01-004650 Cannon Automotive Group, Inc. vs. General Motors Corporation And Big Oaks Buick Pontiac Gmc, Inc. Status: Closed Recommended Order on Friday, August 30, 2002.

Summary: Proper method to measure within two mile exemption for relocation: issue of first impression--no rule. Administrative Law Judge selected encircled radius to encircled radius as appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REGAL LAKELAND, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4495

)

GENERAL MOTORS CORPORATION AND )

BIG OAKS BUICK PONTIAC GMC, )

INC., )

)

Respondents. )

)

CANNON AUTOMOTIVE GROUP, INC., )

)

Petitioner, )

)

vs. ) Case No. 0 1 - 4650

)

GENERAL MOTORS CORPORATION AND )

BIG OAKS BUI CK PONTIAC GMC, )

INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came before the Division of

Administrative H earings for a final hearing on May 24, 2002, in

Lakeland, Florida, before Administrative Law Judge, Fred L.

Buckine.

APPEARANCES

For Petitioner James R. Meyer, Esquire

Regal Lakeland: 225 Central Avenue, Suite 1

Post Office Box 1356

Lakeland, Florida 33831 - 1356

For Petitioner John W. Forehand, Esquire

Cannon Automotive Lewis, Longman & Walker, P.A.

Group, Inc.: 125 South Gadsden Street

Suite 300

Tallahassee, Florida 32301

David A. Mille r, Esquire

Peterson & Myers, P.A.

Post Office Box 24628

Lakeland, Florida 33802 - 4628

For Respondents: Fred J. Lotterhos, III, Esquire

Holland & Knight, LLP

50 North Laura Street, S uite 3900

Post Office Box 52687

Jacksonville, Florida 32201 - 2687

STATEMENT OF THE ISSUES

The issues for determination are whether, as General Motors

Corporation contends in its notice letter to the Department of

High way Safety and Motor Vehicles (the "Department"), the

proposed relocation of Big Oaks Buick Pontiac GMC, Inc. ("Big

Oaks") is exempt from the requirements of Section 320.642,

Florida Statutes, pursuant to Subsection 320.642(5)(a), which

provides that reloc ations within two miles of its existing

dealership location are not to be considered an additional motor

vehicle dealership, or whether, as Petitioners contend, the

relocation is to a site more than two miles from the existing

dealership, the proposed relo cation constitutes an additional

dealership, and the proposed action may only be taken after

fulfilling the requirements of Section 320.642, Florida

Statutes.

PRELIMINARY STATEMENT

The Agency referrals for the above - styled cases were filed

on November 19, 2001, and December 5, 2001, respectively.

On December 18, 2001, an Order to Show Cause was entered in DOAH

Case No. 01 - 4650 requiring the parties to show cause, no later

than December 30, 2001, why this case should not be consolidated

with DOAH Case No. 01 - 4495. On December 27, 2001, DOAH Case

No. 01 - 4495 was scheduled for final hearing on May 22

through 24, 2002, in Tallahassee, Florida. On January 2, 2002,

a Motion for Enlargement of Time to Respond to Order to Show

Cause was granted, extending the time to January 18, 2002. On

February 14, 2002, the Order consolidating the above - styled

cases was entered. On May 10, 2002, an Amended Notice of

Hearing was issued, scheduling the consolidated cases for final

hearing on May 24, 2002, in Lakeland, Flori da. On May 20, 2002,

Cannon Automotive Group, Inc., filed its memorandum of law in

support of determination that the proposed relocation is greater

than two miles. On May 21, 2002, General Motors Corporation

filed its memorandum of law on the two - mile ex emption.

At the final hearing, Respondents presented the testimony

of Gregory Prather, qualified by stipulation as an expert

professional land surveyor; John Giovaneti, the president and

owner of Big Oaks; and Kelly S. Roth, general manager of Big

Oaks. Respondents introduced into evidence four exhibits

(R - 1 through R - 4) which were admitted without objection.

Petitioners presented the testimony of Robert DuBois, qualified

by stipulation as an expert professional land surveyor, and

introduced into evid ence as Exhibits P - A and P - B, which were

admitted without objection.

The hearing was recorded electronically and transcribed.

The Transcript, agreed to by the parties, was filed on

June 28, 2002. A Joint Motion for Enlargement of Time to file

Proposed Recommended Orders was granted, setting the date for

filing proposed recommended orders on July 12, 2002.

