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.


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8REGAL LAKELAND, )

11)

12Petitioner, )

14)

15vs. ) Case No. 01 - 4495

22)

23GENERAL MOTORS CORPORATION AND )

28BIG OAKS BUICK PONTIAC GMC, )

34INC., )

36)

37Respondents. )

39)

40CANNON AUTOMOTIVE GROUP, INC., )

45)

46Petitioner, )

48)

49vs. ) Case No. 0 1 - 4650

57)

58GENERAL MOTORS CORPORATION AND )

63BIG OAKS BUI CK PONTIAC GMC, )

70INC., )

72)

73Respondents. )

75)

76RECOMMENDED ORDER

78Pursuant to notice, this cause came before the Division of

88Administrative H earings for a final hearing on May 24, 2002, in

100Lakeland, Florida, before Administrative Law Judge, Fred L.

108Buckine.

109APPEARANCES

110For Petitioner James R. Meyer, Esquire

116Regal Lakeland: 225 Central Avenue, Suite 1

123Post Office Box 1356

127Lakeland, Florida 33831 - 1356

132For Petitioner John W. Forehand, Esquire

138Cannon Automotive Lewis, Longman & Walker, P.A.

145Group, Inc.: 125 South Gadsden Street

151Suite 300

153Tallahassee, Florida 32301

156David A. Mille r, Esquire

161Peterson & Myers, P.A.

165Post Office Box 24628

169Lakeland, Florida 33802 - 4628

174For Respondents: Fred J. Lotterhos, III, Esquire

181Holland & Knight, LLP

18550 North Laura Street, S uite 3900

192Post Office Box 52687

196Jacksonville, Florida 32201 - 2687

201STATEMENT OF THE ISSUES

205The issues for determination are whether, as General Motors

214Corporation contends in its notice letter to the Department of

224High way Safety and Motor Vehicles (the "Department"), the

234proposed relocation of Big Oaks Buick Pontiac GMC, Inc. ("Big

245Oaks") is exempt from the requirements of Section 320.642,

255Florida Statutes, pursuant to Subsection 320.642(5)(a), which

262provides that reloc ations within two miles of its existing

272dealership location are not to be considered an additional motor

282vehicle dealership, or whether, as Petitioners contend, the

290relocation is to a site more than two miles from the existing

302dealership, the proposed relo cation constitutes an additional

310dealership, and the proposed action may only be taken after

320fulfilling the requirements of Section 320.642, Florida

327Statutes.

328PRELIMINARY STATEMENT

330The Agency referrals for the above - styled cases were filed

341on November 19, 2001, and December 5, 2001, respectively.

350On December 18, 2001, an Order to Show Cause was entered in DOAH

363Case No. 01 - 4650 requiring the parties to show cause, no later

376than December 30, 2001, why this case should not be consolidated

387with DOAH Case No. 01 - 4495. On December 27, 2001, DOAH Case

400No. 01 - 4495 was scheduled for final hearing on May 22

412through 24, 2002, in Tallahassee, Florida. On January 2, 2002,

422a Motion for Enlargement of Time to Respond to Order to Show

434Cause was granted, extending the time to January 18, 2002. On

445February 14, 2002, the Order consolidating the above - styled

455cases was entered. On May 10, 2002, an Amended Notice of

466Hearing was issued, scheduling the consolidated cases for final

475hearing on May 24, 2002, in Lakeland, Flori da. On May 20, 2002,

488Cannon Automotive Group, Inc., filed its memorandum of law in

498support of determination that the proposed relocation is greater

507than two miles. On May 21, 2002, General Motors Corporation

517filed its memorandum of law on the two - mile ex emption.

529At the final hearing, Respondents presented the testimony

537of Gregory Prather, qualified by stipulation as an expert

546professional land surveyor; John Giovaneti, the president and

554owner of Big Oaks; and Kelly S. Roth, general manager of Big

566Oaks. Respondents introduced into evidence four exhibits

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

585Petitioners presented the testimony of Robert DuBois, qualified

593by stipulation as an expert professional land surveyor, and

602introduced into evid ence as Exhibits P - A and P - B, which were

617admitted without objection.

620The hearing was recorded electronically and transcribed.

627The Transcript, agreed to by the parties, was filed on

637June 28, 2002. A Joint Motion for Enlargement of Time to file

649Proposed Recommended Orders was granted, setting the date for

658filing proposed recommended orders on July 12, 2002.

666On July 16, 2002, the undersigned issued an Order requiring

676Petitioners to file one additional copy of Petitioners'

684Exhibit P - A, and requiring Respo ndents to file one copy of

697Respondents' Exhibit R - 3 within 20 days from the date of the

710Order. On August 2, 2002, Petitioners and Respondents filed the

720additional surveys containing measurement of the two - mile

729exemption per the instructions contained in F inding of Fact 10

740herein, as requested, and they are marked (Court Exhibit A,

750composite, consisting of exhibits P - A and R - 3). All memoranda

763of law, Proposed Recommended Orders, and other pleadings have

772been considered in rendering this Recommended Order.

779FINDINGS OF FACT

782Based upon observation of the witnesses while testifying,

790review of the Transcript and review of the exhibits in evidence

801and the pleadings contained in the file, the following relevant

811and material facts are found.

