03-004251 Palm Beach Imports, Inc., D/B/A Braman Motorcars vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Friday, September 10, 2004.

Summary: A new BMW dealership resulted from the relocation and reopening of the former BMW dealership, within 12 months after closure of the former dealership at a location meeting statutory requirements. The new dealership cannot be considered subject to protest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH IMPORTS, INC., d/b/a )

BRAMAN MOTORCARS, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4251

)

DEPARTMENT OF HIGHWAY SAFETY )

AND MOTOR VEHICLES, )

)

Respondent, )

)

and )

)

BMW OF NORTH AMERICA, LLC, AND )

POMPANO IMPORTS, INC., d/b /a )

VISTA MOTORS, )

)

Intervenors. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing in Talla hassee, Florida, on

May 4th, 5th, and 6th, 2004.

APPEARANCES

For Petitioner: Loula M. Fuller, Esquire

Myers & Fuller, P.A.

Post Office Box 14497

2822 Remington Green Circle

Tallahassee, Florida 32317 - 4497

For Respondent: Enoch J. Whitney, Esquire

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399

For Intervenor BMW of North America, LLC :

Dean Bunch, Esquire

C. Everett Boyd, Jr., Esquire

Sutherland, Asbill & Brennan, LLP

2282 Killearn Center Boulevard

Tallahassee, Florida 32309 - 3576

For Intervenor Pompano Imports, Inc.:

John W. Forehand, Esquire

Wa lter E. Forehand, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether Vista Motors' new BMW

dealership at 4401 West Sample Road, Cocon ut Creek, resulted

from a relocation and reopening of Vista Motors' former BMW

dealership at 700 North Federal Highway, Pompano Beach, in

compliance with Section 320.642(5)(b), Florida Statutes, which

grants certain "reopening" dealers an exemption from pr otest.

PRELIMINARY STATEMENT

By letter dated October 15, 2003, Respondent Department of

Highway Safety and Motor Vehicles notified BMW of North America,

LLC that its dealer, Pompano Imports, Inc., d/b/a Vista Motors,

would be denied a license to operate a proposed BMW dealership

at 744 North Federal Highway, Pompano Beach, unless certain

conditions were met. Petitioner Palm Beach Imports, Inc.,

another BMW dealer and a competitor of Pompano Imports, soon

learned of this decision. Petitioner believed that the

Department's intended action with regard to Pompano Imports'

proposed BMW dealership implicitly treated Pompano Imports'

recently opened BMW dealership at 4401 West Sample Road, Coconut

Creek, as a non - "protestable" relocated dealership, rather than

a "protestable" additional dealership, as Petitioner would have

it.

On November 7, 2003, Petitioner filed a petition with the

Department, alleging therein that BMW of North America and

Pompano Imports were pretending that Pompano Imports had

relocated its BMW dealership from 700 North Federal Highway,

Pompano Beach (a previously licensed location), to 4401 West

Sample Road, Coconut Creek (a presently licensed location), in

order wrongfully to take advantage of Section 320.642(5),

Florida Statutes, which gr ants certain "reopening" dealers a

protest - exemption. According to Petitioner, the BMW dealership

on North Federal Highway had never actually been moved to, and

reopened at, 4401 West Sample Road, as evidenced by the fact

that BMW of North America and Pom pano Imports were attempting to

open an "additional" dealership at 744 North Federal Highway —— a

property which is adjacent to 700 North Federal Highway —— even

before the purported relocation had occurred. Petitioner

charged that, through this alleged sham relocation, BMW of North

America and Pompano Imports were maneuvering illicitly to defeat

Petitioner's right to protest the opening of a BMW dealership at

4401 West Sample Road.

The Department forwarded the petition to the Division of

Administrative Hearin gs ("DOAH"), where the undersigned was

assigned to preside in the matter. Thereafter, by motions filed

on November 21 and 25, 2003, respectively, Pompano Imports and

BMW of North America sought to intervene as parties. Both

motions were granted.

The fina l hearing was originally set for February 20, 2004.

The undersigned granted both of Petitioner's ensuing motions for

continuance, however, moving the final hearing first to April 6 -

8, 2004, and finally to May 4 - 6, 2004.

Before the final hearing, three tra de associations —— namely,

the South Florida Auto - Truck Dealer Association, Inc.; Florida

Automobile Dealers Association; and Greater Tampa Bay Automobile

Association, Inc. —— petitioned for leave to intervene or,

alternatively, to file a position statement or amicus brief.

These associations were not permitted to intervene, but they

were granted the opportunity to submit a position paper, which

they did, on the condition that a witness be made available at

hearing to testify about the positions taken, which w as done. 1

At the final hearing, Petitioner presented the testimony of

Norman Braman, its president and principal shareholder; Stanley

Krieger, who is Petitioner's general counsel; and Ronald

Reynolds, the Department's Dealers License Administrator.

Petiti oner offered portions of the depositions of the following

employees of BMW of North America: Philip Capossela,

Christopher Knettler, Frances McCaffrey, and Michael George.

Petitioner also offered portions of the depositions of the

following employees of Pompano Imports: Manuel Villamanan and

Jonathon Chariff.

The Department called Mr. Reynolds as a witness. BMW of

North America presented the testimony of its employees Edward

Huzyak and Gilbert English. BMW of North America also offered

portions of the depositions of Messrs. Capossela, Knettler, and

George and Ms. McCaffrey. Pompano Imports presented the

testimony of Michael Perrault and offered portions of the

depositions of Messrs. Villamanan and Chariff.

Petitioner's Exhibits 1 - 3, 8, 10, 13 - 21, 23 - 2 7, 41, 42,

44a, 44b, 48a - c, 53, 54, and 57 were received into evidence.

Intervenors' Exhibits 8 - 10, 13 - 17, 20, 21, 23, 25, 27 - 32, 38,

39, 41, 42, and 44 were also admitted into evidence.

At Petitioner's instance, official recognition was taken of

the fol lowing final orders: (1) General Motors Corp., et al. v.

Florida Dept. of Highway Safety and Motor Vehicles , DOAH Case

Nos. 91 - 2591RP, 91 - 2821R, 91 - 2822R, 91 - 2899R, 91 - 2901R, and 91 -

2902R ( Fla.Div.Admin.Hrgs. Sept. 22, 1993); and (2) General

Motors Corp., etc. v. Florida Dept. of Highway Safety and Motor

Vehicles , No. HSMV 91 - 076 - FOF - DMV (Fla.Dept. H.S.M.V. Sept. 27,

1991). Official recognition was also taken of BMW of North

America, LLC v. Department of Highway Safety and Motor Vehicles ,

DOAH Case Nos. 0 3 - 4250 and 03 - 4257, 2004 WL 833605

(Fla.Div.Admin.Hrgs. Apr. 15, 2004), and the related Final

Order, No. HSMV 04 - 224 - FOF - DMV (Fla.Dept. H.S.M.V. May 3, 2004).

