01-002149 Mazda Motor Of America, Inc., D/B/A Mazda North American Operations vs. Csa Imports, L.L.C.; Legacy Cadillac Oldsmobile Nissan, Inc.; And Elton S. Wetteland Status: Closed Recommended Order on Friday, July 27, 2001.

Summary: Proposal for transfer of franchise agreement not within the scope of Section 320.643, Florida Statutes, because it also proposes a simultaneous relocation of the dealership. Recommend dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAZDA MOTOR OF AMERICA, INC. , )

d/b/a MAZDA NORTH AMERICAN )

OPERATIONS , )

)

Petitioner , )

)

vs. ) Case No. 01-2149

)

CSA IMPORTS, L.L.C.; LEGACY )

CADILLAC OLDSMOBILE NISSAN , )

INC.; AND ELTON S. WETTELAND , )

)

Respondents. )

_______________________________)

RECOMMENDED ORDER OF DISMISSAL

This cause came before the undersigned on Petitioner's,

Mazda Motor of America, Inc., d/b/a Mazda North American

Operations, Motion for Entry of Recommended Order which was filed

on June 4, 2001. Respondents requested an extension of time in

which to file a response. The request was granted over objection

of Petitioner. Respondent CSA Imports, L.L.C. d/b/a Buddy

Hutchinson Mazda (CSA ), filed a response objecting to the motion.

Respondents Legacy Cadillac Oldsmobile Nissan, Inc. (Legacy) and

Elton S. Wetteland (Wetteland) filed a Notification of Adoption

of Co-Respondent's Response to Motion for Entry of Recommended

Order on June 29, 2001. On July 25, 2001, an evidentiary hearing

was heard on the motion.

This case commenced when Mazda filed a Verified Complaint on

May 29, 2001, pursuant to Sections 320.643 and 320.644, Florida

Statutes (2000). The Verified Complaint contests the proposed

transfer of ownership of CSA to Legacy and asserts that Sections

320.643 and 320.644, Florida Statutes, are not applicable to the

proposal, insofar as those statutes purport to require Mazda to

consider and approve the proposed transfer of ownership and

management of the dealership, as part of a proposed relocation of

the dealership.

The pending Motion for Entry of Recommended Order is in the

nature of Mazda's filing a motion to dismiss its own complaint.

Mazda seeks to obtain a ruling that the proposed transfer is not

within the scope of Section 230.643, Florida Statutes, because it

also proposed a simultaneous relocation of the dealership.

Further, Mazda asserts that the proposal to transfer executive

management control of the dealership to Wetteland is part of a

proposal for relocation of the dealership and therefore does not

invoke Section 320.644, Florida Statutes.

Section 230.643, Florida Statutes, states in pertinent part

that, "[n ]o such transfer, assignment, or sale will be valid

unless the transferee agrees in writing to comply with all

requirements of the franchise agreement." Mazda asserts that

Legacy did not comply with this statutory requirement.

Specifically, the franchise agreement in effect between Mazda and

CSA provides that the only authorized location for all operations

of the dealership is 2898 U.S. 1 South, St. Augustine, Florida.

The evidence shows that the proposed transfer of ownership is

contingent on Mazda's approval of the relocation of the

dealership to another location. The proposed asset purchase

agreement references this proposed relocation as does

correspondence from Legacy to Mazda which states, "[I ]t is my

intent, pending Mazda approval, to relocate the aforementioned

Mazda franchise." Moreover, the proposal for change of

ownership, management, and relocation must be viewed in its

totality. Hawkins v. Ford Motor Co. , 748 So. 2d 993 (Fla. 1999).

The issue raised in the instant case was addressed and

resolved in the case of Gus Machado Buick-GMC Truck, Inc. v.

General Motors Corp ., 623 So. 2d 810, 813 (Fla. 1st DCA 1993):

. . . we agree with the Department's implicit

construction of section 320.643(1),

recognizing that a 'transfer' of a motor

vehicle dealership does not include a

relocation. 'Transfer' is defined as

'chang[ing] over the possession or control of

(as, to transfer a title to land).' Black's

Law Dictionary 1497 (6th ed. 1990). Location

is certainly an important consideration in

any type of franchise agreement, and it is

undisputed that the franchise agreement at

bar contemplates a specific address. Thus,

it was reasonable for the Department to

interpret the transfer of a franchise under

section 320.643(1) as encompassing only use

of the same location and not a relocation.

* * *

To conclude, as it is undisputed that the

proposed transfer contemplated a relocation

of a dealership, the Department could

reasonably interpret the intended transfer as

failing to comply with the 'franchise then in

effect,' as required by section 320.643(1),

which thus rendered the proposed transfer

invalid. It therefore follows that the

provisions of section 320.643(1) are

inapplicable to the proposed transfer, and

the dismissal of GM's complaint, or its

failure to protest Potmakin's qualifications

in accordance with the statute, does not

result in the transfer of the franchise by

operation of law. We therefore affirm the

order of dismissal in Case No. 92-2644.

Respondents invite reconsideration of Machado . Respondents'

invitation to reconsider case precedent is declined.

Accordingly, it is recommended that Department of Highway

Safety and Motor Vehicles enter a final order dismissing the

Verified Complaint.

DONE AND ENTERED this 27th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of July, 2001.

COPIES FURNISHED:

James D. Adams, Esquire

Adams & Quinton, P.A.

7300 West Camino Real

Camino Real Centre, Suite 225

Boca Raton, Florida 34333

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Neil Kirkman Building, Room A432

Tallahassee, Florida 32399-0500

Robert A. Bass, Esquire

Myers, Forehand & Fuller, P.A.

402 Office Plaza Drive

Tallahassee, Florida 32301

Dean Bunch, Esquire

Sutherland, Asbill & Brennan, LLP

2282 Killearn Center Boulevard

Tallahassee, Florida 32308-3561

Carl A. Ford, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

2900 Apalachee Parkway

Neil Kirkman Building, Room B439

Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this recommended order should be filed with the agency that

will issue the final order in this case.