On July 16, 2002, the undersigned issued an Order requiring

Petitioners to file one additional copy of Petitioners'

Exhibit P - A, and requiring Respo ndents to file one copy of

Respondents' Exhibit R - 3 within 20 days from the date of the

Order. On August 2, 2002, Petitioners and Respondents filed the

additional surveys containing measurement of the two - mile

exemption per the instructions contained in F inding of Fact 10

herein, as requested, and they are marked (Court Exhibit A,

composite, consisting of exhibits P - A and R - 3). All memoranda

of law, Proposed Recommended Orders, and other pleadings have

been considered in rendering this Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses while testifying,

review of the Transcript and review of the exhibits in evidence

and the pleadings contained in the file, the following relevant

and material facts are found.

1. Respondent, B ig Oaks, is a franchised motor vehicle

dealer, owning and operating an existing dealership situated on

a four and one - half - acre tract of land and seeks to relocate the

dealership to a twenty - acre tract of land pursuant to the

exemption provided in Subsecti on 320.642(5)(a), Florida

Statutes.

2. Big Oaks' existing dealership is located at 255 West

Van Fleet Drive, Bartow, Florida, where all of its business,

service, and operational functions are conducted.

3. Big Oaks proposes to relocate its dealership t o a

twenty - acre site situated and abutting U.S. Highway 98, in

Bartow, Florida, north of the present location. All dealership

business functions are to be conducted on the proposed site.

4. To qualify for relocation pursuant to the exemption

provision st ated above, Big Oaks must relocate by a straight -

line measurement within two miles of its existing location. Big

Oaks measured the distance of the two - mile exemption by starting

at the nearest point of its existing four and one - half - acre

tract of land nea rest to the proposed site and going in a

straight line to the nearest point on the twenty - acre tract of

land. This method of measurement, nearest point on existing

tract to nearest proposed point of the proposed tract, resulted

in a computed distance of 9 ,995 feet or 1.89 miles. (Exhibit

R - 3)

5. Petitioners, Regal Lakeland and Cannon Automotive

Group, Inc., are franchised motor vehicle dealers, owners and

operators of same - line dealerships, and competitors with Big

Oaks. Petitioners opposed Big Oaks' r elocation, contending that

the proposed relocation is not within the two - mile exemption

provision provided by Subsection 320.642(5)(a), Florida

Statutes.

6. Petitioners, using a two - mile straight - line method of

measurement from existing dealership site t o proposed dealership

site (Exhibit P - B), selected four different starting points on

the existing site to four different points on the proposed site

with the following results:

(a) starting at the furthest point of Big

Oaks' existing site and measuring to the

furthest point of Big Oaks' proposed site

resulted in a distance of 2.28 miles;

(b) starting at the nearest point of Big

Oaks' existing site and measuring to the

nearest point of Big Oaks' proposed site

resulted in a distance of 1.89 miles;

(c) starting at the center of Big Oaks'

existing main building and measuring to the

center of Big Oaks' proposed showroom

building resulted in a distance of 2.20

miles; and

(d) starting at the center drive into Big

Oaks' existing site and measuring to the

center drive of Big Oaks' proposed access

road resulted in a distance of 2.04 miles.

7. Petitioners contend that a "center - point - to - center -

point" method of measurement to measure the two - mile relocation

exemption should be used. Starting at the c enter - point of Big

Oaks' existing building on the existing site and measuring to

the center - point of a proposed "showroom" building on Big Oaks'

proposed relocation site (Exhibit P - B) as shown on the site

plan, Petitioners' center - point - to - center - point met hod of

measuring resulted in a distance of 2.11 miles.

8. The parties are in agreement that neither the Florida

Statutes nor the Florida Administrative Code adopted by the

Department provide guidance for measurement of the two - mile

exemption concerning re location from an existing parcel of land

to a proposed parcel of land, each of different size and shape.

9. The results of Big Oaks' proposed method of measuring

the two - mile exemption and the results of Petitioners' several

methods of measuring the two - m ile exemption demonstrate the need

for an objective and all - inclusive method of measurement, one

that when applied will result in a measurement of the current

exemption relocation application and measurement of future

exemption relocation applications in a n equal and all - inclusive

manner.

