91-004315 Ed Morse Chevrolet Of Seminole, Inc. vs. Department Of Highway Safety And Motor Vehicles Status: Closed Recommended Order on Monday, January 13, 1992.

Summary: Dealer who failed to start approved dealership construction timely loses permit to do so later.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ED MORSE CHEVROLET OF SEMINOLE, )

INC., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF HIGHWAY SAFETY AND )

MOTOR VEHICLES, )

)

Respondent, ) CASE NO. 91-4315

)

and )

)

MAHER CHEVROLET, INC. and )

JIM QUINLAN CHEVROLET, INC., and )

CHEVROLET DIVISION, GENERAL MOTORS )

CORPORATION, )

)

Intervenors. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on October 28 and

29, 1991 before Arnold H. Pollock, a Hearing Officer with the Division of

Administrative Hearings.

APPEARANCES

For the Petitioner: Michael A. Fogarty, Esquire

P.O. Box 3333

Tampa, Florida 33601

For the Respondent: Michael J. Alderman, Esquire

DHSMV

A-324, Neil Kirkman Building

Tallahassee, Florida 32399-0500

For the Intervenors: Daniel E. Myers, Esquire

Maher and Walter E. Forehand, Esquire

Quinlan 402 North Office Plaza Drive

Suite B

Tallahassee, Florida 32301

For the Intervenor: Dean Bunch, Esquire

General Motors

851 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Petitioner, Ed Morse

Chevrolet of Seminole, Inc., should be granted a license as a franchised motor

vehicle dealer in Seminole, Pinellas County, Florida

PRELIMINARY MATTERS

By application dated May 31, 1991, Petitioner, Ed Morse Chevrolet of

Seminole, Inc., (Morse), applied to the Respondent, Department of Highway Safety

and Motor Vehicles, (Department), for a franchise motor vehicle dealer license

under the provisions of Section 320.27, Florida Statutes. Thereafter, on June

17, 1991, the Department, by letter of even date, notified Petitioner that it

was initially denying Petitioner's application for a franchised motor vehicle

dealer license because its application appeared to be a subterfuge for the

purpose of circumventing the requirements of the statute. By Petition for

formal administrative hearing dated June 24, 1991, Petitioner requested a formal

hearing on the Department's intended denial and by letter dated July 9, 1991,

the Department forwarded the file to the Division of Administrative Hearings for

the appointment of a Hearing Officer to conduct a hearing under the provisions

of Section 120.57(1), Florida Statutes.

Thereafter, on July 12, 1991, Intervenor Maher Chevrolet, Inc., (Maher),

and Jim Quinlan Chevrolet, Inc., ( Quinlan), both filed a Petition for leave to

intervene herein in opposition to the award of the license to the Petitioner.

Shortly thereafter, the Department filed a Motion to Amend its denial letter.

By Order dated October 21, 1991, the undersigned granted the Petition to

Intervene and the Motion to Amend and expedited discovery in that the hearing

was scheduled to commence shortly thereafter. The undersigned had, on July 26,

1991, by Notice of Hearing, set the case for hearing in Tallahassee on October

28 - 30, 1991 and consistent therewith, the hearing was held as scheduled.

At the hearing, Petitioner presented the testimony of Donald A. MacInnes,

Vice President and Chief Financial Officer of Morse Operations, Inc., the parent

holding company of Petitioner; Henry C. Noxtine, the retired chief of the

Department's Dealer Certification Division; John Sanford Pettit, owner of

Autobuilders of South Florida, Inc., a construction company; John Stephen

Kettell, a principal in Seminole Engineering; and Edward J. Morse, Jr.,

President of Ed Morse Chevrolet Lauderhill and President, Dealer/Operator of Ed

Morse Chevrolet of Seminole, Inc. Petitioner also introduced Petitioner's

Exhibits 1 - 15, 17 - 21, 23 - 29, 29, 31 - 43, 45 - 55, and 56 - 59.

Petitioner's Exhibits 56 - 58 are the depositions of Charles F. Duggar,

administrator of the Department's dealer license section; Charles Brantlry,

Director of the Division of Motor Vehicles; and Neil Vhamelin, operations and

management consultant manager with the Department, respectively.