8161. Respondent, B ig Oaks, is a franchised motor vehicle

826dealer, owning and operating an existing dealership situated on

835a four and one - half - acre tract of land and seeks to relocate the

851dealership to a twenty - acre tract of land pursuant to the

863exemption provided in Subsecti on 320.642(5)(a), Florida

870Statutes.

8712. Big Oaks' existing dealership is located at 255 West

881Van Fleet Drive, Bartow, Florida, where all of its business,

891service, and operational functions are conducted.

8973. Big Oaks proposes to relocate its dealership t o a

908twenty - acre site situated and abutting U.S. Highway 98, in

919Bartow, Florida, north of the present location. All dealership

928business functions are to be conducted on the proposed site.

9384. To qualify for relocation pursuant to the exemption

947provision st ated above, Big Oaks must relocate by a straight -

959line measurement within two miles of its existing location. Big

969Oaks measured the distance of the two - mile exemption by starting

981at the nearest point of its existing four and one - half - acre

995tract of land nea rest to the proposed site and going in a

1008straight line to the nearest point on the twenty - acre tract of

1021land. This method of measurement, nearest point on existing

1030tract to nearest proposed point of the proposed tract, resulted

1040in a computed distance of 9 ,995 feet or 1.89 miles. (Exhibit

1052R - 3)

10555. Petitioners, Regal Lakeland and Cannon Automotive

1062Group, Inc., are franchised motor vehicle dealers, owners and

1071operators of same - line dealerships, and competitors with Big

1081Oaks. Petitioners opposed Big Oaks' r elocation, contending that

1090the proposed relocation is not within the two - mile exemption

1101provision provided by Subsection 320.642(5)(a), Florida

1107Statutes.

11086. Petitioners, using a two - mile straight - line method of

1120measurement from existing dealership site t o proposed dealership

1129site (Exhibit P - B), selected four different starting points on

1140the existing site to four different points on the proposed site

1151with the following results:

1155(a) starting at the furthest point of Big

1163Oaks' existing site and measuring to the

1170furthest point of Big Oaks' proposed site

1177resulted in a distance of 2.28 miles;

1184(b) starting at the nearest point of Big

1192Oaks' existing site and measuring to the

1199nearest point of Big Oaks' proposed site

1206resulted in a distance of 1.89 miles;

1213(c) starting at the center of Big Oaks'

1221existing main building and measuring to the

1228center of Big Oaks' proposed showroom

1234building resulted in a distance of 2.20

1241miles; and

1243(d) starting at the center drive into Big

1251Oaks' existing site and measuring to the

1258center drive of Big Oaks' proposed access

1265road resulted in a distance of 2.04 miles.

12737. Petitioners contend that a "center - point - to - center -

1286point" method of measurement to measure the two - mile relocation

1297exemption should be used. Starting at the c enter - point of Big

1310Oaks' existing building on the existing site and measuring to

1320the center - point of a proposed "showroom" building on Big Oaks'

1332proposed relocation site (Exhibit P - B) as shown on the site

1344plan, Petitioners' center - point - to - center - point met hod of

1358measuring resulted in a distance of 2.11 miles.

13668. The parties are in agreement that neither the Florida

1376Statutes nor the Florida Administrative Code adopted by the

1385Department provide guidance for measurement of the two - mile

1395exemption concerning re location from an existing parcel of land

1405to a proposed parcel of land, each of different size and shape.

14179. The results of Big Oaks' proposed method of measuring

1427the two - mile exemption and the results of Petitioners' several

1438methods of measuring the two - m ile exemption demonstrate the need

1450for an objective and all - inclusive method of measurement, one

1461that when applied will result in a measurement of the current

1472exemption relocation application and measurement of future

1479exemption relocation applications in a n equal and all - inclusive

1490manner.

149110. At the request of the undersigned, the parties

1500submitted exhibits (Court Exhibit A, composite) depicting an

1508encircled center - point land tract to encircled center - point land

1520tract method to measure the "within 2 mile s" exemption. The

1531measurement process is as follows:

1536(1) identify the geographical center of

1542the existing land tract site from the land

1550survey corner marker 1 and encircle the land

1558tract of the existing dealership site;

1564(2) draw a two - mile straigh t - line radius 2

1576in the direction of the proposed relocation

1583land tract site;

1586(3) identify the geographical center of

1592the proposed land tract from the land survey

1600corner maker and encircle the proposed land

1607tract dealership site; and

1611(4) should any part of the encircled

1618proposed site extend beyond the two - mile

1626straight - line radius, the proposed

1632relocation site is not "within 2 miles" of

1640its existing land site location 3 . Should the

1649encircled proposed site not extend beyond

1655the two - mile straight - line radius, the

1664proposed relocation is "within 2 miles" of

1671its existing location.

167411. Accordingly, and in accordance with the above

1682encircled center - point to encircled center - point method of

1693measurement, Big Oaks' relocation to the proposed site herein

1702abov e identified is not "within 2 miles" of Big Oaks' existing

1714dealership site and, therefore, does not meet the limiting

1723condition for the relocation exemption.

1728CONCLUSIONS OF LAW

173112. The Division of Administrative Hearings has

1738jurisdiction over the partie s to this cause and over the subject

1750matter of this cause. Subsection 120.57(1) and Section 320.642,

1759Florida Statutes.

