91-000217 General Motors Corporation/Chevrolet Motor Division vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Monday, July 15, 1991.

Summary: Auto dealer, whose license was revoked and who wished to name successor dealer, was not exempt from protest by existing dealers. Twelve months period of exemption expired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENERAL MOTORS CORPORATION, )

CHEVROLET MOTOR DIVISION, )

)

Petitioner, )

)

vs. )

)

FLORIDA DEPARTMENT OF HIGHWAY ) CASE NO. 91-0217

SAFETY AND MOTOR VEHICLES, )

)

Respondent, )

)

vs. )

)

POTAMRIN CHEVROLET, INC., and )

RELLEY CHEVROLET, INC., )

)

Intervenors. )

_______________________________)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative

Hearings, by its duly designated Hearing Officer, Daniel Manry,

held a formal hearing in the above-styled case on May 31, 1991,

in Tallahassee, Florida.

APPEARANCES

For Petitioner: James Williams, Esquire

Office of the General Counsel

General Motors Corporation

3031 West Grand Boulevard

Detroit, Michigan 48202

and

Dean Bunch, Esquire

Rumberger, Kirk, Caldwell,

Cabaniss, Burke & Wecheler

106 East College Avenue

Suite 700

Tallahassee, Florida 32301

For Respondent: Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Tallahassee, Florida 32399-0504

For Intervenors: James D. Adams, Esquire

7300 West Camino Real,

Boca Raton, Florida 33433

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether

Petitioner is entitled to the specific exemption in Section

320.642(5), Florida Statutes, from the general notice and

protest provisions in Section 320.642.

PRELIMINARY STATEMENT

Petitioner notified Respondent on December 5, 1990, of

Petitioner's intent to name a successor dealer in North Miami

Beach, Florida for Landmark Chevrolet Corp. d/b/a Alan Mandel

Chevrolet ("Landmark"). Petitioner claimed that the proposed

opening of the successor dealer was exempt under Section

320.642(5), Florida Statutes, from the notice and protest

provisions generally applicable under Section 320.642.

Respondent determined in a letter dated December 19, 1990, that

the proposed opening of the successor dealer was not exempt from

the notice and protest provisions of Section 320.642.

Petitioner filed a Petition for Administrative Hearing on

January 3, 1991, challenging Respondent's determination.

Alan Jay Chevrolet, Inc., ("Alan Jay") filed its

application on January 8, 1991, for a license as the successor

dealer in North Miami Beach, Florida. Respondent refused to act

on Alan Jay's application until this proceeding was resolved.

The Petition for Administrative Hearing was referred to the

Division of Administrative Hearings for assignment of a hearing

officer by letter dated January 4, 1991, and assigned to the

undersigned on January 11, 1991. Petitioner and Respondent

jointly moved to notify all Chevrolet dealers in Dade, Broward,

Collier, and Monroe Counties ("potential intervenors") and to

expedite this proceeding. 1

Petitioner requested that a formal hearing be scheduled for

February 15, 1991. Ruling on Petitioner's request was delayed

until the time had expired for responding to the notice to

potential intervenors. Petitions to intervene were filed by

Potankin Chevrolet, Inc. (" Potamkin") and Kelley Chevrolet, Inc.

("Kelley") and were granted on March 11, 1991, without objection

from either Petitioner or Respondent.

Petitioner filed an Emergency Motion to Toll Time on

January 25, 1991. The motion requested the undersigned to enter

a recommended order tolling the 12 month period of exemption in

Section 320.642(5), Florida Statutes, for opening a successor

dealer without notice and protest. The motion also requested

that partial jurisdiction be relinquished to Respondent for the

limited purpose of entering a final order adopting the

recommended order.

Petitioner's Emergency Motion to Toll Time was denied. The

undersigned determined that Respondent had issued a letter but

never taken any agency action in the form of an order or

otherwise denying Petitioner's application to open a replacement

dealership pursuant to the exemption from protest provided in

Section 320.642(5), Florida Statutes. 2 Jurisdiction was

relinquished to Respondent to formulate agency action with

respect to Petitioner's application. 3

Respondent entered a final order denying Petitioner's

Motion to Toll Time on April 11, 1991, and again referred the

matter to the Division of Administrative Hearings for assignment

of a hearing officer. The matter was again assigned to the

undersigned on April 12, 1991.