10. At the request of the undersigned, the parties

submitted exhibits (Court Exhibit A, composite) depicting an

encircled center - point land tract to encircled center - point land

tract method to measure the "within 2 mile s" exemption. The

measurement process is as follows:

(1) identify the geographical center of

the existing land tract site from the land

survey corner marker 1 and encircle the land

tract of the existing dealership site;

(2) draw a two - mile straigh t - line radius 2

in the direction of the proposed relocation

land tract site;

(3) identify the geographical center of

the proposed land tract from the land survey

corner maker and encircle the proposed land

tract dealership site; and

(4) should any part of the encircled

proposed site extend beyond the two - mile

straight - line radius, the proposed

relocation site is not "within 2 miles" of

its existing land site location 3 . Should the

encircled proposed site not extend beyond

the two - mile straight - line radius, the

proposed relocation is "within 2 miles" of

its existing location.

11. Accordingly, and in accordance with the above

encircled center - point to encircled center - point method of

measurement, Big Oaks' relocation to the proposed site herein

abov e identified is not "within 2 miles" of Big Oaks' existing

dealership site and, therefore, does not meet the limiting

condition for the relocation exemption.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the partie s to this cause and over the subject

matter of this cause. Subsection 120.57(1) and Section 320.642,

Florida Statutes.

13. The Legislature has determined that "maintaining

competition" among franchised motor vehicle dealers and

manufactures is of primar y concern. Accordingly, when one seeks

to establish or relocate a dealership, the pole star of the

process is to maintain competition among franchised dealerships.

Section 320.605, Florida Statutes, states:

320.605 Legislative intent. –

It is the i ntent 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 provid ing minorities with

opportunities for full participation as

motor vehicle dealers.

14. Relocation of a franchised dealership has a direct

impact, financial and otherwise, on every other franchised

dealership within the specific areas identified by t he statute

below. Accordingly, the statutory processes for establishment

of and/or for relocation of a franchised dealership are detailed

and specific and, therefore, strictly construed. Subsection

320.642(1), Florida Statutes, provides:

(1) Any licen see who proposes to

establish an additional motor vehicle

dealership or permit the relocation of an

existing dealer to a location within a

community or territory where the same line -

make vehicle is presently represented by a

franchised motor vehicle dealer or dealers

shall give written notice of its intention

by certified mail to the department. Such

notice shall state:

(a) The specific location at which the

additional or relocated motor vehicle

dealership will be established.

(b) The date on or af ter which the

licensee intends to be engaged in business

with the additional or relocated motor

vehicle dealer at the proposed location.

(c) The identity of all motor vehicle

dealers who are franchised to sell the same

line - make vehicle with licensed l ocations in

the county or any contiguous county to the

county where the additional or relocated

motor vehicle dealer is proposed to be

located.

(d) The names and addresses of the

dealer - operator and principal investors in

the proposed additional or rel ocated motor

vehicle dealership.

Immediately upon receipt of such notice, the

department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice shall state

that a petition or complaint by any dealer

with standing to protest pursuant to

subsection (3) must be filed not more than

30 days from the date of publication of the

notice in the Florida Administrative

Weekly. . . .

15. Petitioners, franchised dealerships of the same line -

make vehicles as Big Oaks, have sta nding to protest Big Oaks'

intended relocation from its existing site to a proposed site

pursuant to the exemption of Subsection 320.642(5)(a), Florida

Statutes, and to require Big Oaks to comply with Subsections

320.642(1) through 320.642(4), Florida Stat utes.

16. Subsections 320.642(2) through 320.642(5), Florida

Statutes, provide:

(2)(a) An application for a motor vehicle

dealer license in any community or territory

shall be denied when:

1. A timely protest is filed by a

presently existing franch ised motor vehicle

dealer with standing to protest as defined

in subsection (3); and

2. The licensee fails to show that the

existing franchised dealer or dealers who

register new motor vehicle retail sales or

retail leases of the same line - make in the

community or territory of the proposed

dealership are not providing adequate

representation of such line - make motor

vehicles in such community or territory.

The burden of proof in establishing

inadequate representation shall be on the

licensee.

(b) In determining whether the existing

franchised motor vehicle dealer or dealers

are providing adequate representation in the

community or territory for the line - make,

the department may consider evidence which

may include, but is not limited to:

1. The i mpact of the establishment of the

proposed or relocated dealer on the

consumers, public interest, existing

dealers, and the licensee; provided,

however, that financial impact may only be

considered with respect to the protesting

dealer or dealers.