176113. The Legislature has determined that "maintaining

1768competition" among franchised motor vehicle dealers and

1775manufactures is of primar y concern. Accordingly, when one seeks

1785to establish or relocate a dealership, the pole star of the

1796process is to maintain competition among franchised dealerships.

1804Section 320.605, Florida Statutes, states:

1809320.605 Legislative intent. –

1813It is the i ntent of the Legislature to

1822protect the public health, safety, and

1828welfare of the citizens of the state by

1836regulating the licensing of motor vehicle

1842dealers and manufacturers, maintaining

1846competition, providing consumer protection

1850and fair trade and provid ing minorities with

1858opportunities for full participation as

1863motor vehicle dealers.

186614. Relocation of a franchised dealership has a direct

1875impact, financial and otherwise, on every other franchised

1883dealership within the specific areas identified by t he statute

1893below. Accordingly, the statutory processes for establishment

1900of and/or for relocation of a franchised dealership are detailed

1910and specific and, therefore, strictly construed. Subsection

1917320.642(1), Florida Statutes, provides:

1921(1) Any licen see who proposes to

1928establish an additional motor vehicle

1933dealership or permit the relocation of an

1940existing dealer to a location within a

1947community or territory where the same line -

1955make vehicle is presently represented by a

1962franchised motor vehicle dealer or dealers

1968shall give written notice of its intention

1975by certified mail to the department. Such

1982notice shall state:

1985(a) The specific location at which the

1992additional or relocated motor vehicle

1997dealership will be established.

2001(b) The date on or af ter which the

2010licensee intends to be engaged in business

2017with the additional or relocated motor

2023vehicle dealer at the proposed location.

2029(c) The identity of all motor vehicle

2036dealers who are franchised to sell the same

2044line - make vehicle with licensed l ocations in

2053the county or any contiguous county to the

2061county where the additional or relocated

2067motor vehicle dealer is proposed to be

2074located.

2075(d) The names and addresses of the

2082dealer - operator and principal investors in

2089the proposed additional or rel ocated motor

2096vehicle dealership.

2098Immediately upon receipt of such notice, the

2105department shall cause a notice to be

2112published in the Florida Administrative

2117Weekly. The published notice shall state

2123that a petition or complaint by any dealer

2131with standing to protest pursuant to

2137subsection (3) must be filed not more than

214530 days from the date of publication of the

2154notice in the Florida Administrative

2159Weekly. . . .

216315. Petitioners, franchised dealerships of the same line -

2172make vehicles as Big Oaks, have sta nding to protest Big Oaks'

2184intended relocation from its existing site to a proposed site

2194pursuant to the exemption of Subsection 320.642(5)(a), Florida

2202Statutes, and to require Big Oaks to comply with Subsections

2212320.642(1) through 320.642(4), Florida Stat utes.

221816. Subsections 320.642(2) through 320.642(5), Florida

2224Statutes, provide:

2226(2)(a) An application for a motor vehicle

2233dealer license in any community or territory

2240shall be denied when:

22441. A timely protest is filed by a

2252presently existing franch ised motor vehicle

2258dealer with standing to protest as defined

2265in subsection (3); and

22692. The licensee fails to show that the

2277existing franchised dealer or dealers who

2283register new motor vehicle retail sales or

2290retail leases of the same line - make in the

2300community or territory of the proposed

2306dealership are not providing adequate

2311representation of such line - make motor

2318vehicles in such community or territory.

2324The burden of proof in establishing

2330inadequate representation shall be on the

2336licensee.

2337(b) In determining whether the existing

2343franchised motor vehicle dealer or dealers

2349are providing adequate representation in the

2355community or territory for the line - make,

2363the department may consider evidence which

2369may include, but is not limited to:

23761. The i mpact of the establishment of the

2385proposed or relocated dealer on the

2391consumers, public interest, existing

2395dealers, and the licensee; provided,

2400however, that financial impact may only be

2407considered with respect to the protesting

2413dealer or dealers.

24162. The size and permanency of investment

2423reasonably made and reasonable obligations

2428incurred by the existing dealer or dealers

2435to perform their obligations under the

2441dealer agreement.

24433. The reasonably expected market

2448penetration of the line - make motor v ehicle

2457for the community or territory involved,

2463after consideration of all factors which may

2470affect said penetration, including, but not

2476limited to, demographic factors such as age,

2483income, education, size class preference,

2488product popularity, retail lease

2492transactions, or other factors affecting

2497sales to consumers of the community or

2504territory.

25054. Any actions by the licensees in

2512denying its existing dealer or dealers of

2519the same line - make the opportunity for

2527reasonable growth, market expansion, or

2532relo cation, including the availability of

2538line - make vehicles in keeping with the

2546reasonable expectations of the licensee in

2552providing an adequate number of dealers in

2559the community or territory.

25635. Any attempts by the licensee to coerce

2571the existing dealer or dealers into

2577consenting to additional or relocated

2582franchises of the same line - make in the

2591community or territory.

25946. Distance, travel time, traffic

2599patterns, and accessibility between the

2604existing dealer or dealers of the same line -

2613make and the lo cation of the proposed

2621additional or relocated dealer.