Intervenors moved to dismiss the proceeding for lack of

jurisdiction on April 26, 1991. Intervenors alleged that there

were no disputed issues of material fact and that the Division

of Administrative Hearings was without jurisdiction to conduct a

proceeding under Section 120.57(1), Florida Statutes. The

motion to dismiss was denied without prejudice.

The parties filed a Prehearing Stipulation on May 13, 1991,

which contained stipulations of fact and law. Intervenors filed

a Renewed Motion to Dismiss on May 14, 1991, asserting the same

grounds as those asserted in the original motion to dismiss.

The Renewed Motion to Dismiss was denied because the motion and

prehearing stipulation did not clearly establish the absence of

disputed issues of material fact.

At the formal hearing, Petitioner presented the testimony

of Jim Gurley, Account Manager, Tampa Branch, Chevrolet Motor

Division. Respondent presented the testimony of Neil Chamelin,

Operations and Management Consultant, Division of Motor

Vehicles, Florida Department of Highway Safety and Motor

Vehicles. Petitioner presented six exhibits. Respondent

presented one exhibit, and Intervenors presented three exhibits.

All of the exhibits were admitted in evidence.

A transcript of the record of the formal hearing was filed

with the undersigned on June 6, 1991. Proposed findings of fact

and conclusions of law were timely filed by the parties on June

18, 1991. The parties' proposed findings of fact are addressed

in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Landmark Chevrolet, Inc., d/b/a A1 Mandel Chevrolet

("Landmark") operated a Chevrolet dealership located at 15455

West Dixie Highway, North Miami Beach, Dade County, Florida

until August 2, 1989. Landmark operated the dealership pursuant

to: (a) a Dealer Sales and Service Agreement (the "Dealer

Agreement") between Landmark and Petitioner; and (b) a

Franchised Motor Vehicle Dealer License from Respondent, License

Number 9VF-10574. On August 2, 1989, Landmark ceased customary

sales and service business operations.

2. Respondent revoked Landmark's license on October 12,

1989. The license revocation resulted from an independent

investigation conducted by Respondent.

3. Petitioner notified Landmark on August 17, 1989, of

Petitioner's intent to terminate the Dealer Agreement pursuant

to Section 320.641, Florida Statutes. A copy of the notice of

intent to terminate was furnished to Respondent in accordance

with the requirements of Section 320.641.

4. Landmark filed a Complaint with Respondent on November

15, 1989, contesting Petitioner's termination of the Dealer

Agreement. The Complaint invoked the protection of Section

320.641, Florida Statutes. Pursuant to Section 320.641(7),

Petitioner was prohibited from terminating the Dealer Agreement

prior to a final adjudication in the franchise cancellation

proceeding.

5. Landmark's Complaint was referred to the Division of

Administrative Hearings on December 6, 1989. Petitioner filed a

motion to dismiss the Complaint. Petitioner's motion to dismiss

was granted in a recommended order entered by Hearing Officer

Michael Parrish on January 22, 1990. A final order dismissing

Landmark's Complaint was entered by Respondent on April 30,

1990. The time for appealing the final order expired on May 30,

1990, without appeal.

6. Petitioner notified Respondent on December 5, 1990, of

Petitioner's intent to open a successor dealer for Landmark.

Respondent determined in a letter dated December 19, 1990, that

the proposed opening of the successor dealer was not exempt from

the notice and protest provisions of Section 320.642, Florida

Statutes. Respondent determined that the 12 month period of

exemption began to run on October 12, 1989, when Landmark's

license was revoked and expired prior to the date of the

proposed opening of the successor dealer.

7. Petitioner had no prior notice of either Respondent's

intent to revoke Landmark's license or the actual revocation of

Landmark's license. Petitioner first learned of Respondent's

revocation of Landmark's license on December 19, 1990. At that

time, Respondent notified Petitioner that the 12 month period of

exemption from protest had expired for purposes of the proposed

opening of the successor dealer in North Miami Beach.