Intervenors, Maher and Quinlan, presented the deposition testimony of Ed

Morse, Senior, and the live testimony of Gerard R. Quinlan, Vice President of

Jim Quinlan Chevrolet, Inc., and introduced Intervenor's Exhibits 1 - 11 and 13

and 14. Exhibit 12 for Identification was not offered.

The Department presented no evidence and General Motors Corporation adopted

Petitioner's case.

Petitioner, Respondent, and Intervenor's Maher and Quinlan submitted

Proposed Findings of Fact which have been ruled upon in the appendix to this

Recommended Order. Intervenor, General Motors Corporation did not submit any

post-hearing matters.

At the hearing, the undersigned withheld ruling on the issue of the

admissibility of Petitioner's Exhibit 59, a Consent Order pertaining to prior

agency action in another case involving J. O. Stone Buick. Upon due

consideration of the matters presented, the objection to that evidence is

overruled, and the documentation regarding the prior agency action in that case

is admitted.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department was the

state agency in Florida charged with the licensing of automobile dealerships in

this state.

2. In December, 1987, Petitioner, Morse, applied to the Intervenor,

General Motors Corporation, Chevrolet Division, (Division), for an automobile

dealership franchise to be constructed in Seminole, Pinellas County, Florida.

Thereafter, the Division issued a letter of intent to the Petitioner indicating

its intent to authorize a dealership by Petitioner, with a potential volume of

1,360 new Chevrolet cars and trucks per year. The letter of intent also

outlined the number of display spaces and service stalls necessary to adequately

conduct the sales, service, warranty and pre-delivery work, and for a dealership

with the projected volume involved here, a facility consisting of 213,825 square

feet of land would be required.

3. Subsequent to the issuance of that letter of intent, Quinlan filed a

protest with the Department requesting a determination of the need existing at

that time for a new dealership in Seminole, Florida, and a hearing on this

protest was held before the Division of Administrative Hearings on May 1 - 4,

1989. The Hearing Officer concluded that need did exist and thereafter the

Department adopted the Recommendation of the Hearing Officer, indicating that a

license would be issued when Morse had complied with all applicable provision of

the pertinent statute. The Order granting the license was appealed to the

District Court of Appeals which affirmed the agency action and entered its

mandate to that effect on June 18, 1990. As of that date, Petitioner was aware

that it was lawfully entitled to proceed with the construction of its facility

without further regard for the protest, and, being a dealership run by

experienced auto dealers, it must have understood that under the terms of the

pertinent statute and rule, it had one year in which to construct its permanent

facility. At that time, the Division urged Petitioner to begin construction

immediately after the favorable resolution of the protest.

4. Consistent with that position, on July 30, 1990, the Division issued a

new letter of intent to Petitioner which, based on Quinlan's apparent

improvement of its position in the area, reduced the scope of the dealership it

still agreed to approve in volume from 1,360 new cars and trucks to 1,175

vehicles, and reduced the total size of the facility to 141,000 square feet.

These changes were initiated by Chevrolet Division.

5. It is recognized that the process of design and construction of a

dealership cannot be started until the facility size has been decided upon.

This also impacts on the procurement of local construction permits and zoning

permits, and consistent with this reduction in size, Petitioner's ownership met

with its builder in June, 1990, after the appellate court's favorable ruling, to

discuss the size of the dealership. Even before the Court's action, however,

and thereafter, continuing through 1990, Petitioner was in a process of

continuing negotiation with the Division regarding various types of financial

assistance it was seeking from the Division. These negotiations were unresolved

until just shortly before the hearing.

6. If Petitioner had filed a site plan with Pinellas County for

construction of its permanent facility at the time of the appellate court

action, or, for that matter, any time prior to March 1991, it would not have

faced the "concurrency" problems it subsequently encountered in seeking

permission from the county to construct its facility at the intended site.

Nonetheless, Petitioner did not begin construction at the site during 1990 nor

did it file any site plan with the county until much later. Instead, it chose

to continue to seek to obtain a better financial arrangement with the Division

for itself. When the site plan was finally filed with the County, concurrency

problems were encountered.