The final hearing transcript was filed on July 15, 2004.

Thereafter, each party timely submitted a Proposed Recommended

Order before the established deadline, which was August 16,

2004.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2003 Florida Statutes.

FINDINGS OF FACT

1. In 1996, Intervenor BMW of North America, LLC ("BMW

NA") 2 unveiled a "market strategy" to all of the BMW dealers

doing business in Palm Beach, Broward, and Miami - Dade Counties

(hereafter, collectively, the "South Florida Dealers") whereby

each of them would be granted an additional or "satellite" BMW

dealership 3 provided, among other conditions, that each dealer

agreed to waive its protest rights under Section 320.642,

Florida Statutes, with regard to these satellite dealerships. 4

2. The South Florida Dealers comprised three distinct

business enterpr ises, which were often identified with reference

to their respective principals: Norman Braman, Charles Dascal,

and J. S. Holman. Mr. Braman held interests in BMW dealerships

located in Miami and West Palm Beach. One of Mr. Braman's

companies was (and i s) Petitioner Palm Beach Imports, Inc.,

d/b/a Braman Motorcars ("Braman"), which is the dealer operating

in West Palm Beach. Mr. Dascal held interests in BMW

dealerships located in Broward County and in Miami. One of Mr.

Dascal's companies was (and is) I ntervenor Pompano Imports,

Inc., d/b/a Vista Motors ("Vista"), which operated a BMW

dealership in Pompano Beach until October 7, 2003, and now does

business as a BMW dealer in the City of Coconut Creek, Florida.

Mr. Holman was a principal in Ft. Lauderdal e Imports, Ltd.

("Lauderdale"), a dealer doing business in Ft. Lauderdale. For

ease of reference the South Florida Dealers will be referred to

individually as Braman, Vista, and Lauderdale. 5

3. As originally conceived and formally presented to the

South Florida Dealers in December 1996, BMW NA's market strategy

called for Braman to be awarded a satellite dealership in Delray

Beach, a municipality which is situated in the southern part of

Palm Beach County, on the coast. Vista and Lauderdale, under

the or iginal plan, would have been offered satellite locations

in Broward County west of the Turnpike. BMW NA and the South

Florida Dealers never reached an agreement regarding this

particular strategy, however, because Vista objected to the

proposed Braman sat ellite in Delray Beach.

4. Notwithstanding the absence of an agreement involving

all of the South Florida Dealers, at some point in 1997 Vista

and BMW NA revisited the possibility, which had been discussed

from time to time over the past several years, of relocating

Vista's BMW dealership in Broward County from its Pompano Beach

location to a better location. Vista's facility in Pompano

Beach, whose street address was 700 North Federal Highway ("N.

Federal Hwy"), had become outdated and cramped, having been

built decades earlier, and BMW NA and Vista wanted Vista to have

a larger, more modern shop. Also, moving westward would place

the dealership closer to Interstate 95 and the Turnpike, making

it more accessible to customers. Thus, relocation made sen se

for a number of reasons.

5. In mid - 1997, BMW NA approved a plan to move Vista's BMW

dealership to a location in the City of Coconut Creek, Florida,

which is in western Broward County.

6. Acquiring the property to which Vista's dealership

would r elocate took time. An initial deal fell through due to

title defects. In late 1998, Vista entered into a contract to

purchase the "Lyons Creek piece," an 11 - acre parcel located near

the intersection of West Sample and Lyons Roads in Coconut

Creek. A few months later, by letter dated March 24, 1999, BMW

NA notified Braman that Vista had requested permission to

relocate its dealership to this property.

7. In the meantime, Vista launched another project: the

expansion of its service department at 700 N. Federal Hwy. To

accomplish this, Vista rented property, via a lease dated

February 1, 1999, from a neighboring automobile dealership

operated by Daewoo Motor America, Inc. ("Daewoo"). The Daewoo

dealership's address was 744 N. Federal Hwy.

8. Through i ts lease with Daewoo, Vista obtained the right

to use 24 "work stalls" located in an automobile service center

at 744 N. Federal Hwy. This arrangement increased Vista's

service capacity, allowing the BMW dealership to handle a larger

volume of the lucrati ve maintenance and repair business than had

previously been possible. Vista's customers probably were not

aware of the expansion, however, since all consumer transactions

continued to take place at 700 N. Federal Hwy.

9. By letter dated May 12, 1999, BMW NA notified

Respondent Department Of Highway Safety and Motor Vehicles (the

"Department") that Vista intended to relocate its BMW dealership

from 700 N. Federal Hwy to the Lyons Creek piece. BMW NA and

Vista took the position that, pursuant to Section 32 0.642(5),

Florida Statutes, 6 the proposed reopening of Vista's dealership

at the new location in Coconut Creek should not be considered

subject to competing dealers' administrative protests.

10. Vista finally obtained title to the Lyons Creek piece

in Mar ch 2000. Throughout the rest of the year 2000, Vista

proceeded to take steps towards relocating its BMW dealership,

having architectural plans for the new facilities drawn up and

applying for the necessary permits.

11. In late 2000, a new opportunity a rose for Vista. A

piece of property located at 4401 West Sample Road ("W. Sample

Rd") in Coconut Creek became available at an attractive price.

This property, which comprised approximately 19 usable acres,

suited Vista's needs better than the Lyons Creek piece because,

in addition to being larger, it included existing dealership

facilities, having once been the location of an AutoNation

dealer. Within a short time, Vista entered into a contract to

purchase the property at 4401 W. Sample Rd. Now, plans t o

relocate Vista's BMW dealership to the Lyons Creek piece were

shelved in favor of moving to AutoNation's former location. In

July 2001, Vista acquired title to the land and buildings at

4401 W. Sample Rd.

12. While Vista worked to ready the property at 4401 W.

Sample Rd for use as a BMW dealership, it also pursued a deal to

purchase the Daewoo property at 744 N. Federal Hwy, which was

adjacent to its existing dealership. In May 2002, Vista reached

a verbal agreement to buy this real estate, but Daewoo' s

bankruptcy complicated the deal. Litigation to enforce the oral

contract ensued.

13. In August 2002, BMW NA signed a letter of intent

approving Vista's request to relocate its BMW dealership to 4401

W. Sample Rd. Soon thereafter, by letter dated Sep tember 13,

2002, BMW NA notified the Department that Vista intended to

relocate its BMW dealership from 700 N. Federal Hwy to 4401 W.

Sample Rd in Coconut Creek. Just as in May 1999, BMW NA and

Vista took the position that this relocation should be

consid ered exempt, pursuant to Section 320.642(5), Florida

Statutes, from the protest provisions of Section 320.642.

14. Pursuant to Section 320.642(1)(d), Florida Statutes,

the Department caused BMW NA's September 13, 2002, notice of

relocation to be publishe d in the September 27, 2002, edition of

the Florida Administrative Weekly .