8. Respondent's determination that the 12 month period of

exemption in Section 320.642(5), Florida Statutes, began on the

date that Landmark's license was revoked constituted incipient

agency action. The incipient agency action taken by Respondent

deviated from Respondent's prior practice. Respondent's action

determined the substantial interests of Petitioner.

9. Petitioner was prohibited by Section 320.641(7),

Florida Statutes, from opening a successor dealer pursuant to

Section 320.642(5) until a final adjudication was entered in the

franchise cancellation proceeding under Section 320.641.

Landmark's license was revoked on October 12, 1989. The

franchise cancellation proceeding began on November 15, 1989,

when the Landmark filed its complaint. A final order was

entered in the franchise cancellation proceeding on April 30,

1990. The time for appeal expired on May 30, 1990. Petitioner

did not notify Respondent of Petitioner's intent to open a

successor dealer until December 5, 1990.

10. Proposed Rule 15C-7.004 was published in the Florida

Administrative Weekly , Vol. 17, No. 16, at page 1721, on April

19, 1991. Proposed Rule 15C-7.004(4)(a) provides:

(4) Application for Reopening or Successor

Dealership, or for Relocation of Existing

Dealership.

(a) If the license of an existing

franchised motor vehicle dealer-is revoked

for any reason, or surrendered, an

application for a license to permit the

reopening of the same dealer or a successor

dealer within twelve months of the license

revocation or surrender shall not be

considered the establishment of an

additional dealership if one of the

conditions set forth in Section 320.642(5)

is met by the proposed dealer. (emphasis

added) 4

11. Proposed Rule 15C-7.004(4)(a) was published prior to

the formal hearing but will not become effective until after the

formal hearing. 5 Respondent's determination in this proceeding,

that a closing occurs upon the revocation or surrender of a

dealer's license, is consistent with Proposed Rule 15C-7.004(4)

(a).

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

proceeding. Sections 120.54 and 120.56, Florida Statutes. 6 The

parties were duly noticed for the formal hearing.

13. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that it

is entitled to open a successor dealer without notice to and

protest by existing dealers pursuant to Section 320.642(5),

Florida Statutes. The burden of proof in an administrative

proceeding is on the party asserting the affirmative of the

issue unless the burden is otherwise specifically established by

statute. Young v. State, Department of Community Affairs , 567

So. 2d 2 (Fla. 3rd DCA 1990); Florida Department of

Transportation v. J.W.C. Co. Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981); Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

14.. The statutory framework applicable to this proceeding

is contained in Chapter 320, Florida Statutes, and particularly

Sections 320.61-320.70. Legislative intent for the applicable

statutory framework is:

. . . to protect the public health, safety,

and welfare of the citizens of the state by

regulating the licensing of motor vehicle

dealers and manufacturers, maintaining

competition, providing consumer protection

and fair trade and providing minorities with

opportunities for full participation as

motor vehicle dealers.

Section 320.605.

15. Chapter 320, Florida Statutes, creates a complex

relationship between manufacturers and dealers. The issues in

this proceeding must be determined in a manner that gives

purpose and effect to each of the various provisions in Chapter

320, including Sections 320.61-320.70, and that effectuates

legislative intent. D.B. v. State , 544 So. 2d 1108, 1109-1110

(Fla. 1st DCA 1989); State v. Zimmerman , 370 So. 2d 11794th DCA

1979); Forehand v. Board of Public Instruction of Duval County ,

166 So. 2d 668, 672 (Fla. 1st DCA 1964).

16. Section 320.642, Florida Statutes, authorizes existing

franchised motor vehicle dealers to protest the establishment of

an additional motor vehicle dealership or the relocation of an

existing dealer by a manufacturer within a community where the

same line-make vehicle is represented. Section 320.642(5)

carves out the following exemption from the notice and protest

provisions generally authorized in Section 320.642:

The opening or reopening of the same or a

successor motor vehicle dealer within twelve

months shall not be considered an additional

motor vehicle dealer subject to protest . .