26257. Whether benefits to consumers will

2631likely occur from the establishment or

2637relocation of the dealership which the

2643protesting dealer or dealers prove cannot be

2650obtained by other geographic or demo graphic

2657changes or expected changes in the community

2664or territory.

26668. Whether the protesting dealer or

2672dealers are in substantial compliance with

2678their dealer agreement.

26819. Whether there is adequate interbrand

2687and intrabrand competition with respec t to

2694said line - make in the community or territory

2703and adequately convenient consumer care for

2709the motor vehicles of the line - make,

2717including the adequacy of sales and service

2724facilities.

272510. Whether the establishment or

2730relocation of the proposed deale rship

2736appears to be warranted and justified based

2743on economic and marketing conditions

2748pertinent to dealers competing in the

2754community or territory, including

2758anticipated future changes.

276111. The volume of registrations and

2767service business transacted b y the existing

2774dealer or dealers of the same line - make in

2784the relevant community or territory of the

2791proposed dealership.

2793(3) An existing franchised motor vehicle

2799dealer or dealers shall have standing to

2806protest a proposed additional or relocated

2812motor vehicle dealer where the existing

2818motor vehicle dealer or dealers have a

2825franchise agreement for the same line - make

2833vehicle to be sold by the proposed

2840additional or relocated motor vehicle dealer

2846and are physically located so as to meet or

2855satisfy any of the following requirements or

2862conditions:

2863(a) If the proposed additional or

2869relocated motor vehicle dealer is to be

2876located in a county with a population of

2884less than 300,000 according to the most

2892recent data of the United States Census

2899Bureau or the d ata of the Bureau of Economic

2909and Business Research of the University of

2916Florida:

29171. The proposed additional or relocated

2923motor vehicle dealer is to be located in the

2932area designated or described as the area of

2940responsibility, or such similarly designa ted

2946area, including the entire area designated

2952as a multiple - point area, in the franchise

2961agreement or in any related document or

2968commitment with the existing motor vehicle

2974dealer or dealers of the same line - make as

2984such agreement existed upon October 1, 1 988;

29922. The existing motor vehicle dealer or

2999dealers of the same line - make have a

3008licensed franchise location within a radius

3014of 20 miles of the location of the proposed

3023additional or relocated motor vehicle

3028dealer; or

30303. Any existing motor vehicle dealer or

3037dealers of the same line - make can establish

3046that during any 12 - month period of the 36 -

3057month period preceding the filing of the

3064licensee's application for the proposed

3069dealership, such dealer or its predecessor

3075made 25 percent of its retail sales of new

3084motor vehicles to persons whose registered

3090household addresses were located within a

3096radius of 20 miles of the location of the

3105proposed additional or relocated motor

3110vehicle dealer; provided such existing

3115dealer is located in the same county or any

3124county contiguous to the county where the

3131additional or relocated dealer is proposed

3137to be located.

3140(b) If the proposed additional or

3146relocated motor vehicle dealer is to be

3153located in a county with a population of

3161more than 300,000 according to the m ost

3170recent data of the United States Census

3177Bureau or the data of the Bureau of Economic

3186and Business Research of the University of

3193Florida:

31941. Any existing motor vehicle dealer or

3201dealers of the same line - make have a

3210licensed franchise location within a radius

3216of 12.5 miles of the location of the

3224proposed additional or relocated motor

3229vehicle dealer; or

32322. Any existing motor vehicle dealer or

3239dealers of the same line - make can establish

3248that during any 12 - month period of the 36 -

3259month period preceding the filing of the

3266licensee's application for the proposed

3271dealership, such dealer or its predecessor

3277made 25 percent of its retail sales of new

3286motor vehicles to persons whose registered

3292household addresses were located within a

3298radius of 12.5 miles of th e location of the

3308proposed additional or relocated motor

3313vehicle dealer; provided such existing

3318dealer is located in the same county or any

3327county contiguous to the county where the

3334additional or relocated dealer is proposed

3340to be located.

3343(4) The depa rtment's decision to deny

3350issuance of a license under this section

3357shall remain in effect for a period of 12

3366months. The department shall not issue a

3373license for the proposed additional or

3379relocated motor vehicle dealer until a final

3386decision by the depar tment is rendered

3393determining that the application for the

3399motor vehicle dealer's license should be

3405granted.

3406(5) The opening or reopening of the same

3414or a successor motor vehicle dealer within

342112 months shall not be considered an

3428additional motor vehic le dealer subject to

3435protest within the meaning of this section ,

3442if:

3443(a) The opening or reopening is within

3450the same or an adjacent county, is within 2

3459miles of the former motor vehicle dealer

3466location,

3467(b) The proposed location is further from

3474eac h existing dealer of the same line - make

3484than the prior location is from each dealer

3492of the same line - make within 25 miles of the

3503new location,

3505(c) The opening or reopening is within

35126 miles of the prior location and, if any

3521existing motor vehicle deal er of the same

3529line - make is located within 15 miles of the

3539former location, the proposed location is no

3546closer to any existing dealer of the same

3554line - make, or

3558(d) The opening or reopening is within 6

3566miles of the prior location and, if all

3574existing mo tor vehicle dealers of the same

3582line - make are beyond 15 miles of the former

3592location, the proposed location is further

3598than 15 miles from any existing motor

3605vehicle dealer of the same line - make.