7. Regarding the negotiations between Petitioner and the Division, both

prior and subsequent to the appellate court's decision, Petitioner has incurred

in excess of $1 million in additional carrying costs for the real estate on

which the facility was to be located. This includes the time of the original

protest hearing and appeal therefrom. After the size of the operation was

reduced by the Division, Petitioner continued to seek financial assistance from

the Division. Part of this related to a potential sale of the property to the

Division, and in addition, Morse sought further reductions in facilities

commitments for the dealership. Whereas Petitioner wanted the Division to buy

the property outright, the Division offered only to buy the property and hold it

only until construction of the facility at which time it would be sold back to

Petitioner at even cost. Nonetheless, these negotiations were nonproductive,

and on or about January 17, 1991, Petitioner and the Division reached an impasse

point at which Morse committed to proceed without further concessions from

Chevrolet. It is Morse's position that because site planning must await final

determination of dealership size and facility requirements, it could not

reasonably begin site plan work until its negotiations with Chevrolet had been

concluded in January, 1991.

8. When the negotiations between Morse and the Division finally concluded

in January, 1991, Morse, which contends it fully intended to proceed with the

establishment of a dealership all along, with only the size in issue, contacted

the Department's representative, Mr. Noxtine, on January 25, 1991 and requested

that the Department extend the time for issuance of the Morse license to

December, 1991. In his letter to Mr. Noxtine, Mr. MacInnes pointed out it was

the continuing intention of the Petitioner to start construction of the

dealership immediately and to complete it by December, 1991, assuming no

additional unforseen delays were encountered.

9. When Mr. Noxtine received this request, he contacted the Department's

General Counsel and was advised that the Department should and could treat

Petitioner the same way it had treated the Chevrolet World application, a

somewhat analogous situation, previously. Thereafter, Mr. Noxtine contacted Mr.

MacInnes and advised him that the Department would issue a license to the

Petitioner if the Petitioner constructed a temporary facility on the property

consisting of display space and a mobile office facility.

10. Apparently nothing was said in these conversations regarding the

Department not issuing a license unless permanent dealership facilities were

substantially complete, or unless a "good faith" effort toward completion was

underway by June 17, 1991.

11. Thereafter, Morse had site plans prepared and permitted, and

constructed and completed a facility on the site which, it contends, satisfies

the conditions and facilities which Mr. Noxtine represented would result in the

Department's issuing the license on a temporary basis. This temporary facility

cost approximately $185,000.00.

12. In March, 1991, however, Morse learned that concurrence issues

affected the zoning of its property as a result of the induction of Park

Boulevard into transportation deferral status. At that time, Morse petitioned

Pinellas County for vested rights to construct the dealership, waived all its

vested rights to develop the property for any other commercial use, and, over

the opposition of Intervenor, Quinlan, obtained a final order vesting Morse's

rights to construct its dealership on the site, and eliminating any other vested

rights to construct anything other than an automobile dealership there. That

being achieved, Morse began planning, permitting of its permanent facility.

Morse claims now that had it been advised that the Department's Director would

require a showing of "good faith" effort to construct permanent facilities, it

could have accelerated its work on the permanent facility and completed

sufficient planning, permitting, and construction to satisfy the Director's

position, all before June 17, 1991. The fact is, however, that no such action

was taken.

13. With regard to the temporary facility, Pinellas County notified the

public by public advertisements, prior to March 1, 1991, that effective that

date, the County's concurrency statement would be amended to reflect deferral

status on that portion of Park Boulevard adjacent to the parcel of land owned by

Morse for its dealership. The advertisements were published in January and

February of 1991. When these advertisements were published, Autobuilders of

South Florida, Inc., a construction firm which had been hired by Morse to serve

as project manager and general contractor for the construction of its facility,

advised Morse that the concurrency problem existed and that because of it, the

permanent dealership construction should be begun as soon as possible. Though a

site plan had been previously approved by the County for the facility, sometime

prior to March, 1991, this site plan expired because Morse had taken no action

to begin construction or to acquire permits, and because of the expiration of

that prior issued site plan and the new concurrency problems which arose in

March, 1991, Morse could not submit a new site plan for approval and, therefore,

could not go forward with construction.