2. The size and permanency of investment

reasonably made and reasonable obligations

incurred by the existing dealer or dealers

to perform their obligations under the

dealer agreement.

3. The reasonably expected market

penetration of the line - make motor v ehicle

for the community or territory involved,

after consideration of all factors which may

affect said penetration, including, but not

limited to, demographic factors such as age,

income, education, size class preference,

product popularity, retail lease

transactions, or other factors affecting

sales to consumers of the community or

territory.

4. Any actions by the licensees in

denying its existing dealer or dealers of

the same line - make the opportunity for

reasonable growth, market expansion, or

relo cation, including the availability of

line - make vehicles in keeping with the

reasonable expectations of the licensee in

providing an adequate number of dealers in

the community or territory.

5. Any attempts by the licensee to coerce

the existing dealer or dealers into

consenting to additional or relocated

franchises of the same line - make in the

community or territory.

6. Distance, travel time, traffic

patterns, and accessibility between the

existing dealer or dealers of the same line -

make and the lo cation of the proposed

additional or relocated dealer.

7. Whether benefits to consumers will

likely occur from the establishment or

relocation of the dealership which the

protesting dealer or dealers prove cannot be

obtained by other geographic or demo graphic

changes or expected changes in the community

or territory.

8. Whether the protesting dealer or

dealers are in substantial compliance with

their dealer agreement.

9. Whether there is adequate interbrand

and intrabrand competition with respec t to

said line - make in the community or territory

and adequately convenient consumer care for

the motor vehicles of the line - make,

including the adequacy of sales and service

facilities.

10. Whether the establishment or

relocation of the proposed deale rship

appears to be warranted and justified based

on economic and marketing conditions

pertinent to dealers competing in the

community or territory, including

anticipated future changes.

11. The volume of registrations and

service business transacted b y the existing

dealer or dealers of the same line - make in

the relevant community or territory of the

proposed dealership.

(3) An existing franchised motor vehicle

dealer or dealers shall have standing to

protest a proposed additional or relocated

motor vehicle dealer where the existing

motor vehicle dealer or dealers have a

franchise agreement for the same line - make

vehicle to be sold by the proposed

additional or relocated motor vehicle dealer

and are physically located so as to meet or

satisfy any of the following requirements or

conditions:

(a) If the proposed additional or

relocated motor vehicle dealer is to be

located in a county with a population of

less than 300,000 according to the most

recent data of the United States Census

Bureau or the d ata of the Bureau of Economic

and Business Research of the University of

Florida:

1. The proposed additional or relocated

motor vehicle dealer is to be located in the

area designated or described as the area of

responsibility, or such similarly designa ted

area, including the entire area designated

as a multiple - point area, in the franchise

agreement or in any related document or

commitment with the existing motor vehicle

dealer or dealers of the same line - make as

such agreement existed upon October 1, 1 988;

2. The existing motor vehicle dealer or

dealers of the same line - make have a

licensed franchise location within a radius

of 20 miles of the location of the proposed

additional or relocated motor vehicle

dealer; or

3. Any existing motor vehicle dealer or

dealers of the same line - make can establish

that during any 12 - month period of the 36 -

month period preceding the filing of the

licensee's application for the proposed

dealership, such dealer or its predecessor

made 25 percent of its retail sales of new

motor vehicles to persons whose registered

household addresses were located within a

radius of 20 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided such existing

dealer is located in the same county or any

county contiguous to the county where the

additional or relocated dealer is proposed

to be located.

(b) If the proposed additional or

relocated motor vehicle dealer is to be

located in a county with a population of

more than 300,000 according to the m ost

recent data of the United States Census

Bureau or the data of the Bureau of Economic

and Business Research of the University of

Florida:

1. Any existing motor vehicle dealer or

dealers of the same line - make have a

licensed franchise location within a radius

of 12.5 miles of the location of the

proposed additional or relocated motor

vehicle dealer; or

2. Any existing motor vehicle dealer or

dealers of the same line - make can establish

that during any 12 - month period of the 36 -

month period preceding the filing of the

licensee's application for the proposed

dealership, such dealer or its predecessor

made 25 percent of its retail sales of new

motor vehicles to persons whose registered

household addresses were located within a

radius of 12.5 miles of th e location of the

proposed additional or relocated motor

vehicle dealer; provided such existing

dealer is located in the same county or any

county contiguous to the county where the

additional or relocated dealer is proposed

to be located.