15. On September 27, 2002, also in accordance with Section

320.642(1)(d), the Department mailed copies of BMW NA's

September 13, 2002, notice of relocation to all existing BMW

de alers in Collier, Palm Beach, Miami - Dade, and Broward

Counties. Within two weeks, however, the Department mailed

letters to these same dealers explaining that the proposed

reopening of Vista's BMW dealership at 4401 W. Sample Rd would

not be a "protestabl e" event after all.

16. In November 2002, BMW NA presented the South Florida

Dealers with a draft Market Action Agreement in an attempt to

resurrect the market strategy that had died on the vine in 1996.

The draft agreement referred to the relocation of Vista's

dealership to 4401 W. Sample Rd, which was under way, and raised

the possibility of Vista's resuming BMW dealership operations at

700 N. Federal Hwy at some unspecified point in time after the

pending relocation. Specifically, the draft contract s tated:

Prior to the execution of this Agreement,

Vista Motor Company has requested that BMW

NA approve a relocation of its BMW

[dealership] from [700 North Federal

Highway] to a facility that is under

development at 4401 West Sample Road,

Coconut Creek, Fl orida (the "Sample Road

Location"). This request has been approved

and BMW NA provided notice of the relocation

to the [Department]. It also has been

approved by the [Department]. Immediately

upon completion of this relocation from [700

North Federal Hi ghway] to the Sample Road

Location, the North Federal Highway Location

will become an additional proposed location

that is the subject of this agreement not to

protest.

17. The draft Market Action Agreement offered Braman the

opportunity to open a satell ite dealership in north Palm Beach

County, suggesting the Town of Jupiter as the likeliest spot.

Braman had already determined that zoning restrictions in

Jupiter effectively forbade the opening of an automobile

dealership there, however, and Braman was n ot interested in

establishing a satellite dealership in another area north of its

West Palm Beach site, preferring instead to open an additional

BMW dealership in Delray Beach, which BMW NA would not approve.

Thus, Braman rejected the draft Market Action Agreement of

November 2002.

18. In March 2003, BMW NA notified Braman that the

proposed Market Action Agreement had failed for lack of the

South Florida Dealers' unanimous consent and that BMW NA

intended to move forward anyway on plans to establish sate llite

dealerships for Vista and Lauderdale. Braman was invited to

pursue the opportunity to open a satellite dealership in north

Palm Beach County.

19. By letter dated April 14, 2003, Vista formally

requested BMW NA's permission to open a satellite deal ership at

744 N. Federal Hwy, where the Daewoo dealership had been

located. Vista had not yet secured title to that property but

was getting close. Vista asked that it be allowed to "operate

out of the current facility" at 700 N. Federal Hwy if the effor t

to purchase the Daewoo property failed, "provided [the current

facility] is renovated in accordance with BMW corporate identity

standards."

20. On April 29, 2003, BMW NA and Vista entered into a

Letter of Intent authorizing Vista to open a satellite

dea lership at the "Satellite Location," which was defined as 700

N. Federal Hwy and 744 N. Federal Hwy. This Letter of Intent

called for Vista to sell new BMW automobiles at 744 N. Federal

Hwy and to sell "Certified Pre - Owned" (used) vehicles at 700 N.

Feder al Hwy.

21. By letter dated May 5, 2003, BMW NA notified the

Department that Vista planned to establish an additional or

"supplemental" BMW dealership at 744 N. Federal Hwy, to be

opened on or after June 30, 2003. As required by statute, the

Department n ot only caused a notice to be published in the

May 16, 2003, edition of the Florida Administrative Weekly

regarding this putative supplemental dealership, but also it

mailed copies of BMW NA's May 5, 2003, notice to all existing

BMW dealers in Collier, Pa lm Beach, Miami - Dade, and Broward

Counties. No dealer timely protested Vista's intended opening

of a supplemental dealership at 744 N. Federal Hwy.

22. Ordinarily, following an "unprotested" notice, the

Department enters a final order authorizing the iss uance of a

license for the proposed additional or relocated dealership upon

the applicant's satisfaction of all other requirements for

licensure. In this case, however, before the entry of such an

order, the Department learned that 744 N. Federal Hwy and 700 N.

Federal Hwy were contiguous properties.

23. Based on this information, the Department informed BMW

NA and Vista, by letter dated July 10, 2003, of its decision

that because Vista was still operating a BMW dealership at 700

N. Federal Hwy, and beca use 744 N. Federal Hwy was immediately

adjacent to the existing dealership, the proposed supplemental

dealership at 744 N. Federal Hwy would be deemed an "expansion"

of the existing dealership, as opposed to an "additional"

dealership. The Department furt her concluded that: (1) a

license was not needed and hence would not be issued for the

expansion of Vista's dealership into 744 N. Federal Hwy; (2) the

opening of the dealership that Vista proposed to establish at

4401 W. Sample Rd, which would come into being as Vista's

existing dealership expanded, could not be considered exempt

from protest, as previously thought, for no "relocation" would

be occurring; and (3) notice and an opportunity to protest would

need to be provided with respect to 4401 W. Sample Rd before a

license for an additional dealership at that location could be

issued.

24. BMW NA and Vista each requested a hearing to challenge

the Department's findings and conclusions, initiating,

respectively, DOAH Case Nos. 03 - 2969 and 03 - 2970. Thes e cases

were subsequently consolidated, and Braman was allowed to

intervene in them.

25. On September 18, 2003, while the above - mentioned

administrative litigation was pending, Vista filed an

application with the Department for modification of its license ,

to reflect the relocation of Vista's BMW dealership from 700 N.

Federal Hwy to 4401 W. Sample Rd. Vista asserted that the

planned reopening at 4401 W. Sample Rd would not be subject to

protest, noting in its cover letter to the Department, dated

Septemb er 12, 2003, that BMW NA had previously "notified [the

Department] of the applicability of [the Section 320.642(5)]

exemption via correspondence . . . dated September 13, 2002." 7

26. On September 30, 2003, before the final hearing in the

consolidated admi nistrative proceeding, the Department, BMW NA,

and Vista (but not Braman) entered into a settlement agreement.

Upon being advised of the settlement, the presiding

administrative law judge (not the undersigned) closed DOAH's

files in Case Nos. 03 - 2969 and 03 - 2970 and relinquished

jurisdiction to the Department.

27. Pursuant to the referenced settlement agreement, Vista

notified the Department by letter dated October 7, 2003, that

Vista would cease all BMW dealership operations at 700 N.