. . Any other such opening or reopening

shall constitute an additional motor vehicle

dealer within the meaning of this section. 7

17. The terms "opening" and "reopening" are not defined in

Section 320.642(5), Florida Statutes. Similarly, the event that

begins the 12 month period of exemption from protest is not

prescribed in Sections 320.60-320.70.

18. The "opening" or "reopening" of the same or successor

dealer implicitly requires the prior closing of the same or

predecessor dealer. The same or predecessor dealer is closed

for purposes of Section 320.642(5), Florida Statutes, if:

(a) the dealership actually closes under

circumstances that are tantamount to

abandonment within the meaning of Section

320.641(4); 8

(b) the dealer's license is revoked by the

Department in a proceeding brought pursuant

to Section 320.27, or the dealer otherwise

surrenders its license;

(c) the dealer's license expires without

renewal;

(d) the dealer's license is transferred in

connection with a buy-sell agreement and the

relocation of the dealership; or

(e) the franchise agreement between the

dealer and the manufacturer is terminated by

the manufacturer pursuant to Section

320.641.9

19. Respondent determined that the 12 month period of

exemption begins from the date that the dealer's license is

either revoked or surrendered. Revocation or surrender of the

same or predecessor dealer's license eventually occurs in each

event of closing. In practice, the revocation or surrender of a

dealer license almost always occurs subsequent to other events

of closing such as abandonment, execution of a buy-sell

agreement, and cancellation of a franchise agreement. The

Department can not assure itself of information sufficient to

determine when the 12 month period of exemption from protest

begins if the 12 month period of exemption from protest begins

upon abandonment or execution of a buy-sell agreement. 10

20. The Department is statutorily charged with

responsibility for administering Chapter 320, Florida Statutes,

including the regulation of licenses pursuant to Section 320.27,

the protest procedures in Section 320.642, and the exemption

from protest in Section 320.642(5). The revocation or surrender

of a dealer's license is the only event of closing in which the

agency charged with responsibility for administering Sections

320.27, 320.642, and 320.642(5) has unilateral access to

information sufficient to determine the date for beginning the

12 month exemption from protest.

21. Respondent's determination that the 12 month period of

exemption from protest should begin from the date that a

dealer's license is revoked or surrendered does not preclude a

manufacturer from claiming the benefit of the statutory

exemption in Section 320.642 (5), Florida Statutes, for the

purpose of "reopening . . . the same . . . dealer." Since the

license for the same dealer would have been revoked or

surrendered, the manufacturer could not reopen the same dealer

in any event. Any other "closing" of the same dealer would not

begin the 12 month period of exemption from protest. In the

event of such a "closing", the manufacturer would be free to

"reopen" the same dealer at any time. The adverse affect on the

statutory exemption in Section 320.642 (5), if any, is limited

to the exemption for "opening . . . a successor . . . dealer . .

. ."

22. Section 320.641, Florida Statutes, prescribes

procedures for the cancellation of dealer franchise agreements

by manufacturers. Section 320.641 (7) prohibits a manufacturer

from naming a "replacement" dealer prior to the final

adjudication by the Department in the franchise cancellation

proceeding. 11

23. Section 320.641 (7), Florida Statutes, does not have

the effect of precluding GM from availing itself of the 12 month

period of exemption from protest otherwise available in Section

320.642 (5) if the license revocation or surrender occurs after

a final adjudication is entered in the franchise cancellation

proceeding. Section 320.641(7) would have precluded GM from

availing itself of the 12 month period of exemption from protest

if the license revocation or surrender had preceded the

franchise cancellation by more than 12 months. In this case,

the license revocation preceded the final order in the franchise

cancellation proceeding by approximately seven and a half

months. Petitioner had approximately four and a half months in

which to open a successor dealer exempt from notice and protest.

However, Petitioner did not notify Respondent of Petitioner's

intent to open a successor dealer exempt from notice and protest

until December 5, 1991. The 12 month period of exemption from

protest had expired approximately 60 days earlier.