(4) The depa rtment's decision to deny

issuance of a license under this section

shall remain in effect for a period of 12

months. The department shall not issue a

license for the proposed additional or

relocated motor vehicle dealer until a final

decision by the depar tment is rendered

determining that the application for the

motor vehicle dealer's license should be

granted.

(5) The opening or reopening of the same

or a successor motor vehicle dealer within

12 months shall not be considered an

additional motor vehic le dealer subject to

protest within the meaning of this section ,

if:

(a) The opening or reopening is within

the same or an adjacent county, is within 2

miles of the former motor vehicle dealer

location,

(b) The proposed location is further from

eac h 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,

(c) The opening or reopening is within

6 miles of the prior location and, if any

existing motor vehicle deal er 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

(d) The opening or reopening is within 6

miles of the prior location and, if all

existing mo tor 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 addi tional motor vehicle

dealer within the meaning of this section.

(emphasis added)

17. The first issue to address is one of statutory

construction. It is true that Subsection 320.642(5)(a), Florida

Statutes, does not prescribe how the "within 2 miles" o f

existing dealership location in the statute shall be measured.

However, in the absence of anything in the statute to the

contrary, the undersigned finds that the legislative intent was

that this distance of "2 miles" meant "2 miles" in a straight

line f rom the existing dealership location to the proposed

dealership location.

18. In statutory construction, courts have assumed that

when the Legislature used certain exact words or exact phrases

in the various subsections of a statute to mean the same thin g,

and in a broad sense the subsections of the chapter are in pari

material and should, to the extent that understanding of one

subsection may aid in interpretation of the other subsection, be

read and considered together. See Goldstein v. Acme Concrete

C orp. , 103 So. 2d 202 (Fla. 1958). Applying the above

assumption of the court to reading the above statute from

Subsections 320.642(2) through 320.642(5), places in context the

legislative concerns with maintaining competition between same

line franchised dealerships and the restrictive limitation to be

read in the relocation exemption of Subsection 320.642(5)(a),

Florida Statutes.

19. The contention of Big Oaks is that in the phrase

"within 2 miles of the former motor vehicle dealer location,"

the word "l ocation" meant the legal description of the legal

boundary of the dealership property reflecting that the relevant

point of origin for measurement of the two - mile distance should

be the property's boundary rather than a particular building or

other point w ithin the boundary.

20. Big Oaks also contends that any measuring scheme that

requires the entire proposed site to be within the two - mile ring

would violate sound principles of statutory construction; that

measuring the distance between a particular buil ding is contrary

to the statute and the evidence; and a center - to - center

measurement would reduce the two - mile ring and would invite

methodology disputes whenever the property is irregular in

shape.

21. Big Oaks is correct in its contention that the word

"location" means the legal description of the legal boundary of

the dealership property. By identifying the geographical

center - point of the legal description of the existing and of the

proposed dealership sites, encircling each site could

accommodate la rge, small and irregular shaped sites, thereby

maintaining the integrity of both the legislative intent of

maintaining competition among same - line dealerships and the

relocation of the dealer's total business and service functions,

within a two - mile straig ht - line measurement from the existing

site, in toto.

22. Big Oaks' second contention, that any requirement for

the proposed relocation site to be entirely within the two - mile

ring would violate sound principles of statutory construction,

misses the mark a nd ignores the intent of the Legislature to

maintain competition among same - line dealerships.

23. Applying the above statutory construction to

Subsections 320.642(2)(a) through 320.642(3), Florida Statutes,

above, the Legislature used the term " within a radius of . . ."

in Subsections (3), (3)(b), 3(b)1., (3)(b)2., (5)(a), (5)(b),

and (5)(c), in the restrictive sense, evidencing an intent to

limit relocation of a same - line dealership to " within " a

specific distance from its existing dealership location.

Conversely, in Subsection (5)(d), the Legislature's use of the

words " further than . . ." evidences the intent of a non -

restrictive use of the limiting term " within ." (Emphasis added)

24. Based upon the Findings of Fact herein above, a plain

reading dem onstrates that the legislative intent of Subsection

320.642(5)(a), Florida Statutes, to exempt same - line dealerships

seeking to relocate from challenges by other same - line

dealerships, only if and when the proposed relocation site 4 is

within the specific d istance of "2 miles" from the existing

site. All other relocation applicants must comply with

requirements contained in Subsections 320.642(1) through

320.6421(4), Florida Statutes.