Federal Hwy at the close of business that day and would commence

BMW dealership operations at 4401 W. Sample Rd on October 8,

2003. Promptly upon receipt of this notice, the Department

modified Vista's motor vehicle dealer license to permit Vista to

conduct BMW dealership a ctivities at 4401 W. Sample Rd. This

modification effectively "de - licensed" Vista as a BMW dealer at

700 N. Federal Hwy.

28. On October 7, 2003, as promised, Vista stopped selling

and servicing BMW automobiles at 700 N. Federal Hwy. and moved

its dealers hip to 4401 W. Sample Rd. 8 To effect the move, Vista

relocated its inventory of new and used BMW vehicles, along with

other line - make used automobiles that had been taken in trade

for BMW vehicles, plus BMW - specific equipment, tools, and parts.

Employees of Vista's BMW dealership were transferred to the new

worksite.

29. On October 8, 2003, Vista started selling and

servicing BMW passenger cars and BMW light trucks at 4401 W.

Sample Rd. 9 It is undisputed that from October 8, 2003, through

the final h earing in this cause, Vista did not conduct any BMW -

related dealership operations at the N. Federal Hwy location.

In other words, Vista's BMW dealership was continuously "closed"

during that period of time. 10

30. By letter dated October 15, 2003, in a ccordance with

the settlement agreement referenced above, the Department

notified BMW NA and Vista that it intended not to issue Vista a

license to operate a BMW dealership at 744 N. Federal Hwy unless

and until (a) Vista first relocated to 4401 W. Sample Rd and

thereafter BMW NA gave the Department another notice of its

intent to allow Vista to open a dealership at 744 N. Federal

Hwy, which notice would, upon publication, create a new point of

entry for substantially affected dealers to protest the latter

project; and (b) all other legal requirements for licensure were

met, including the failure of any protest that might timely be

filed.

31. BMW NA and Vista each timely challenged the

Department's preliminary determination, initiating DOAH Case

Nos. 03 - 425 0 and 03 - 4277, respectively, which were consolidated

and tried together before the undersigned on February 10, 2004.

The resulting Recommended Order urged the Department to proceed

in accordance with its previously announced intention. See BMW

of North A merica, LLC v. Department of Highway Safety and Motor

Vehicles , DOAH Case Nos. 03 - 4250 and 03 - 4257, 2004 WL 833605,

*10 (Fla.Div.Admin.Hrgs. Apr. 15, 2004). On May 3, 2004, the

Department adopted the Recommended Order as its Final Order.

See Final Order No. HSMV 04 - 224 - FOF - DMV (Fla.Dept. H.S.M.V.

May 3, 2004).

32. As of the final hearing in this case, no new notice

had been provided to the Department of BMW NA's intention to

permit Vista to establish an additional BMW dealership at 700 -

744 N. Federal H wy. Nevertheless, the evidence introduced at

hearing shows that, as of early May 2004, BMW NA and Vista were

still planning for Vista someday to open a BMW dealership at the

former location.

Vocabulary

33. To facilitate the ensuing discussion, it will be

helpful to develop a vocabulary tailored to the facts and issues

presented. As used herein, the term "source site" will refer to

the location ( i.e. the place) from which a dealership has been,

or will be, moved. Thus, 700 N. Federal Hwy is (or is cla imed

to be) a source site.

34. The term "source dealership" shall mean a dealership

that will be relocated to another place. Thus, a source

dealership exists, as such, only at a source site. In this

case, the BMW dealership that Vista operated at 700 N. Federal

Hwy until October 7, 2003, was (or is claimed to have been) a

source dealership.

35. The term "target site" shall refer to any location to

which a source dealership has been, or will be, moved. Here,

then, 4401 W. Sample Rd is (or is claimed to be) a target site.

36. A dealership established, or proposed to be opened, at

a target site will be called a "target dealership." Thus, a

target dealership exists, as such, only at a target site.

Vista's presently licensed BMW dealership at 4401 W. S ample Rd

is (or is claimed to be) as target dealership.

37. It should be kept in mind that the terms "source

dealership" and "target dealership" refer to two sides of the

same coin —— not to two separate coins. This is because, to speak

of relocating or m oving a dealership from one place to another

is to imply, necessarily, that the source dealership and the

target dealership are in some meaningful senses the same

dealership (call it the "source - target dealership"), located

first at one place (the source s ite), then at another (the

target site). Indeed, § 320.642(5) requires that the reopening

dealership be the same dealership 11 (if it is not a successor

dealership 12 ) for the exemption to apply. 13 The bottom line is,

if the source dealership and the target d ealership are not the

same dealership, then the exemption cannot apply. Id.

38. Imagining the source - target dealership as a unity is

difficult, however, because one of the chief characteristics

that define any dealership is its location . (Other

distin guishing features include, without limitation, the

identity of the dealer and the line - make vehicles being offered

for sale.) Indeed, most people would consider a dealership

located at one place to be separate and distinct from a

dealership located somewh ere else, even if the two were owned

and operated by the same dealer and authorized to sell the same

line - make vehicles. Of course, location cannot be moved, which

raises the question: How can the source dealership and the

target dealership really be the same dealership?

39. Without attempting to answer that question completely,

it is clear that maintaining the unity of the source - target

dealership requires minimally that the source - target dealership

have an effective market presence —— that is, be licens ed to

operate and open for business —— at but one place at a time,

either the source location or the target location. In other

words, however this "coin" is ultimately defined, logically it

must be, at any given moment, either "heads" up or "tails" up,

not heads and tails simultaneously. Therefore, whatever else a

true "relocation" entails, i.e. however that term and its

cognates are ultimately defined, it can be said at a minimum

that a true relocation is not complete until the source

dealership disappears as such, having been turned into the

target dealership.

40. One more term before moving on: "backfill dealership"

shall refer to a dealership that is or will be: (a) opened at a

source site after the relocation from that site of the source -

target dea lership; (b) owned and operated by, or under the

effective control of, the same dealer who owns and operates or

effectively controls the source - target dealership, which

dealership is now present in the marketplace solely as a target

dealership; and (c) off ering for sale the same line - make

vehicles as the source - target dealership. In this case, the BMW

dealership that Vista plans to open at 700 - 744 N. Federal Hwy

would be a backfill dealership.

41. Having formulated a vocabulary, the central disputes

in t his case can easily be identified. It should be readily

apparent that an attempt to establish a backfill dealership

calls into question the genuineness of the previous relocation

of the source - target dealership from the source site to the

target site. Th is is because the opening of a backfill

dealership results in the market presence of two symbiotic

dealerships —— an outcome not obviously distinguishable from that

which would obtain if, instead of relocating the source - target

dealership, the dealer had sim ply opened an additional

dealership to complement his existing dealership. Put another

way, to continue with the earlier metaphor, the net result is

the presence of two coins where before there was one. The

question thus becomes whether these coins shoul d be labeled,

respectively, (a) backfill dealership and source - target

dealership or (b) existing dealership and additional dealership.

Incipient Policies

42. BMW NA and Vista are the first distributor and dealer

to attempt to execute an exempt relocati on - backfill maneuver in

Florida. In the course of responding to the issues raised by

this novel use of Section 320.642(5), the Department has

developed several policies that interpret this exemption as

applied to the facts at hand.

