87-003093 North Palm Lincoln-Mercury, Inc., And Ford Motor Company vs. Delray Lincoln-Mercury, Inc., And Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Thursday, January 28, 1988.

Summary: Whether petitioner's application to be licensed as a new ford dealership should be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTH PALM LINCOLN-MERCURY, )

INC., and FORD MOTOR COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3093

)

DELRAY LINCOLN-MERCURY, INC., )

PAHOKEE FORD, INC., and )

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

The Division of Administrative Hearings, by its duly designated Hearing

Officer James E. Bradwell, has considered the Joint Motion for Summary

Recommended Order Dismissing Delray and Pahokee, written submittals by all

parties, and oral argument on September 17, 1987, and January 6, 1988. After

due deliberation, that motion is GRANTED as stated below.

APPEARANCES

For Petitioner: John Radey, Esquire and

North Palm Lincoln Elizabeth McArthur, Esquire

Mercury, Inc. Aurell, Fons, Radey & Hinkle

101 North Monroe Street, Suite 1000

Post Office Drawer 11307

Tallahassee, Florida 32302

[phone]

For Petitioner: Dean Bunch, Esquire

Ford Motor Company Rumberger, Kirk, Caldwell, Cabaniss

& Burke

101 North Monroe Street, Suite 900

Tallahassee, Florida 32301

[phone]

For Respondent: Curtis L. Witters, Esquire and

Delray Lincoln- Sarah Mayer, Esquire

Mercury, Inc. Glickman, Witters and Marell

1870 Forest Hill Boulevard, Suite 203

West Palm Beach, Florida 33406-6094

For Respondent: Mr. Keith Horsley, President

Pahokee Ford, Inc. 1/ Pahokee Ford, Inc.

154 East Main Street

Pahokee, Florida 33476

BACKGROUND

North Palm Lincoln-Mercury, Inc. ("North Palm") submitted its application

to the Department for a motor vehicle dealer license.

The Department, by letter dated July 22, 1987, forwarded a letter of

protest dated June 18, 1987, from Respondent Pahokee Ford, Inc. ("Pahokee"). In

addition the Department forwarded a letter referred to by the Department as

potentially "stale" dated November 23, 1986, from Delray Lincoln-Mercury, Inc.

("Delray"). The Department requested the Division to determine whether Delray's

letter constituted "an acceptable protest".

The Department forwarded these protest letters under authority of section

320.642, Florida Statutes, and Rule 15C- 1.008, Florida Administrative Code.

North Palm and Ford Motor Company ("Ford") filed a Joint Motion for Summary

Recommended Order Dismissing Delray and Pahokee. By letter dated November 30,

1987, Pahokee gave notice that they had no objection to the Lincoln-Mercury

dealership being established in North Palm Beach and that it wanted to be

removed from the list of Respondents in this case.

As to Delray, subsequent to the filing of the Joint Motion for Summary

Recommended Order, Delray submitted a letter of protest dated October 5, 1987,

that "is in response to a letter dated June 4, 1987", from the Department

notifying Delray of its entitlement to protest. The motion for summary

recommended order was argued orally on September 17, 1987, and subsequently

additional argument was requested by an order entered November 23, 1987.

Thereafter, written argument was submitted by North Palm and Ford as well as

Delray and additional oral argument was considered in January 6, 1988.

ISSUE PRESENTED

The issue presented is whether Delray's protest is an acceptable protest

under section 320.642, Florida Statutes, and Rule 15C-1.088, Florida

Administrative Code.

FINDINGS OF FACT

1. North Palm filed an application with the Department seeking licensure

as a franchised dealer for Ford. By its application, North Palm sought the

issuance of a license to operate a new dealership in Palm Beach County.

2. By letter dated June 4, 1987, the Department gave notice to potentially

affected dealers, including Pahokee and Delray, that they could protest the

establishment of North Palm.

3. Pahokee responded to the June 4, 1987, letter in a timely manner on

June 18, 1987, and indicated that it wished to formally protest.

4. Pahokee by written notice dated November 30, 1987, has withdrawn its

protest.

5. Delray by letter dated November 23, 1986, wrote to the Department and

indicated that it was "totally against any additional Lincoln-Mercury

dealerships in Palm Beach County."

6. By letter dated May 12, 1987, from Delray to Ford, copied to the

Department, Delray confirmed the position stated in its November 23, 1986,

letter.

7. By letter dated October 5, 1987, Delray acknowledged receipt of the

Department's June 4, 1987, letter inviting protests and further confirmed its

letters of November 23, 1986, and May 12, 1987. Delray also confirmed its

receipt of the June 4, 1987, letter in its written arguments submitted to the

hearing officer dated December 3, 1987.

8. The June 4, 1987, letter received by Delray states in its entirety as

follows:

This office is in receipt of a

preliminary filing of an

application from North Palm Lincoln

Mercury, Inc., 3626 Northlake

Boulevard, Lake Park, Florida

33403 to sell new Lincolns and

Mercurys in Palm Beach, County.

Review of our data files indicate

that your organization has filed a

Letter of "Advance Protest" for

Palm Beach County on or about

November 23, 1986. This letter

hereby serves notice that we will

need a current commitment regarding

a Letter of Protest or No Protest

in order to review the application.

Therefore, if we do not receive a

Letter of Commitment from your

organization within thirty days of

this date, we will consider that

you do not protest establishing of

the new proposed Lincoln Mercury

dealership.