24. GM asserts that beginning the 12 month period of

exemption on the date of revocation or surrender of a dealer's

license denies GM a clear point of entry in which to claim the

benefit of the exemption. A license revocation proceeding or

license surrender is conducted between the Department and the

dealer pursuant to Section 320.27, Florida Statutes. GM has no

statutory right to notice of the revocation or surrender and has

no right to be notified of when the 12 month period of exemption

from protest in Section 320.642 (5) has begun. In addition, GM

asserts that it is prohibited by Section 320.641 (7) from naming

a replacement dealer pursuant to Section 320.642 (5) during the

pendency of a franchise cancellation proceeding. GM claims that

beginning the 12 month period of exemption from protest on the

date of the license revocation or surrender ". . . threatens,

restricts, and may even eliminate the manufacturer's exemption"

whenever the license revocation or surrender precedes the

franchise cancellation proceeding. 12

25. The 12 month period of exemption from protest is not a

". . . substantial and vested right . . ." which Section

320.642(5), Florida Statutes, "commands." The quoted language

is more accurately applied to the right of existing dealers to

protest an additional dealership. Even if the quoted language

is equally applicable to the statutory exemption in Sec.

320.642(5), the two "rights" must be balanced in a manner that

effectuates the statement of legislative intent in Sec. 320.605.

26. The 12 month period of exemption from protest is an

exception to the statutory right of dealers to protest an

additional dealership or relocated dealer. Statutory exceptions

to general statutory provisions are to be strictly construed

against one attempting to take advantage of the exception.

State v. Nourse , 340 So. 2d 966, 969 (Fla. 3d DCA 1976).

Exemptions from general statutory requirements are to be

construed in the same manner as exceptions. See, e.g., Tribune

Company v. In re Public Records, P.C.S.O. , 493 So. 2d 480, 483

(Fla. 2d DCA 1986) (citing Cf. Nourse, which dealt with an

exception, for the proposition that exemptions from disclosure

in Ch. 119 should be construed narrowly); Haines v. St.

Petersburg Methodist Home. Inc. , 173 So. 2d 176, 179 (Fla. 2d

DCA 1965) (holding that exemptions from taxation are to be

strictly construed against the taxpayer and in favor of the

sovereign). Any ambiguity in the exception in Section

320.642(5), Florida Statutes, to the statutory right of existing

dealers to protest an additional or a relocated dealer is

properly construed in a manner that restricts the use of the

exception. Nourse , 340 So. 2d at 969.

27. The position asserted by GM is based upon the

assumption that one claiming the benefit of an exemption has a

due process right to notice from the agency that the period of

exemption has begun. GM cites no authority for such an

assumption and no authority has been found by the undersigned.

It is not unreasonable for the Department to place the onus of

determining when the statutory exemption begins to run upon the

person claiming the benefit of the exemption. GM has access to

public records maintained by the Department that disclose any

license revocation or surrender and can otherwise assure itself

of notice of a license revocation or surrender through the terms

of the franchise agreement.

28. Construing the statutory exemption in Section

320.642(5), Florida Statutes, narrowly against GM effectuates

the statement of legislative intent in Section 320.605. The

separate elements of legislative intent in Section 320.605 are

balanced in the protest procedures and criteria prescribed in

Section 320.642.

29. The procedures and criteria in Section 320.642,

Florida Statutes, must be followed in determining whether

existing dealers are providing adequate representation. The

procedures and criteria prescribed in Section 320.642 are

susceptible to change. Conditions that warrant an additional or

replacement dealer at a given time and place may not lead to a

similar result at a later time.

30. Respondent's position recognizes the fact that

conditions prescribed in Section 320.642, Florida Statutes,

change over time and effectuates the statement of legislative

intent in Section 320.605. If the 12 month exemption period

were to begin on the date the manufacturer cancelled the

franchise agreement, the manufacturer could effectively

circumvent the statutory right of dealers to protest an

additional dealership by artificially delaying the date of the

franchise cancellation until the manufacturer was ready to open

or reopen the same or successor dealer within 12 months of the

franchise cancellation. 13 Beginning the 12 month period of

exemption from the date of license revocation or surrender

eliminates the potential for abuse by manufacturers and permits

existing dealers to exercise their statutory right to protest an

additional dealership or replacement dealer as conditions change

over time.