43. For purposes of d iscussion, the relevant incipient

policies can be fairly described 14 as follows:

A. A dealership that is opened at a site

contiguous to the source site from which a

source dealership of the same line - make was

relocated will be treated as a backfill

dealers hip, provided the two dealerships are

under common ownership or control.

B. Establishing a backfill dealership does

not necessarily defeat a prior claim of

relocation - exemption; rather, under certain

circumstances, a dealer can take advantage

of the relo cation - exemption and also

establish a backfill dealership.

C. A backfill dealership does not defeat a

prior claim of relocation - exemption if the

following requirements are met:

(1) There was a "relocation in fact" of

the source dealership from the so urce site

to the target site. A "relocation in fact"

has occurred when, at a minimum, all of the

following have happened:

(a) The source dealership's license

was modified to show that dealership

operations are now permitted only at the

target site.

(b) Dealership operations at the

source site completely stopped ( i.e. the

source dealership closed and did not reopen

in the ordinary course of business).

(c) There was an actual, physical move

that entailed, but was not necessarily

limited to, the re location of inventory to

the target site.

(2) Notice regarding the establishment of

the backfill dealership was given to the

Department after the "relocation in fact"

had occurred.

(3) Dealership operations at the source

site were not resumed ( i. e. the backfill

dealership did not open to the public for

business) until after the protest period

associated with the backfill dealership

formally concluded and a license authorizing

the backfill dealership was issued.

Braman's Theory of the Case

44. The linchpin of Braman's theory of the case is its

contention that, for a relocation to fall within the Section

320.642(5) exemption, the distributor and the dealer claiming

the exemption must have formed, as of the date of notifying the

Department about the relocation, a specific intent regarding the

dealer's future plans vis - à - vis the source site —— or at least

they must not have formed certain intentions relative thereto.

Stating the requisite intention affirmatively, Braman suggests

that the distribu tor and dealer must intend to "abandon" the

source site, i.e. to leave the source site with the intention of

never again establishing another dealership there of the same

line - make as the source dealership. Alternatively, Braman

argues that, at a minimum, the distributor and dealer must not

have formed the intention of opening a backfill dealership.

45. On the foregoing premise, Braman argues that BMW NA

and Vista never intended for Vista to "relocate" its BMW

dealership to 4401 W. Sample Rd within the s trictures of Section

320.642(5), because they intended, alternatively, (a) for

Vista's BMW dealership at N. Federal Hwy to remain open and

never close; (b) for Vista's BMW dealership at N. Federal Hwy to

open simultaneously with the opening of a BMW dealer ship at 4401

W. Sample Rd; or (c) for Vista's BMW dealership at N. Federal

Hwy to open as soon as possible after the opening of a BMW

dealership at 4401 W. Sample Rd. Braman asserts that the

intentions of BMW NA and Vista render the BMW dealership at 4401

N. Federal Hwy ineligible for the relocation - exemption.

46. Braman then goes a step farther, contending that BMW

NA's September 13, 2002, notice to the Department, which

announced that Vista would relocate its BMW dealership from 700

N. Federal Hwy to 4 401 W. Sample Rd, was false and even

fraudulent. Proof of this alleged deception, according to

Braman, reached the Department in May 2003 in the form of BMW

NA's notice regarding the proposal to establish Vista's backfill

dealership at 744 N. Federal Hwy. Braman claims that when the

Department received Braman's May 5, 2003, notice, it should

immediately have published a notice in the Florida

Administrative Weekly that Vista's BMW dealership at 4401 W.

Sample Rd was subject to protest.

47. Although Brama n has expended a great deal of effort

trying to depict BMW NA's September 13, 2002, notice as "false"

and accusing BMW NA and Vista of intentionally deceiving the

Department regarding their "true" plans, Braman's "deception

theory" is subordinate to its co ntention that the relocation -

exemption can only be claimed properly by distributors and

dealers having a specific intent. That Braman's "deception

theory" is dependent on its "specific intent theory" is shown by

observing that if the specific intent theor y were legally

correct, and if further (as Braman asserts) BMW NA and Vista did

not in fact have the requisite specific intent, then it would be

irrelevant whether BMW NA and Vista also sought to deceive the

Department 15 , for their intentions regarding 700 - 744 N. Federal

Hwy would render Section 320.642(5) inapplicable, no matter

what. 16 On the other hand, if Braman were wrong concerning the

specific intent requirement it advocates, then BMW NA's notice

to the Department regarding the relocation of Vista's B MW

dealership could not have been false in the way Braman contends

it was.

48. In short, then, Braman effectively has staked its case

on the proposition that the relocation - exemption requires a

specific intent. The deception theory lends little, if any,

support to Braman's primary position and therefore will not be

given further attention herein.

49. That said, Braman's "specific intent theory" logically

concedes an important point, by necessary implication, which is

that backfill dealerships do not necessarily defeat prior

assertions of the relocation - exemption. This is because if the

establishment of a backfill dealership always undid the dealer's

previous reliance on the relocation - exemption, thereby exposing

his target dealership to protest, then the dealer's intentions

regarding the source site, whatever they might have been, would

never be relevant. Simply put, to urge explicitly (as Braman

does) that having the "wrong" intentions regarding the source

site makes Section 320.642(5) inapplicable is to admit

implicitly that harboring the "right" intentions regarding the

source site keeps alive the possibility that the dealer can take

advantage of the relocation - exemption and also establish a

backfill dealership some day. Consequently, having put a ll of

its eggs in the specific intent basket, Braman is not in a

position to disagree with the Department's Incipient Policy "B"

as described above. 17

50. Indeed, while Braman has taken issue broadly with most

of the Department's incipient policies, its only promising lines

of attack proceed along two fronts. One is a somewhat secondary

thrust: Braman complains that the Department's incipient

policies permit the opening of a backfill dealership within 12

months after the closure of the source dealershi p, which opening

(Braman argues) would itself be exempt from protest under

Section 320.642(5). Thus, Braman asserts that the Department's

Incipient Policy "C(3)," which purports to make backfill

dealerships "protestable," contravenes the plain statutory

l anguage.

51. With regard to this point, while the possibility

certainly exists, it is not altogether clear that the Department

would permit a backfill dealership to open within 12 months

after the closure of a source dealership, because the Department

ha s not been confronted with such a scenario. Moreover, there

is no reasonable possibility that Vista will open a BMW

dealership at 700 - 744 N. Federal Hwy on or before October 7,

2004. Therefore, although Braman has raised an interesting

question about Inc ipient Policy "C(3)," which the undersigned

will revisit below, the issue cannot be outcome determinative,

because it addresses a contingency that has not occurred (and

will not occur) in this case.