Any Letters of Protest or No

Protest should be directed to the

attention of Charles J. Brantley,

Director, Division of Motor

Vehicles, Neil Kirkman Building,

Room B-439, Tallahassee, Florida

32399-0600.

An early reply would be appreciated

to assist in expediting this

matter.

This letter clearly put Delray on notice of its opportunity to protest and

cautioned that if no protest were received within the 30 day period following

the June 4, 1987, letter, then the Department would consider that Delray did

"not protest establishing of the new proposed Lincoln-Mercury dealership."

Delray did not timely respond to the Department's June 4, 1987 letter and it is

concluded that Delray's advance protest letters of November 23, 1986 and May 12,

1987, are not acceptable letters of protest since it was clearly afforded a

point of entry in this proceeding within the 30 day period subsequent to June 4,

1987.

9. Finally, Delray's protest must be dismissed as untimely once Pahokee

was dismissed as a party Respondent in this proceeding by an Order of Dismissal

dated January 5, 1988. Therefore, the Department is without authority to

consider further any issue relating to the untimely protest of Delray. See

Humana of Florida, Inc. v. Department of Health and Rehabilitative Services, 500

So.2d 186, 187 (Fla. 1st DCA 1986) review denied, 506 So.2d 1041 (Fla. 1987).

The courts have held that before an agency has review jurisdiction, a timely

petition must be filed and conversely, where a petition is withdrawn, agency

jurisdiction ceases to exist. In Orange County v. Debra, Inc., 451 So.2d 868

(Fla. 1st DCA 1984), Debra Inc. petitioned for rulemaking under section

120.54(5), Florida Statutes but withdrew its petition before the agency could

act. The Court held that withdrawal of the petition divested the agency of

jurisdiction to proceed. Likewise, in State, Department of Health and Human

Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979), intervenors who became

parties to a rulemaking process after the 14 day notice had lapsed lost standing

when the original Petitioners lost their standing.

10. In this case, Delray filed its protest dated October 5, 1987, that was

responsive to the Department's letter dated June 4, 1987 notifying Delray of its

entitlement to protest. Delray therefore joined the proceeding subject to the

action of the original protestant (Respondent). When Pahokee withdrew its

protest by giving notice that it no longer objected to the establishment of a

Lincoln-Mercury dealership in North Palm Beach, no proceeding now exists in

which Delray can participate. To conclude otherwise would vest in Delray

greater status than the original protestant, Pahokee. Accordingly, Delray's

untimely protest must be dismissed.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this proceeding. Section 120.57(1), Florida

Statutes.

12. The parties do not contest the facts stated above and all facts not

admitted were construed most favorably to Delray.

13. The October 5, 1987, Delray protest letter responds to the June 4,

1987, letter of the Department, but it is too late to constitute a valid

protest. Delray was given a point of entry and did not timely request an

administrative hearing. It thereby waived its right to a hearing. Dickerson,

Inc. v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981).

14. As to the letters received by the Department prior to the Department's

June 4, 1987, letter providing a point of entry, those letters are similarly not

valid to protest the application of North Palm. The Department specifically put

Delray on notice by its June 4, 1987, letter and specifically stated that the

Department would proceed as if Delray did not protest if Delray did not submit a

protest letter within the 30 day period subsequent to June 4, 1987. By not

submitting a letter in that time period, Delray waived its right to an

administrative hearing. Rule 28-5.111(2), made applicable by Rule 15-2.001,

Florida Administrative Code, specifically states that the Department must

determine that where a putative protestant fails to request a hearing during the

notice period, then the putative protestant "shall have waived his right

subsequently to request a hearing on such matters."

15. While advance protests may be sufficient in some instances, Ajax

Construction, Inc. v. State Department of Corrections, 413 So.2d 779 (Fla. 1st

DCA 1982), the court in that case specifically held that where an agency gave

notice of the waiver unless the advance protests were confirmed by a protest in

the period after the point of entry was offered, then a waiver will have

occurred. The notice in this case falls squarely into the rule of the Ajax

case. Ajax requires a conclusion that Delray waived its rights because the June

4, 1987, letter clearly states that the premature protest of Delray will be

disregarded by the Department unless a new protest is filed.

RECOMMENDATION

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

RECOMMENDED:

Delray's protest be dismissed as untimely and the Department proceed to

grant North Palm's application based on an absence of any valid protests.

DONE and ORDERED this 28th day of January, 1988, in Tallahassee, Florida.

___________________________________

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of January, 1988.

ENDNOTE

1/ Pahokee was dismissed as a Respondent by Order dated January 5, 1988.

COPIES FURNISHED:

John Radey, Esquire

Elizabeth McArthur, Esquire

Aurell, Fons, Radey & Hinkle

101 N. Monroe Street, Suite 1000

P. O. Drawer 11307

Tallahassee, Florida 32302

Dean Bunch, Esquire

Rumberger, Kirk, Caldwell,

Cabaniss & Burke

101 N. Monroe Street, Suite 900

Tallahassee, Florida 32301

Jill MacDonald, Esquire

Office of General Counsel

Ford Motor Company

The American Road

Dearborn, Michigan 48121

Curtis L. Witters, Esquire

Sarah Mayer, Esquire

Glickman, Witters and Marell

1870 Forest Hill Boulevard

Suite 203

West Palm Beach, Florida 33406-6094

Leonard R. Mellon, Executive Director

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0500