31. Respondent's position recognizes the fact that the

agency charged with responsibility for administering Chapter

320, Florida Statutes, must have the means of assuring itself of

information sufficient to determine when the 12 month period of

exemption from protest begins and whether the opening or

reopening of the same or successor dealer is subject to protest.

If the 12 month period of exemption from protest were to begin

upon abandonment or execution of a buy-sell agreement, the

agency charged with responsibility for administering the protest

and exemption procedures in Section 320.642 may not be able to

assure its access to information required to determine when the

12 month period of exemption from protest began. Determining

the 12 month exemption period by reference to the revocation or

surrender of the dealer's license defines both the protest

period and exemption period by reference to the only event of

closing for which the agency charged with responsibility for

administering both periods maintains records.

32. The Department's interpretation of the time to begin

the 12 month period of exemption from protest in Section

320.642(5), Florida Statutes, effectuates a reasonable balance

of the separate elements of legislative intent in Section

320.605. Those elements include regulating the licensing of

motor vehicle dealers and manufacturers, maintaining

competition, and providing consumer protection and fair trade.

33. Final agency action may be based upon incipient policy

when the incipient policy is consistent with a rule published

prior to the formal hearing but not effective until after the

formal hearing. Baptist Hospital Inc. v. State, Department of

Health and Rehabilitative Services , 500 So. 2d 620, 625 (Fla.

1st DCA 1987). Proposed Rule 15C-7.004(4) (a) was published

prior to the formal hearing but will not become effective until

after the formal hearing. Respondent's determination that a

closing occurs upon the revocation or surrender of a dealer's

license is consistent with Proposed Rule 15C-7.004(4)(a). 14 The

purpose of a proceeding under Section 120.57(1), Florida

Statutes, is to formulate agency action, not to review action

taken earlier and preliminarily. Couch Construction Company,

Inc. v. Department of Transportation , 361 So. 2d 172, 176 (Fla.

1st DCA 1978); McDonald v. Department of Banking and Finance ,

346 So. 2d 569, 584 (Fla. 1st DCA 1977).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that a final order should be entered denying

Petitioner's request for an exemption from protest under Section

320.642(5), Florida Statues, for the proposed opening of a

successor dealership.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this

15th day of July, 1991.

___________________________________

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July, 1991.

ENDNOTES

1/ The Chevrolet dealers in the listed counties are those that

would be entitled to notice if the notice and protest provisions

in Sec. 320.642, Fla. Stat., were determined to apply.

2/ Petitioner gave Respondent written notice of Petitioner's

intent to apply for permission to open a successor dealer exempt

from protest pursuant to Sec. 320.642(5), Fla. Stat.

Respondent advised Petitioner that the 12 month period of

exemption in Sec. 320.642(5) had expired. Petitioner then

filed its application to open a successor dealer exempt from

protest. Respondent had referred the matter to the Division of

Administrative Hearings prior to the filing of Petitioner's

application.

3/ The final order entered by Respondent incorrectly recited

that Petitioner's application had been previously denied. The

recitation in the final order was in fact the first written

denial of Petitioner's application for permission to open a

successor dealer exempt from notice and protest.

4/ Sec. 320.642(5)(a)-(d), Fla. Stat., imposes certain

criteria that must be met for the exemption from protest to

apply. Those criteria, however, are not at issue in this

proceeding.

5/ The validity of Prop. Rule 15C-7.004(4) (a) was upheld in a

separate consolidated rule challenge proceeding conducted

pursuant to Secs. 120.54 and 120.56, Fla. Stat. See Division of

Administrative Hearings Case No. 91-2591R.

6/ Except for references to Sec. 320.27, Fla. Stat., all

chapter and statutory references are to Florida Statutes (1989)

unless otherwise stated. Sec. 320.27 was amended in 1990 by Ch.

90-163, Laws of Florida. The amendments are set forth in Sec.