52. Braman's real dispute with the Department, when all is

said and done, is that the Department has chosen not to impose

the specific intent requirement that Braman champions. Indeed,

with the possible exception of some modifications to Incipient

Policy "C(3)" to correct for the potential problem just

identif ied, Braman could not object to the Department's

incipient policies if they included a "C(1)(d)" as follows:

As of the date the Department was notified

about the relocation, the distributor and

the dealer who claimed the relocation -

exemption either specifi cally intended for

the dealer to leave the source site and

never again open another dealership there of

the same line - make as the source dealership

or, alternatively, had no intentions of

establishing a backfill dealership.

53. The question whether Brama n's specific intent theory

holds thus becomes the threshold legal issue. If the answer

were negative, then Braman cannot prevail here. 18 If the answer

were affirmative, it would then be necessary to make ultimate

factual determinations regarding BMW NA an d Vista's intentions

concerning 700 - 744 N. Federal Hwy.

CONCLUSIONS OF LAW

54. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

55. The p arties have stipulated that Braman, being the one

disputing the Department's determination regarding the non -

"protestability" of Vista's BMW dealership at 4401 W. Sample Rd,

has the burden of going proving its allegations by a

preponderance of the evidence . See , e.g. , Environmental Trust

v. State Dept. of Environmental Protection , 714 So. 2d 493, 497

(Fla. 1st DCA 1998)("A party who asserts a disputed claim before

an administrative agency generally has the burden of going

forward with the evidence as well as the ultimate burden of

establishing the basis for the claim."). 19 To the extent the

Department seeks to validate agency action based upon incipient

policies, the Department has the burden of proving the

reasonableness and factual accuracy thereof. See , e.g. , St.

Francis Hosp., Inc. v. Department of Health and Rehabilitative

Services , 553 So. 2d 1351, 1354 (Fla. 1st DCA 1989).

56. Turning to the merits, the entirety of the exemption

statute is quoted in endnote 6, but for easy reference here

again is th e pertinent sentence thereof:

The opening or reopening of the same or a

successor motor vehicle dealer within 12

months shall not be considered an additional

motor vehicle dealer subject to protest

within the meaning of this section, if

[certain other cond itions are met. 20 ]

§ 320.642(5), Fla. Stat.

57. As used in subsection (5), the noun "opening" clearly

refers to an initial act or instance of becoming open and hence

applies when the actor is a "successor motor vehicle dealer."

Conversely, the noun " reopening," which connotes a second or new

beginning, must apply when the actor is the "same . . . motor

vehicle dealer." If the exemption applies in this case,

therefore, it is because Vista reopened at 4401 W. Sample Rd the

same dealership that once did business at 700 N. Federal Hwy.

58. The statute does not define "reopening" (or

"opening"). It is necessarily implicit in the term "reopening,"

however, that some preceding act of closure must have occurred. 21

Indeed, the preceding act of closure is the event that triggers

the 12 - month period within which the reopening must occur. In

other words, to fall within the exemption, the dealer must

"reopen" his dealership within 12 months after previously having

"closed" this same dealership. The statute thus sets up a

dichotomy between "closed" and "reopened" but leaves to

regulation and litigation the work of deciding what these terms

should mean in practice.

59. The Department has chosen to interpret the exemption,

by rule, so as to include the relocation of an existing

dealership among the events potentially qualifying for the

exemption. Florida Administrative Code Rule 15C - 7.004 provides

in pertinent part as follows:

(1) Purpose and Scope. The purpose of this

rule is [among other things] to . . .

clari f[y] the conditions for licensing a

supplemental location and for the relocation

and reopening of existing dealerships .

* * *

(4) Application for Reopening or Successor

Dealership, or for Relocation of Existing

Dealership .

* * *

(b) An application for change of address by

an existing dealer under this section shall

be filed on form HSMV 84712, Application For

Change of Location (Address) Of Dealer In

Motor Vehicles, Mobile Homes or Recreational

Vehicles, which is hereby adopted by

ref erence, provided by the Department. The

dealer shall indicate which provision of

Section 320.642(5), Florida Statutes, if

any, it contends exempts the proposed

location from consideration as an additional

dealership.

(Emphasis added.)

60. It is doubtful that the Rule's drafters considered the

possibility of a backfill dealership; rather, they most likely

assumed, when speaking of the relocation of an existing

dealership, that there would be a zero - sum relationship between

the source site and the target s ite with respect to dealerships

of the same line - make as the source - target dealership. Put

another way, the drafters probably presupposed that the

relocation of an existing dealership pursuant to Section

320.642(5), being tantamount to a routine change of address,

would be a relatively minor event in the relevant market, which

in any event would not increase the number of dealers

representing any given line - make of automobile.

61. Such an assumption is understandable. The logic of

the exemption statute lies in the commonsense notion that if a

dealership which has closed for some reason happens to reopen

relatively quickly (within 12 months) at a location not too far

from where it was, then it is not necessary to conduct an

administrative proceeding to d etermine "adequacy of

representation" in the relevant market (which is the purpose of

a protest), for the reopening merely restores the market to the

status quo ante —— at a time before the market has fully adjusted

to the closure. In other words, the "need " for reopening the

recently closed dealership in the relevant market is effectively

presumed from the fact of the market's late loss of that same

dealership.

62. The statutory logic makes sense, of course, only if

the "reopening" (or target) dealership i s the "same" dealership

as the closed (or source) dealership —— which is why the exemption

applies only when the same dealership reopens. The statute,

however, does not explicitly define what makes two dealerships

the same dealership for purposes of the exe mption, and neither

does Rule 15C - 7.004. Rather, if a dealer who has closed one

dealership opens another dealership of the same line - make within

12 months of the closure, Section 320.642(5) simply assumes that

the newer dealership is the same as the older one, provided the

newer dealership is located within the geographical boundaries

prescribed in subparts (a) through (d). This assumption is

consistent with the statutory logic mentioned above —— that, under

such circumstances, the reopening merely rest ores the relevant

market to the status quo ante, before the market has fully

adjusted to the loss of the dealership in question.

63. Despite this underlying assumption, Section 320.642(5)

does not expressly prohibit the opening of a backfill

dealership, a nd the prospect of a backfill dealership's opening

is not so inconsistent with the statutory logic that an implicit

prohibition must be found via statutory interpretation.

Nevertheless, the opening of an apparent backfill dealership

within 12 months after the closure of the putative source

dealership does create a dilemma: namely, which of the two

resulting dealerships is the same dealership as the one that

existed before there were two? The answer is important because

only the same dealership can reopen without first being exposed

to protest.

64. Braman's answer, as we have seen, is that if the

distributor and dealer intended, as of the date of notifying the

Department regarding the purported relocation, to reestablish

dealership operations at the locat ion of the dealership that was

due to "close," then there was not (and never could be) a

"relocation in fact." Consequently, according to Braman, where

the "wrong" intentions are manifested, the putative backfill

dealership cannot ever be considered a bac kfill dealership, but

rather must always be viewed as the same old, non - "protestable,"

"existing" dealership, which in actuality was never relocated,

even if it were closed for some period of time. Since, to

complete Braman's argument, there was no "reloc ation in fact,"

there can be no target dealership, but only an "additional"

dealership at the putative target site, different from the older

one, and hence subject to protest.

