and Vista's allegedly fraudulent intent might be relevant in a different kind of case, e.g. one where the Department was seeking to revoke Vista's motor vehicle dealer license on the ground that it was fraudulently obtained, see § 320.27(9)(a)1., Fla. Stat., but this is quite obviously not such a case. Although it should go without saying, the relevance of a particular fact for the purposes of one proceeding is not determinative of that same fact's relevance for the purposes of another proceeding.
16/ It should be pointed out as well that, even if Braman were correct concerning the necessity of having a specific intent to claim the relocation-exemption, the conclusion would not necessarily follow that BMW NA's notice to the Department was "false." For that to be so, BMW NA would have needed to know about the specific intent requirement and to understand that such requirement made it impossible for Vista to proceed with an exempt relocation. Otherwise, BMW NA could have believed in good faith that it and Vista's reliance on Section 320.643(5) was legitimate notwithstanding their intentions with respect to the N. Federal Hwy location.
17/ Theoretically, Braman could have argued in the alternative that even if a specific intent regarding relocation were not required to invoke § 320.642(5), Vista's BMW dealership at 4401
W. Sample Rd would be "protestable" nevertheless because of some other alleged deficiency, but in actuality Braman did not advance such an alternative argument.
18/ The evidence shows——and Braman does not dispute——that Vista has effected a "relocation in fact" in accordance with Incipient Policy "C(1)." It is also undisputed that Vista did not (as of the final hearing) violate Incipient Policy "C(3)," and therefore Vista's dealership at 4401 W. Sample Rd cannot be deemed "protestable" on that account. Finally, Vista has not yet (as of the final hearing) given notice to the Department pursuant to Incipient Policy "C(2)"; hence its prior assertion
of the relocation-exemption cannot be nullified for noncompliance therewith.
19/ The undersigned would have been receptive to the argument that, in this case, the burden of proof should fall on the party relying on Section 320.642(5), Florida Statutes, see, e.g., Ratley v. Batchelor, 599 So. 2d 1298, 1305 (Fla. 1st DCA 1991)(general rule is that burden of proving exemption generally rests on one who claims its benefits)(collecting cases), but no one has taken such a position. In any event, the outcome here does not turn on the allocation of the burden of proof.
20/ It is undisputed that Vista's BMW dealership at 4401 W. Sample Rd satisfies subpart (b) of subsection (5) and hence meets the "other conditions."
21/ In situations involving the opening of a successor dealer, a preceding act of closure is likewise necessarily implied——the closure of the predecessor dealer, i.e., the one being replaced.
COPIES FURNISHED:
Loula M. Fuller, Esquire Myers & Fuller, P.A. Post Office Box 14497
2822 Remington Green Circle Tallahassee, Florida 32317-4497
Michael J. Alderman, Esquire Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room A-432 2900 Apalachee Parkway
Tallahassee, Florida 32399
Dean Bunch, Esquire
C. Everett Boyd, Jr., Esquire Sutherland, Asbill & Brennan, LLP 2282 Killearn Center Boulevard Tallahassee, Florida 32309-3576
John W. Forehand, Esquire Walter E. Forehand, Esquire Lewis, Longman & Walker, P.A.
125 South Gadsden Street, Suite 300 Tallahassee, Florida 32301
Enoch J. Whitney, General Counsel Department of Highway Safety
and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway
Tallahassee, Florida 32399
Carl A. Ford, Director Division of Motor Vehicles
Department of Highway Safety and Motor Vehicles
Neil Kirkman Building, Room 439 Tallahassee, Florida 32399-0600
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 04, 2004 | Agency Final Order | |
| Sep. 10, 2004 | Recommended Order | A new BMW dealership resulted from the relocation and reopening of the former BMW dealership, within 12 months after closure of the former dealership at a location meeting statutory requirements. The new dealership cannot be considered subject to protest. |