320.27, Fla. Stat. (1990 Supp.).

7/ Sec. 320.642(5)(a)-(d), Fla. Stat., imposes certain criteria

that must be met for the exemption from protest to apply. Those

criteria, however, are not at issue in this proceeding.

8/ A dealership closes each day that it closes its doors. The

parties agreed, however, that the closing that is implicit in

Sec. 320.642(5), Fla. Stat., requires a substantial closing

similar to an abandonment described in Sec. 320.641(4).

Abandonment occurs under Sec. 320.641(4) whenever the dealer

fails to be engaged in business with the public for 10

consecutive business days excluding acts of God, work stoppages,

or delays caused by a strike, labor difficulties, freight

embargoes, or other causes over which the dealer has no control,

including a violation of Sections 320.60-320.70, Florida

Statutes.

9/ The validity of Prop. Rule 15C-7.004(4) (a) was upheld in a

separate consolidated rule challenge proceeding conducted

pursuant to Secs. 120.54 and 120.56, Fla. Stat. See Division of

Administrative Hearings Case No. 91-2591R. The parties in the

consolidated rule challenge proceeding included the parties in

this proceeding. A disposition on the merits of a factual issue

made in a prior administrative proceeding involving the same

parties is barred by the doctrine of res judicata from being

contested in a subsequent administrative proceeding involving

identical parties and issues. McGreqor v. Provident Trust Co.

of Philadelphia , 162 So 323, 327 (Fla. 1935); Hays v. State,

Department of Business Regulation. Division of Pari-Mutuel

Wagering , 418 So. 2d 331, 332 (Fla. 2d DCA 1982). The doctrine

of judicial estoppel precludes a party from asserting in one

proceeding a position that is inconsistent with that party's

position in a prior proceeding. McKee v. State , 450 So. 2d 563

(Fla. 3d DCA 1984).

10/ The Department would have information sufficient to

determine the date for beginning the 12 month period of

exemption from protest if the closing occurred upon the

cancellation of the franchise agreement. Section 320.641(1),

Fla. Stat., requires written notice to the Department of the

manufacturer's intent to cancel a franchise agreement. However,

the potential for frustrating legislative intent for Ch. 320 is

greater if the 12 month period of exemption from protest begins

when the franchise agreement is cancelled. See discussion at

Conclusions of Law, paras. 20-25, infra .

11/ Sec. 320.641(3), Fla. Stat., also provides that franchise

agreements and certificates of appointment shall continue in

effect until a final adjudication is entered in the franchise

cancellation proceeding.

12/ GM argues that the exemption period is restricted whenever

the license revocation or surrender precedes the final order in

the franchise cancellation proceeding by less than 12 months.

The exemption period would be eliminated whenever the license

revocation or surrender precedes the final order in the

franchise cancellation proceeding by more than 12 months.

13/ There are two conjunctive requirements that must be met in

order for a manufacturer to avail itself of the statutory

exemption in Sec. 320.642(5), Fla. Stat. The first

requirement is procedural in that it requires the opening or

reopening of the same or successor dealer within 12 months of an

unspecified event. The second requirement is substantive in

that it requires objective criteria prescribed in Sec.

320.642(5)(a)-(d) to be met in order for the exemption to apply.

14/ See also Turro v. Department of Health and Rehabilitative

Services , 458 So. 2d 345, 346 (Fla. 1st DCa 1984) (holding that

a procedural rule which takes effect after the commencement of a

formal hearing may be considered in recommending final agency

action). But see York v. State ex rel Schwaid , 10 So. 2d 813,

815 (Fla. 1943); City of Margate v. Amoco Oil Company , 546 So.

2d 1091, 1094 (Fla. 4th DCA 1989); Gulfstream Park Racing

Association, Inc. v. Department of Business Regulation , 407 So.

2d 263, 265 (Fla. 3d DCA 1981); Sexton Cove Estates Inc. v.

State Pollution Control Board , 325 So. 2d 468 (Fla. 1st DCA

1976).