3613Any other such opening or reopening shall

3620constitute an addi tional motor vehicle

3626dealer within the meaning of this section.

3633(emphasis added)

363517. The first issue to address is one of statutory

3645construction. It is true that Subsection 320.642(5)(a), Florida

3653Statutes, does not prescribe how the "within 2 miles" o f

3664existing dealership location in the statute shall be measured.

3673However, in the absence of anything in the statute to the

3684contrary, the undersigned finds that the legislative intent was

3693that this distance of "2 miles" meant "2 miles" in a straight

3705line f rom the existing dealership location to the proposed

3715dealership location.

371718. In statutory construction, courts have assumed that

3725when the Legislature used certain exact words or exact phrases

3735in the various subsections of a statute to mean the same thin g,

3748and in a broad sense the subsections of the chapter are in pari

3761material and should, to the extent that understanding of one

3771subsection may aid in interpretation of the other subsection, be

3781read and considered together. See Goldstein v. Acme Concrete

3790C orp. , 103 So. 2d 202 (Fla. 1958). Applying the above

3801assumption of the court to reading the above statute from

3811Subsections 320.642(2) through 320.642(5), places in context the

3819legislative concerns with maintaining competition between same

3826line franchised dealerships and the restrictive limitation to be

3835read in the relocation exemption of Subsection 320.642(5)(a),

3843Florida Statutes.

384519. The contention of Big Oaks is that in the phrase

"3856within 2 miles of the former motor vehicle dealer location,"

3866the word "l ocation" meant the legal description of the legal

3877boundary of the dealership property reflecting that the relevant

3886point of origin for measurement of the two - mile distance should

3898be the property's boundary rather than a particular building or

3908other point w ithin the boundary.

391420. Big Oaks also contends that any measuring scheme that

3924requires the entire proposed site to be within the two - mile ring

3937would violate sound principles of statutory construction; that

3945measuring the distance between a particular buil ding is contrary

3955to the statute and the evidence; and a center - to - center

3968measurement would reduce the two - mile ring and would invite

3979methodology disputes whenever the property is irregular in

3987shape.

398821. Big Oaks is correct in its contention that the word

"3999location" means the legal description of the legal boundary of

4009the dealership property. By identifying the geographical

4016center - point of the legal description of the existing and of the

4029proposed dealership sites, encircling each site could

4036accommodate la rge, small and irregular shaped sites, thereby

4045maintaining the integrity of both the legislative intent of

4054maintaining competition among same - line dealerships and the

4063relocation of the dealer's total business and service functions,

4072within a two - mile straig ht - line measurement from the existing

4085site, in toto.

408822. Big Oaks' second contention, that any requirement for

4097the proposed relocation site to be entirely within the two - mile

4109ring would violate sound principles of statutory construction,

4117misses the mark a nd ignores the intent of the Legislature to

4129maintain competition among same - line dealerships.

413623. Applying the above statutory construction to

4143Subsections 320.642(2)(a) through 320.642(3), Florida Statutes,

4149above, the Legislature used the term " within a radius of . . ."

4162in Subsections (3), (3)(b), 3(b)1., (3)(b)2., (5)(a), (5)(b),

4170and (5)(c), in the restrictive sense, evidencing an intent to

4180limit relocation of a same - line dealership to " within " a

4191specific distance from its existing dealership location.

4198Conversely, in Subsection (5)(d), the Legislature's use of the

4207words " further than . . ." evidences the intent of a non -

4220restrictive use of the limiting term " within ." (Emphasis added)

423024. Based upon the Findings of Fact herein above, a plain

4241reading dem onstrates that the legislative intent of Subsection

4250320.642(5)(a), Florida Statutes, to exempt same - line dealerships

4259seeking to relocate from challenges by other same - line

4269dealerships, only if and when the proposed relocation site 4 is

4280within the specific d istance of "2 miles" from the existing

4291site. All other relocation applicants must comply with

4299requirements contained in Subsections 320.642(1) through

4305320.6421(4), Florida Statutes.

430825. The carefully drawn exemption provision of Subsection

4316320.642(5)(a) , Florida Statues, reflects a deliberate

4322legislative choice to afford the benefit of this narrow two - mile

4334exemption to existing same - line dealerships, like Big Oaks, and

4345afford competitive protection to other same - line dealerships,

4354like Petitioners, who wo uld be subjected to territorial

4363intrusions by another same - line dealership relocation absent the

4373safeguards and opportunity to challenge such same - line

4382relocation specified in Subsections 320.642(1) through

4388320.642(4), Florida Statutes.

439126. Big Oaks fur ther contends that measuring from the

4401nearest corner to nearest corner is the simplest and most

4411precise way to satisfy the statutory requirements for exemption,

4420citing State ex rel. Fronton Exhibition Co. v. Stein , 198 So. 82

4432(Fla. 1940). Big Oaks' propos ed measuring method, nearest

4441corner to nearest corner, ignores not only the legislative

4450intended purpose of maintaining competition by the limiting

4458distance of the exemption provision but also ignores the reality

4468of irregular shapes and varying acreage siz es of present and

4479future dealership sites upon which relocation is sought.