14. Autobuilders retained Anclote Engineering to draw the site plan for

the temporary facility based around a mobile home, and to work with the County

on the concurrency problems which were preventing the construction of the

permanent dealership on Park Boulevard. A decision was made to place the

temporary facility in the northwest corner of the site, a location which would

not be used for the permanent construction later to come. The site for the

temporary facility was a portion of the site adjacent to the proposed permanent

facility. The temporary site was an out parcel. If construction were started

on a permanent facility, the traffic and congestion caused by that construction

would not interfere with the conduct of business at the temporary site.

15. Nonetheless, Anclote informed Mr. Morse that construction on the

permanent facility could not begin until the concurrency problem was resolved.

Morse did not notify the Department that the problem existed and that it could

not go forward with the construction of the permanent facility even though

discussion with Mr. Noxtine clearly indicated that a permanent facility within a

12 month period was a sine qua non, to the issuance of the permit based on the

temporary facility.

16. After substantial negotiation, Mr. Vernon, Anclote's representative,

in March, 1991, met with Pinellas County zoning personnel and a site plan for

the temporary facility on the out parcel was filed on April 16, 1991. This site

plan was approved. Mr. Vernon represented to the County at that time that Morse

was prepared to submit an overall site plan, including the permanent facility,

as soon as the Planning Board determined that Morse had vested rights under

concurrency and could develop the property as a dealership. This was not

received until later, however.

17. The temporary facility site plan calls for a 200 by 200 square foot

parcel at the northwest corner of the overall site. A mobile home was to be

placed on the site for an office use, and vehicles were to be displayed on the

property surrounding it.

18. Subsequent to the approval of the out parcel site plan, Mr. Les

Stracher wrote to the Department on behalf of the Petitioner seeking a

clarification or extension of time for Morse to obtain its license. In his

letter, Mr. Stracher asserted that Morse had been "working diligently and in

good faith" to construct a dealership, and that the site became subject to the

concurrency ordinance before Morse could submit its site plan for the permanent

dealership. He noted that Morse was seeking relief from the concurrency problem

and that unless such relief was granted, Morse might be required to revise

entirely its plan for the site because of those problems.

19. Even before this, however, Mr. MacInnes had notified the Department in

his January 25, 1991 letter that delay in the approval process had caused

problems in the start-up of the construction of the dealership with a portion of

the delay related to the ongoing negotiations between Morse and the Division.

However, even Mr. MacInnes indicated at the hearing that the only delay which

prevented Morse from beginning construction back in June, 1990, when the

appellate court decision came down supporting its license, was the continuing

negotiations between Morse and the Division wherein Morse was seeking a more

advantageous financial position.

20. In May, 1991, the Division approved a temporary facility for Morse on

this site, conditioned upon the submittal to it of a plan for a final, permanent

facility, and its subsequent approval by the Division. There was no doubt

remaining that at that time the Division envisioned that site preparation and

ground breaking for the permanent facility would take place with due dispatch.

21. Nonetheless, no permanent facility plan was submitted to the Division

until October 1, 1991, and as of the date of the hearing, neither site

preparation, ground breaking, nor any other incident of construction of the

permanent facility has taken place at the site.

22. Documentation relative to the agreement between the Division and

Petitioner, dated May, 31, 1991, recognizes that the Department's failure to

issue the license to Petitioner, for whatever reason, would be a material breach

of the dealer sales and service agreement and would constitute cause for

termination thereof under Florida law. In that same addendum, Petitioner agreed

to voluntarily terminate the agreement if the Department were to fail to issue,

or to revoke or suspend, its license to conduct operations at that site.

23. In addition to the erection of the trailer on the out parcel, Morse

has entered into a lease agreement with another dealership in the area, by

agreement dated June 17, 1991, which provides it with two service stalls and

vehicle lifts. The initial period of the lease is for 90 days, with provision

for continuation on a month to month basis. These stalls would be used for pre-

delivery inspection and service and warranty service on new and used vehicles

sold by Petitioner at its out parcel temporary facility. The terms of this

agreement provide it will not become effective until Morse has obtained all its

approvals and has satisfied all requirements to operate a Chevrolet new car

franchise at its Seminole location.

24. There is no question that the temporary facility located on the out

parcel, and the satellite service facility if implemented, falls below the

requirements of the Division for a dealership. However, the evidence is equally

clear that under some pressure, the Division has reluctantly agreed to allow

Petitioner to operate a temporary dealership under the circumstances as appear

to be provided for here, on a temporary basis.