25. The carefully drawn exemption provision of Subsection

320.642(5)(a) , Florida Statues, reflects a deliberate

legislative choice to afford the benefit of this narrow two - mile

exemption to existing same - line dealerships, like Big Oaks, and

afford competitive protection to other same - line dealerships,

like Petitioners, who wo uld be subjected to territorial

intrusions by another same - line dealership relocation absent the

safeguards and opportunity to challenge such same - line

relocation specified in Subsections 320.642(1) through

320.642(4), Florida Statutes.

26. Big Oaks fur ther contends that measuring from the

nearest corner to nearest corner is the simplest and most

precise way to satisfy the statutory requirements for exemption,

citing State ex rel. Fronton Exhibition Co. v. Stein , 198 So. 82

(Fla. 1940). Big Oaks' propos ed measuring method, nearest

corner to nearest corner, ignores not only the legislative

intended purpose of maintaining competition by the limiting

distance of the exemption provision but also ignores the reality

of irregular shapes and varying acreage siz es of present and

future dealership sites upon which relocation is sought.

Conversely, the encircled radius of the existing site, a

straight - line two - mile, to the encircled radius of the proposed

site method of measurement is equally applicable to all

rel ocation applications, accommodating any and all irregular

shaped acreage and acreage different sizes of both existing and

proposed particles of land.

27. In Fronton , the Court was confronted with a statute

that provided that no permit shall be issued for operation of a

Jai - a - Lai Fronton to be constructed or operated "within 1,000

feet of any existing church or public school," and held that the

distance of "1,000 feet" meant 1,000 feet measured in a straight

line. Addressing this matter, the Court was conf ronted first

with statutory construction, and concluded that the legislative

intent was that the "distance of one thousand feet meant one

thousand feet in a straight line." Also, true in the case at

bar, "within 2 miles" contained in Subsection 320.642(5) (a),

Florida Statutes, means a two - mile straight - line measurement.

28. The Court in Fronton went on to address the

application of the prohibition of no construction within 1,000

feet of public school. In doing so, the Court employed an

analysis of the f unctions of a "public school." With particular

note that "the word 'school' is a generic term, denoting 'an

institution or place for instruction or education, or the

collective body of instructors and pupils in any such place or

institution'; that a schoo l is not measured by walls of a

building; that two or more schools may exist in one building;

and that it is 'a place where systematic instruction in useful

branches is given by methods common to schools and institutions

of learning,'" Id. at 87. The Fron ton Court adopted the

broadest functional definition of a public school to mean the

physical land dimensions necessary for the performance of all

" school functions " of the school under consideration. The Court

adopted the definition of "school" as found b y the Supreme Court

of Kansas, In re Sanders, 53 Kan. 191, 36P, 384, 349, 23 L.R.A.

603 , as "Any place or means of discipline, improvement,

instruction, or training," including "school," "school center,"

"school plant" and "school site." Id.

29. Subsect ions 320.60(11)(a) and (b), Florida Statutes,

defines not only motor vehicle dealer but also lists those

functions engaged in by each motor vehicle dealer as follows:

(11)(a) "Motor vehicle dealer" means any

person, firm, company, corporation, or other

entity, who,

1. Is licensed pursuant to s. 320.27 as a

"franchised motor vehicle dealer" and, for

commission, money, or other things of value,

repairs or services motor vehicles or used

motor vehicles pursuant to an agreement as

defined in subsection (1), or

2. Who sells, exchanges, buys, leases or

rents, or offers, or attempts to negotiate a

sale or exchange of any interest in, motor

vehicles, or

3. Who is engaged wholly or in part in

the business of selling motor vehicles,

whether or not such motor vehicles are owned

by such person, firm, company, or

corporation.

(b) Any person who repairs or services

three or more motor vehicles or used motor

vehicles as set forth in paragraph (a), or

who buys, sells, or deals in three or more

motor vehic les in any 12 - month period or who

offers or displays for sale three or more

motor vehicles in any 12 - month period shall

be prima facie presumed to be a motor

vehicle dealer. The terms "selling" and

"sale" include lease - purchase transactions."