4487Conversely, the encircled radius of the existing site, a

4496straight - line two - mile, to the encircled radius of the proposed

4509site method of measurement is equally applicable to all

4518rel ocation applications, accommodating any and all irregular

4526shaped acreage and acreage different sizes of both existing and

4536proposed particles of land.

454027. In Fronton , the Court was confronted with a statute

4550that provided that no permit shall be issued for operation of a

4562Jai - a - Lai Fronton to be constructed or operated "within 1,000

4576feet of any existing church or public school," and held that the

4588distance of "1,000 feet" meant 1,000 feet measured in a straight

4601line. Addressing this matter, the Court was conf ronted first

4611with statutory construction, and concluded that the legislative

4619intent was that the "distance of one thousand feet meant one

4630thousand feet in a straight line." Also, true in the case at

4642bar, "within 2 miles" contained in Subsection 320.642(5) (a),

4651Florida Statutes, means a two - mile straight - line measurement.

466228. The Court in Fronton went on to address the

4672application of the prohibition of no construction within 1,000

4682feet of public school. In doing so, the Court employed an

4693analysis of the f unctions of a "public school." With particular

4704note that "the word 'school' is a generic term, denoting 'an

4715institution or place for instruction or education, or the

4724collective body of instructors and pupils in any such place or

4735institution'; that a schoo l is not measured by walls of a

4747building; that two or more schools may exist in one building;

4758and that it is 'a place where systematic instruction in useful

4769branches is given by methods common to schools and institutions

4779of learning,'" Id. at 87. The Fron ton Court adopted the

4791broadest functional definition of a public school to mean the

4801physical land dimensions necessary for the performance of all

" 4810school functions " of the school under consideration. The Court

4819adopted the definition of "school" as found b y the Supreme Court

4831of Kansas, In re Sanders, 53 Kan. 191, 36P, 384, 349, 23 L.R.A.

4844603 , as "Any place or means of discipline, improvement,

4853instruction, or training," including "school," "school center,"

"4860school plant" and "school site." Id.

486629. Subsect ions 320.60(11)(a) and (b), Florida Statutes,

4874defines not only motor vehicle dealer but also lists those

4884functions engaged in by each motor vehicle dealer as follows:

4894(11)(a) "Motor vehicle dealer" means any

4900person, firm, company, corporation, or other

4906entity, who,

49081. Is licensed pursuant to s. 320.27 as a

"4917franchised motor vehicle dealer" and, for

4923commission, money, or other things of value,

4930repairs or services motor vehicles or used

4937motor vehicles pursuant to an agreement as

4944defined in subsection (1), or

49492. Who sells, exchanges, buys, leases or

4956rents, or offers, or attempts to negotiate a

4964sale or exchange of any interest in, motor

4972vehicles, or

49743. Who is engaged wholly or in part in

4983the business of selling motor vehicles,

4989whether or not such motor vehicles are owned

4997by such person, firm, company, or

5003corporation.

5004(b) Any person who repairs or services

5011three or more motor vehicles or used motor

5019vehicles as set forth in paragraph (a), or

5027who buys, sells, or deals in three or more

5036motor vehic les in any 12 - month period or who

5047offers or displays for sale three or more

5055motor vehicles in any 12 - month period shall

5064be prima facie presumed to be a motor

5072vehicle dealer. The terms "selling" and

"5078sale" include lease - purchase transactions."

508430. Apply ing the functional definition analysis to the

5093case at bar, the term "motor vehicle dealer" as defined

5103hereinabove, includes functions to be conducted by a motor

5112vehicle dealer or could be conducted by a motor vehicle dealer

5123on a specific site, and all func tions conducted or could be

5135conducted by a motor vehicle dealer on a proposed site. The

5146exemption allows for all functions of a franchised motor vehicle

5156dealer, not just a building or a specific location on a site, to

5169move from an existing location to a p roposed location, limited

5180only by a straight - line two - mile distance.

519031. Thus, to measure from any selected point of the

5200existing dealership site to any selected point on the proposed

5210dealership site, other than the encircled radius of existing

5219sites and the encircled radius of proposed sites, would be

5229contrary to the "within 2 miles" limitation as provided by the

5240exemption provision herein under considered.

524532. In the case at bar, accepting the method of measuring

5256the two - mile exemption advanced by Big Oaks, the proposed

5267relocation site is located at a distance less than two miles

5278from the existing dealership site. Conversely, accepting the

5286method of measuring the two - mile exemption advanced by

5296Petitioners, the proposed relocation is located at a distan ce

5306greater than two miles from the existing dealership site. Each

5316result is dependent wholly upon the initial selection of a

5326desired starting point on the existing site and selection of the

5337desired reference - point on the proposed site. The result of

5348thos e methods of measurement, advantage to the proposed

5357relocating dealership and/or disadvantage of same - line

5365competitors, is clearly not the legislative intent of exemption

5374from the rigorous requirements of Section 320.642(1), Florida

5382Statutes.