APPENDIX

Petitioner submitted proposed findings of fact. It has been

noted below which proposed findings of fact have been generally

accepted and the paragraph number(s) in the Recommended order

where they have been accepted, if any. Those proposed findings

of fact which have been rejected and the reason for their

rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1-3 Accepted in Finding 1

4 Accepted in Finding 3

5 Accepted in part in 4

6 Accepted in Finding 5

7 Rejected as immaterial

8-10 Accepted in Finding 5

11 Accepted in Findings 2, 7

12-14 Accepted in Finding 7

15-18 Rejected as irrelevant

and immaterial

19-20 Accepted in Finding 8

21-25 Rejected as irrelevan t

and immaterial

26 Accepted in Finding 6

27 Accepted in Finding 8

28-29 Accepted in Finding 7

30 Rejected as irrelevant

and material but included

in preliminary statement

31 Accepted in Finding 9

32 Rejected as irrelevant

and immaterial

33 Accep ted in Finding 9

34-38 Omitted from copy of

proposed findings of fact

filed with the undersigned

39-41 Rejected as irrelevant and

immaterial

42-43 Rejected for the reasons

stated in Findings 10-11

44-50 Rejected as irrelevant and

immaterial

51 Accepted in Conclusions of

Law 8

52-53 Rejected as irrelevant and

immaterial

54-55 Rejected for the reasons

stated in Conclusions of Law 14-16

56 Rejected for the reasons

stated in Conclusions of Law 17-21

57-58 R ejected for the reasons

stated in Findings 10-11

59 Accepted in Finding7

60-64 Rejected as irrelevant and

immaterial

65 Accepted in Finding8

66 Rejected as irrelevant and

immaterial

Respondent submitted proposed findings of fact. It has

been noted below which proposed findings of fact have been

generally accepted and the paragraph number(s) in the

Recommended Order where they have been accepted, if any. Those

proposed findings of fact which have been rejected and the

reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1-3 Accepted in Finding 1

4 Accepted in Finding 5

5 Rejected as irrelevant and

immaterial

6-8 Accepted in Finding 5

9 Accepted in Findings 2, 7

10 Accepted in Finding 6

11-12 Accepted in Finding 7

13-17 See preliminary statement

18-25 Rejected as irrelevant and

immaterial

26 Accepted in Conclusions of

Law 17-20

27 Accepted in Finding 8

28 Accepted in Finding 3

29-30 Accepted in Finding 2

31 Accepted in Finding 4

32 Rejected as irrelevant and

immaterial

33-34 Accepted in Conclusions of

Law 8

35-37 Rejected as irrelevant and

immaterial

38 Accepted in Conclusions of

Law 16

39-41 Rejected as irrelevant and

immaterial

Intervenors submitted proposed findings of fact. It has

been noted below which proposed findings of fact have been

generally accepted and the paragraph number(s) in the

Recommended Order where they have been accepted, if any. Those

proposed findings of fact which have been rejected and the

reason for their rejection have also been noted.

The Intervenors' Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Reiection

1-3 Accepted in Finding 1

4 Accepted in Finding 3

5 Accepted in Finding 4

6 Accepted in Finding 5

7 Rejected as irrelevant and

immaterial

8-10 Accepted in Finding 5

11 Accepted in Findings 2, 7

12 Accepted in Finding 6

13 Accepted in Finding 7

14 Accepted in Finding 7

COPIES FURNISHED:

Charles J. Brantley, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

Room B439, Neil Kirkman Building

Tallahassee, Florida 32399-0500

Enoch Jon Whitney, Esquire

General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, FL 32399-0500

Dean Bunch, Esquire

Rumberger, Kirk, Caldwell,

Cabaniss, Burke Wecheler

106 East College Avenue

Suite 700

Tallahassee, Florida 32301

Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32301

James D. Adams, Esquire

7300 West Camino Real

Boca Raton, Florida 33433

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this

Recommended Order. All agencies allow each party at least 10

days in which to submit written exceptions. Some agencies allow

a larger period within which to submit written exceptions. You

should contact the agency that will issue the final order in

this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order . Any exceptions to this

Recommended Order should be filed with the agency that will

issue the final order in this case.