65. The problem with Braman's argument is that it fails to

take account of a br ight statutory line, which is that a dealer

who has once closed a dealership cannot reopen that same

dealership more than 12 months after the closure; rather, after

one year, such dealer can only open an "additional" dealership,

subject to protest. Sectio n 320.642(5) plainly does not allow a

dealer who has failed to reopen within 12 months to claim the

exemption notwithstanding such failure just because he really

and truly intended to reopen within one year. Thus, it is clear

that two dealerships can not b e the same dealership for purposes

of the relocation - exemption, regardless of their respective

locations, if the newer one was opened more than 12 months after

the closure of the older dealership, irrespective of anyone's

intent.

66. The upshot is that, w hen a dealership closes, neither

the intentions of the dealer who operated that dealership nor

those of his distributor are relevant to the question whether a

dealership that opens more than 12 months after such closure is

the same as the previously closed dealership: as a matter of

law the two dealerships are different, and the new one is a

"protestable" additional dealership.

67. In the instant case, it is undisputed that Braman's

BMW dealership at 700 N. Federal Hwy closed for business on

October 7, 2003. It is also undisputed that the very next day ——

well within 12 months after the closure of the Vista's BMW

dealership on N. Federal Hwy —— Vista opened another BMW

dealership at 4401 W. Sample Rd. And it is undisputed that this

new location falls withi n the geographical boundaries prescribed

in subparts (a) through (d) of Section 320.642(5), Florida

Statutes. Thus, the exemption statute allows the Department to

assume that the BMW dealership at 4401 W. Sample Rd is the same

one which existed at 700 N. Federal Hwy —— unless, that is, a

backfill dealership would open at 700 N. Federal Hwy (or a

contiguous property) on or before October 7, 2004, in which

event the Department would need to decide which of the two

resulting dealerships is the same dealership a s the one that

existed before there were two, for only that one could enjoy an

exempt reopening.

68. As it happens, the Department will not be called upon

to make that potentially difficult decision because the BMW

dealership that BMW NA and Vista would l ike to open at 700 - 744

N. Federal Hwy, being unlicensed, could not have opened lawfully

as of this writing in September 2004 and as a practical matter

cannot lawfully open on or before October 7, 2004, when it will

still be unlicensed. Therefore, if and w hen Vista opens a BMW

dealership at 700 - 744 N. Federal Hwy, such dealership will be,

as a matter of law, an additional dealership subject to protest,

not the same dealership that previously existed at the N.

Federal Hwy location, regardless of BMW NA and V ista's

intentions regarding dealership operations there, whatever those

intentions were. The possibility —— even probability —— that Vista

might open an additional BMW dealership at 700 - 744 N. Federal

Hwy, which dealership would necessarily be different (for

exemption purposes) than the one that previously existed there,

does not require the Department to reverse its conclusion that

Vista's existing BMW dealership at 4401 W. Sample Rd resulted

from the relocation and reopening of its former BMW dealership

at 7 00 N. Federal Hwy.

69. That said, the undersigned believes that the

Department's incipient policies do not presently provide an

adequate framework for deciding which of the two resulting

dealerships is the same dealership as that which existed before

ther e were two, where a backfill dealership opens within 12

months after the closure of the putative source dealership.

Thus, if Vista had reopened a BMW dealership at 700 - 744 N.

Federal Hwy before October 7, 2004, which it did not, then the

undersigned would have been unable, on the present record, to

make an ultimate determination regarding whether the BMW

dealerships located at 700 - 744 N. Federal Hwy and 4401 W. Sample

Rd should be labeled, respectively, (a) backfill dealership and

source - target dealership or (b) existing dealership and

additional dealership.

70. This deficiency is not detrimental to the Department's

position here, however, because it relates to an unrealized

contingency. The Department is entitled to work out a solution

to this abstract p roblem if and when it materializes. In the

meantime, to better reflect the particular facts and

circumstances currently under consideration, the undersigned

recommends that the Department accept, through the entry of a

final order in this case, the follow ing modification of its

Incipient Policy "C(3)":

Dealership operations at the source site

were not resumed ( i.e. the backfill

dealership did not open to the public for

business) until after the protest period

associated with the backfill dealership

formall y concluded and a license authorizing

the backfill dealership was issued;

provided, however, that in no event shall

the backfill dealership have opened within

12 months after the closure of the source

dealership, unless the dealer first

demonstrated to the Department's

satisfaction that the backfill dealership

was not the same as the source - target

dealership .

71. In sum, then, it is concluded that, where a backfill

dealership will open, if at all, more than 12 months after the

closure of the source dea lership, as here, Section 320.642(5)

does not require an examination of the distributor and dealer's

specific intentions regarding the use of the source site to

determine whether there was, previously, a "relocation in fact."

As a result, the Department c annot be faulted for choosing not

to consider specific intent a dispositive factor in deciding

whether BMW NA and Vista properly invoked the relocation -

exemption in connection with Vista's reopening at 4401 W. Sample

Rd.

72. Ultimately, therefore, it is concluded that Vista's

BMW dealership at 4401 W. Sample Rd should not be considered an

additional dealership subject to protest. Rather, pursuant to

Section 320.642(5), Florida Statutes, Vista's new BMW dealership

was exempt from protest and will remain e xempt from protest even

if Vista opens an additional BMW dealership at 700 - 744 N.

Federal Hwy. (Of course, any dealership that Vista opens on N.

Federal Hwy will be subject to protest.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is RECOMMENDED that the Department enter a final order

confirming that Vista's new BMW dealership at 4401 W. Sample Rd,

having resulted from the relocation and reopening of Vista's

former BMW dealership at 700 N. Federal Hwy, which reopening

o ccurred within 12 months after the closure of the former

dealership and at a location meeting the geographical

requirements of Section 320.642(5)(b), Florida Statutes, cannot

be considered an additional motor vehicle dealership subject to

protest.

DONE AND ENTERED this 10th day of September, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee , Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of September, 2004.

ENDNOTES

1 / The trade associations produced Dan O'Malley, who appeared as

a witness at hearing via telephone.

2 / BMW NA is an automobile "distributor" and "licensee." See §

320.60(5), (8), Fla. Stat.

3 / The term "satellite dealership" is not a statutory term of

art but rather is used in the context of BMW busine ss operations

to mean a dealership location secondary to an existing

dealership and lacking various indicia of independence, such as

a separate dealership agreement and an assigned primary market

area, associated with a primary BMW dealership site. Under §

320.642, Fla. Stat., a BMW satellite dealership constitutes an

"additional" dealership.