538333. In the case at bar, the proposed relocation site of

5394the Big Oaks' dealership, identified by its encircled

5402geographical center - point legal description, lies at a distance

5412greater than the limiting two - mile straight - line distance from

5424the Big Oaks dealership's existing land tract also identified by

5434its encircled geographical center - point legal description;

5442therefore, the relocation site proposed by Big Oaks does not

5452qualify for the exemption as provided in Subsection

5460320.642(5)(a), Florida Statutes.

546334. Ba sed upon the Findings of Fact herein above, Big

5474Oaks', a franchised dealership, proposed relocation is not

5482within the two - mile straight - line measurement exemption and

5493would constitute an additional dealership within the meaning of

5502Section 320.642, Florida Statutes.

550635. Therefore, prior to relocation taking place, Big Oaks

5515and General Motors Corporation and the Department shall be

5524required to comply with the notice requirements providing same -

5534line franchised dealerships an opportunity to demand an

5542establi shment determination as authorized by Section 320.642,

5550Florida Statutes.

5552RECOMMENDATION

5553It is RECOMMENDED that the Department of Highway Safety and

5563Motor Vehicles enter a final order DISMISSING the Protests filed

5573in this cause as premature, and ORDER the proposed additional

5583dealership be noticed as required by Section 320.642, Florida

5592Statutes.

5593DONE AND ENTERED this _____ day of August, 2002, in

5603Tallahassee, Leon County, Florida.

5607___________________________________

5608FRED L. BUCKINE

5611Administrative Law Judge

5614Division of Administrative Hearings

5618The DeSoto Building

56211230 Apalachee Parkway

5624Tallahassee, Florida 32399 - 3060

5629(850) 488 - 9675 SUNCOM 278 - 9675

5637Fax Filing (850) 921 - 6847

5643www.doah.state.fl.us

5644Filed with the Clerk of the

5650Division of Administrative Hearings

5654this _____ day of August, 2002.

5660ENDNOTES

56611/ Corner marker is the point that every Florida licensed land

5672surveyor begins his or her land survey. See Exhibit R - 2,

"5684Beginning at the northeast corner of the northeast quarter

5693. . . ." Contrary to Big Oa ks' contention that location of the

5707center - point of a parcel is different for each parcel of land

5720and unreliable, the geographical center point for each parcel is

5730different but can be determined for every parcel of land

5740surveyed by a Florida licensed land surveyor.

57472/ Radius means a line segment that joins the center with any

5759other point on its circumference and/or a line segment that

5769joins the center of a sphere with any point on its surface

5781and/or a line segment that joins the center of a regular polyg on

5794to any of its vertices [polygon]: a closed plane figure bounded

5805by three or more line segments. American Heritage Dictionary ,

5814page 1077 and page 1016.

58193/ Location, within the context of this Recommended Order,

5828means a tract of land that has been sur veyed and marked off.

5841American Heritage Dictionary , page 765.

58464/ Site means the place of plot of land where something was,

5858is, or is to be located. American Heritage Dictionary , page

58681210.

5869COPIES FURNISHED :

5872Michael J. Alderman, Esquire

5876Department of Highway Safety

5880and Motor Vehicles

58832900 Apalachee Parkway

5886Neil Kirkman Building, Room A432

5891Tallahassee, Florida 32399 - 0500

5896John W. Forehand, Esquire

5900Lewis, Longman & Walker, P.A.

5905125 South Gadsden Street

5909Suite 300

5911Tallahassee, Florida 32301

5914Fred J. L otterhos, III, Esquire

5920Holland & Knight, LLP

592450 North Laura Street, Suite 3900

5930Post Office Box 52687

5934Jacksonville, Florida 32201 - 2687

5939James R. Meyer, Esquire

5943225 Central Avenue, Suite 1

5948Post Office Box 1356

5952Bartow, Florida 33831 - 1356

5957Carl A. Ford, Director

5961Division of Motor Vehicles

5965Department of Highway Safety

5969and Motor Vehicles

5972Neil Kirkman Building, Room B - 439

5979Tallahassee, Florida 32399 - 0600

5984Enoch Jon Whitney, General Counsel

5989Department of Highway Safety

5993and Motor Vehicles

5996Neil Kirkman Buil ding

60002900 Apalachee Parkway

6003Tallahassee, Florida 32399 - 0500

6008David A. Miller, Esquire

6012Peterson & Myers, P.A.

6016Post Office Box 24628

6020Lakeland, Florida 33802 - 4628

6025NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6031All parties have the right to submit written exception s within