30. Apply ing the functional definition analysis to the

case at bar, the term "motor vehicle dealer" as defined

hereinabove, includes functions to be conducted by a motor

vehicle dealer or could be conducted by a motor vehicle dealer

on a specific site, and all func tions conducted or could be

conducted by a motor vehicle dealer on a proposed site. The

exemption allows for all functions of a franchised motor vehicle

dealer, not just a building or a specific location on a site, to

move from an existing location to a p roposed location, limited

only by a straight - line two - mile distance.

31. Thus, to measure from any selected point of the

existing dealership site to any selected point on the proposed

dealership site, other than the encircled radius of existing

sites and the encircled radius of proposed sites, would be

contrary to the "within 2 miles" limitation as provided by the

exemption provision herein under considered.

32. In the case at bar, accepting the method of measuring

the two - mile exemption advanced by Big Oaks, the proposed

relocation site is located at a distance less than two miles

from the existing dealership site. Conversely, accepting the

method of measuring the two - mile exemption advanced by

Petitioners, the proposed relocation is located at a distan ce

greater than two miles from the existing dealership site. Each

result is dependent wholly upon the initial selection of a

desired starting point on the existing site and selection of the

desired reference - point on the proposed site. The result of

thos e methods of measurement, advantage to the proposed

relocating dealership and/or disadvantage of same - line

competitors, is clearly not the legislative intent of exemption

from the rigorous requirements of Section 320.642(1), Florida

Statutes.

33. In the case at bar, the proposed relocation site of

the Big Oaks' dealership, identified by its encircled

geographical center - point legal description, lies at a distance

greater than the limiting two - mile straight - line distance from

the Big Oaks dealership's existing land tract also identified by

its encircled geographical center - point legal description;

therefore, the relocation site proposed by Big Oaks does not

qualify for the exemption as provided in Subsection

320.642(5)(a), Florida Statutes.

34. Ba sed upon the Findings of Fact herein above, Big

Oaks', a franchised dealership, proposed relocation is not

within the two - mile straight - line measurement exemption and

would constitute an additional dealership within the meaning of

Section 320.642, Florida Statutes.

35. Therefore, prior to relocation taking place, Big Oaks

and General Motors Corporation and the Department shall be

required to comply with the notice requirements providing same -

line franchised dealerships an opportunity to demand an

establi shment determination as authorized by Section 320.642,

Florida Statutes.

RECOMMENDATION

It is RECOMMENDED that the Department of Highway Safety and

Motor Vehicles enter a final order DISMISSING the Protests filed

in this cause as premature, and ORDER the proposed additional

dealership be noticed as required by Section 320.642, Florida

Statutes.

DONE AND ENTERED this _____ day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

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 _____ day of August, 2002.

ENDNOTES

1/ Corner marker is the point that every Florida licensed land

surveyor begins his or her land survey. See Exhibit R - 2,

"Beginning at the northeast corner of the northeast quarter

. . . ." Contrary to Big Oa ks' contention that location of the

center - point of a parcel is different for each parcel of land

and unreliable, the geographical center point for each parcel is

different but can be determined for every parcel of land

surveyed by a Florida licensed land surveyor.

2/ Radius means a line segment that joins the center with any

other point on its circumference and/or a line segment that

joins the center of a sphere with any point on its surface

and/or a line segment that joins the center of a regular polyg on

to any of its vertices [polygon]: a closed plane figure bounded

by three or more line segments. American Heritage Dictionary ,

page 1077 and page 1016.

3/ Location, within the context of this Recommended Order,

means a tract of land that has been sur veyed and marked off.

American Heritage Dictionary , page 765.

4/ Site means the place of plot of land where something was,

is, or is to be located. American Heritage Dictionary , page

1210.

COPIES FURNISHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Neil Kirkman Building, Room A432

Tallahassee, Florida 32399 - 0500

John W. Forehand, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street

Suite 300

Tallahassee, Florida 32301

Fred J. L otterhos, III, Esquire

Holland & Knight, LLP

50 North Laura Street, Suite 3900

Post Office Box 52687

Jacksonville, Florida 32201 - 2687

James R. Meyer, Esquire

225 Central Avenue, Suite 1

Post Office Box 1356

Bartow, Florida 33831 - 1356

Carl A. Ford, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B - 439

Tallahassee, Florida 32399 - 0600

Enoch Jon Whitney, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Buil ding

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

David A. Miller, Esquire

Peterson & Myers, P.A.

Post Office Box 24628

Lakeland, Florida 33802 - 4628

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s 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.