4 / Dealers who meet certain specific standing requirements are

entitled to protest a proposed additional or relocated motor

vehicle dealership. The issue in such p rotests, which are tried

before DOAH, is whether the existing dealers in the relevant

community or territory are providing adequate representation of

the line - make automobiles to be sold or serviced by the proposed

dealership. See § 320.642(2), Fla. Stat.

5 / Braman and Vista are "motor vehicle dealers" as defined in

§ 320.60(11), Fla. Stat., and each is a franchised BMW passenger

car dealer and BMW light truck dealer.

6 / Section 320.642(5), Florida Statutes , provides as follows:

(5) The opening or re opening of the same or

a successor motor vehicle dealer within 12

months shall not be considered an additional

motor vehicle dealer subject to protest

within the meaning of this section, if:

(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

each existing dealer of the same line - make

than the prior location is from each dealer

of the same line - make within 25 miles of the

new loca tion,

(c) The opening or reopening is within 6

miles of the prior location and, if any

existing motor vehicle dealer of the same

line - make is located within 15 miles of the

former location, the proposed location is no

closer to any existing dealer of the same

line - make, or

(d) The opening or reopening is within 6

miles of the prior location and, if all

existing motor vehicle dealers of the same

line - make are beyond 15 miles of the former

location, the proposed location is further

than 15 miles from any existing motor

vehicle dealer of the same line - make.

Any other such opening or reopening shall

constitute an additional motor vehicle

dealer within the meaning of this section.

7 / Interestingly, Vista's cover letter did not mention the fact

that the D epartment previously had rejected this very claim of

exemption, triggering the then - ongoing administrative

proceeding.

8 / Vista continued to operate a preexisting, separately licensed

Volkswagen dealership at 700 N. Federal Hwy.

9 / Vista continued to o perate a preexisting, separately licensed

MINI dealership at that location.

10 / This is not to suggest that Vista has since resumed BMW

dealership operations at N. Federal Hwy. The finding above

simply acknowledges the limits of the evidence in the recor d.

To be sure, the undersigned has no reason to believe (and in

fact doubts) that Vista commenced unlicensed BMW dealership

operations at its N. Federal Hwy location after the final

hearing in this cause.

11 / Although the statute literally requires that the opening or

reopening be of the same dealer , it is reasonably clear from the

context that the legislature meant dealership . Since neither

party has argued for a contrary legislative intent in this

regard, the undersigned will not burden this order with an

exegesis in support of the proposition that the nouns "dealer"

and "dealership," despite being separately defined statutory

terms of art, are fungible within the confines of § 320.642(5),

Fla. Stat.

12 / The subsequent discussion will not continue to a ccount for

alternative scenarios associated with successor dealerships, for

such possibilities have no bearing on the issues at hand.

13 / If the source dealership and the target dealership were not

essentially the same dealership, then it could hardly be said

that a dealership had been relocated, as opposed to, say, some

inventory.

14 / The text sets forth what the undersigned has found to be

fair and accurate statements of the policies underlying the

Department's actions, as ascertained from the sometimes

conflicting evidence in the record. Note that the undersigned's

summary of the Department's policies assumes familiarity with

the vocabulary defined earlier in the text. Note, too, that, by

stating the policies in general terms —— and more formally than

t he Department has done, the undersigned does not find or imply

that the Department has developed rules - by - definition. To the

contrary, the undersigned has concluded that these are incipient

policies in the truest sense, meaning policies that are only now

emerging, being developed and shaped through the crucible of

this controversy, and which have yet to crystallize into

definitive, consistently applicable statements.

15 / Of course, BMW NA and Vista's allegedly fraudulent intent

might be relevant in a different kind of case, e.g. one where

the Department was seeking to revoke Vista's motor vehicle

dealer license on the ground that it was fraudulently obtained,

see § 320.27(9)(a)1., Fla. Stat., but this is quite obviously

not such a case. Although it sh ould go without saying, the

relevance of a particular fact for the purposes of one

proceeding is not determinative of that same fact's relevance

for the purposes of another proceeding.

16 / It should be pointed out as well that, even if Braman were

correct concerning the necessity of having a specific intent to

claim the relocation - exemption, the conclusion would not

necessarily follow that BMW NA's notice to the Department was

"false." For that to be so, BMW NA would have needed to know

about the specific intent requirement and to understand that

such requirement made it impossible for Vista to proceed with an

exempt relocation. Otherwise, BMW NA could have believed in

good faith that it and Vista's reliance on Section 320.643(5)

was legitimate notwithsta nding their intentions with respect to

the N. Federal Hwy location.

17 / Theoretically, Braman could have argued in the alternative

that even if a specific intent regarding relocation were not

required to invoke § 320.642(5), Vista's BMW dealership at 4401

W. Sample Rd would be "protestable" nevertheless because of some

other alleged deficiency, but in actuality Braman did not

advance such an alternative argument.

18 / The evidence shows —— and Braman does not dispute —— that Vista

has effected a "relocation in fact" in accordance with Incipient

Policy "C(1)." It is also undisputed that Vista did not (as of

the final hearing) violate Incipient Policy "C(3)," and

therefore Vista's dealership at 4401 W. Sample Rd cannot be

deemed "protestable" on that account. F inally, Vista has not

yet (as of the final hearing) given notice to the Department

pursuant to Incipient Policy "C(2)"; hence its prior assertion

of the relocation - exemption cannot be nullified for

noncompliance therewith.

19 / The undersigned would have b een receptive to the argument

that, in this case, the burden of proof should fall on the party

relying on Section 320.642(5), Florida Statutes, see , e.g. ,

Ratley v. Batchelor , 599 So. 2d 1298, 1305 (Fla. 1st DCA

1991)(general rule is that burden of proving exemption generally

rests on one who claims its benefits)(collecting cases), but no

one has taken such a position. In any event, the outcome here

does not turn on the allocation of the burden of proof.

20 / It is undisputed that Vista's BMW dealership at 4401 W.

Sample Rd satisfies subpart (b) of subsection (5) and hence

meets the "other conditions."

21 / In situations involving the opening of a successor dealer, a

preceding act of closure is likewise necessarily implied —— the

closure of the predecessor d ealer, i.e. , the one being replaced.

COPIES FURNISHED :

Loula M. Fuller, Esquire

Myers & Fuller, P.A.

Post Office Box 14497

2822 Remington Green Circle

Tallahassee, Florida 32317 - 4497

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Fl orida 32399

Dean Bunch, Esquire

C. Everett Boyd, Jr., Esquire

Sutherland, Asbill & Brennan, LLP

2282 Killearn Center Boulevard

Tallahassee, Florida 32309 - 3576

John W. Forehand, Esquire

Walter E. Forehand, Esquire

Lewis, Longman & Walker, P.A.

125 S outh Gadsden Street, Suite 300

Tallahassee, Florida 32301

Enoch J. Whitney, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399

Carl A. Ford, Director

Division of Mot or Vehicles

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room 439

Tallahassee, Florida 32399 - 0600

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.