604215 days from the date of this Recommended Order. Any exceptions

6053to this Recommended Order should be filed with the agency that

6064will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 10/16/2003
Proceedings: Appellants` Response to A ppellee`s Suggestion of Mootness filed.
PDF:
Date: 06/10/2003
Proceedings: Reply Brief of Appellants filed.
PDF:
Date: 04/24/2003
Proceedings: Initial Brief of Appellants filed.
PDF:
Date: 04/03/2003
Proceedings: Notice of Appearance (filed by M. Abate).
PDF:
Date: 02/13/2003
Proceedings: Final Order filed.
PDF:
Date: 02/13/2003
Proceedings: Notice of Administrative Appeal (filed by J. Forehand).
PDF:
Date: 01/17/2003
Proceedings: Agency Final Order
PDF:
Date: 10/07/2002
Proceedings: Respondent`s Amendment by Interlineation filed.
PDF:
Date: 10/04/2002
Proceedings: Respondents` Reply to Petitioner`s Timeliness Argument filed.
PDF:
Date: 09/19/2002
Proceedings: Respondent`s Exceptions to Recommended Order on the Two-Mile Exemption Issue filed.
PDF:
Date: 09/12/2002
Proceedings: Letter to C. Ford from Judge Buckine enclosing amended pages 1, 2, and 27 of the recommended order issued.
PDF:
Date: 08/30/2002
Proceedings: Recommended Order
PDF:
Date: 08/30/2002
Proceedings: Recommended Order issued (hearing held May 24, 2002) CASE CLOSED.
PDF:
Date: 08/30/2002
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 08/05/2002
Proceedings: Respondent`s Notice of Filing Additional Survey filed.
PDF:
Date: 08/02/2002
Proceedings: Respondent`s Notice of Filing Additional Survey filed.
PDF:
Date: 08/02/2002
Proceedings: Petitioner`s Response to the July 16, 2002, Order of the Administrative Law Judge filed.
PDF:
Date: 07/31/2002
Proceedings: Letter to Judge Buckine from S. Campisi regarding relocation o Big Oaks Pontiac, Inc. filed.
PDF:
Date: 07/16/2002
Proceedings: Order issued. (Petitioner shall provide the undersigned, within 20 days from the date of this order, with the one additional copy of Petitioner`s Exhibit A and B, and Respondent shall provide one copy of Respodnent`s Exhibit 3)
PDF:
Date: 07/12/2002
Proceedings: Respondent General Motors Corpration`s Post-Hearing Memorandum on the Two-Mile Exemption Issue filed.
PDF:
Date: 07/12/2002
Proceedings: Proposed Recommended Order and Additional Memorandum of Petitioner, Cannon Automotive Group, Inc. filed.
PDF:
Date: 06/28/2002
Proceedings: Order Granting Joint Motion for Summary for Enlargement of Time issued. (deadline for filing proposed recommended orders is extended until July 12, 2002)
PDF:
Date: 06/28/2002
Proceedings: Joint Motion for Enlargement of Time filed.
PDF:
Date: 06/28/2002
Proceedings: Transcript filed.
PDF:
Date: 06/28/2002
Proceedings: Notice of Filing Transcript filed by Respondents.
Date: 05/24/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 05/23/2002
Proceedings: Letter to Judge Buckine from F. Lotterhos enclosing copies of the authorities cited in General Motors memorandum (filed via facsimile).
PDF:
Date: 05/21/2002
Proceedings: Respondent General Motors Corporation Memorandum on the Two-Mile Exemption Issue (filed via facsimile).
PDF:
Date: 05/20/2002
Proceedings: Memorandum of Petitioner, Cannon Automotive Group, Inc., in Support of Determination that the Proposed Relocation is of a Distance Greater than Two Miles filed.
PDF:
Date: 05/10/2002
Proceedings: Amended Notice of Hearing issued. (hearing set for May 24, 2002; 9:00 a.m.; Lakeland, FL, amended as to motion).
PDF:
Date: 05/09/2002
Proceedings: Order Granting Continuance issued (parties to advise status by May 31, 2002).
PDF:
Date: 02/14/2002
Proceedings: Order issued. (consolidated cases are: 01-004495, 01-004650)
PDF:
Date: 02/13/2002
Proceedings: (Proposed) Order Consolidating Cases for Hearing on Two-Mile Exemption filed.
PDF:
Date: 02/05/2002
Proceedings: Notice of Appearance (filed by J. Forehand).
PDF:
Date: 01/11/2002
Proceedings: Notice of Filing filed by Petitioner.
PDF:
Date: 01/08/2002
Proceedings: Cannon Automotive Group, Inc.`s Response to Order to Show Cause filed.
PDF:
Date: 01/04/2002
Proceedings: Notice of Telephone Hearing (filed by F. Lotterhos via facsimile).
PDF:
Date: 01/02/2002
Proceedings: General Motors Corporation`s Response to Order to Show Cause (filed via facsimile).
PDF:
Date: 01/02/2002
Proceedings: Motion for Enlargement of Time to Respond to Order to Show Cause (filed by Respondent via facsimile).
PDF:
Date: 12/31/2001
Proceedings: Notice of Filing (filed by Petitioner via facsimile).
PDF:
Date: 12/28/2001
Proceedings: Cannon Automotive Group, Inc.`s Response to Order to Show Cause (filed via facsimile).
PDF:
Date: 12/18/2001
Proceedings: Order to Show Cause issued (the parties shall respond to this order by December 30, 2001).
PDF:
Date: 12/13/2001
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 12/06/2001
Proceedings: Initial Order issued.
PDF:
Date: 12/05/2001
Proceedings: Notice of Appearance (filed by D. Miller).
PDF:
Date: 12/05/2001
Proceedings: Agency referral filed.
PDF:
Date: 08/05/2001
Proceedings: Relocation of Big Oaks Buick Ponitac GMC, Inc. filed.

Case Information

Judge:
FRED L. BUCKINE
Date Filed:
12/05/2001
Date Assignment:
12/06/2001
Last Docket Entry:
10/16/2003
Location:
Lakeland, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (6):