25. The Pinellas County Administrator entered a final order in July, 1991,

which conditionally approved Morse's vested rights to develop the property,

providing a site plan was filed within 6 months and providing construction of a

permanent facility had begun at that time. The order also states that the

temporary facility will be removed once the permanent facility is open for

business. Morse has reviewed these conditions and represents they are

acceptable. Thereafter, in September, 1991, Morse filed site plans for the

permanent facility with the County, but as of the date of the hearing, these

plans had not been approved. As of October, 1991, no construction had begun on

a permanent facility.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding. Section 120.57(1), Florida

Statutes.

27. By its denial letter dated June 17, 1991, the Department had indicated

its intent to deny issuance of a dealership franchise license to Petitioner on

the basis that the letter of intent issued by the Division on May 31, 1991, to

allow Petitioner to operate a dealership out of a temporary facility so long as

good faith effort is made toward the construction and establishment of a

permanent facility, is a subterfuge designed to circumvent the requirements of

Section 320.642, Florida Statutes. The Department claims that the Division was

without authority to issue such a franchise agreement because the Petitioner

does not have, and is not likely to have, the service facilities necessary for

the conduct of proper service to vehicles as required, and was, therefore, in

violation of section 320.64(10), Florida Statutes.

28. The Department also bases its denial on the basis that Petitioner

cannot establish when adequate permanent facilities will be constructed or if

the construction, when realized, will be at the location approved in the

preliminary filing, and, therefore, the Department cannot determine that the

proposed location is a "suitable" location where the applicant can, in good

faith, carry on the business of an automobile dealership as is required by

Section 320.27(3), Florida Statutes.

29. As applicant for a license here, Petitioner has the burden to

establish by a preponderance of the evidence that it is a proper applicant and

that it meets all relevant statutory and rule requirements for the granting of

such a license.

30. The evidence of record establishes that approval of the Petitioner's

original application for this dealership was granted by the Department in 1987

but that, due to protests by at least one of the Intervenors herein, the final

approval of that grant was delayed until the mandate of the Court of Appeals, in

June, 1990, sustaining it. As of that time, Petitioner had approval to begin,

and could have begun, construction of its dealership at the site already owned

by it, which is the site in issue here.

31. At that time, there were no problems with the zoning requirements of

Pinellas County and there is no evidence that any obstacles existed legally to

Petitioner's commencement of construction of its facility.

32. The evidence also indicates, however, that at that time, Petitioner

was engaged in negotiations with Chevrolet Division for possibly more

advantageous financial terms for its construction program. The evidence shows

that Petitioner proposed that the Division purchase the property from it, and

taken together, the evidence indicates that at that time, Petitioner did not

demonstrate a firm resolve to proceed with actual construction of its facility,

the license for which had been previously approved.

33. Under the provisions of Rule 15C-1.008, F.A.C., an applicant is

obliged to begin construction within 12 months from the date of final approval

of his application, (the determination of the Department that Petitioner

satisfied the Section 320.642 requirements was effective "for a period of 12

months from the date of the Director's Order, or date of judicial determination

in the event of an appeal, unless for good cause a different period is set by

the Director in his order of determination.")

34. Petitioner did not initiate any efforts toward beginning construction

of its permanent facility during that time. It delayed for one reason or

another, primarily because of its continuing financial negotiations with the

Division, until such time as the zoning status of the property had changed and

Petitioner found it could no longer rely on the availability of that property

for the construction of its facility.

35. Petitioner was able to secure approval for the construction of a

temporary facility on an out parcel at the property after it had negotiated with

the Department for approval to procure its license beyond the one year period on

the basis of a temporary facility. The Department ultimately granted authority

to Petitioner to construct a temporary facility, and this was the genesis,

supposedly, for ultimate construction of a permanent facility.

36. Petitioner claims that because the Department indicated its tentative

approval of a temporary facility, the Department is now estopped from denying

that a license for a temporary facility envisioning the construction of a

permanent facility on site further down the line should now be granted.

37. Approval of Petitioner's temporary license would extend the provisions

of Rule 15C-1.008, F.A.C.. The Department has taken the position here, by

virtue of its most recent denial, that the Rule's 12 month provision is

jurisdictional and that the Department's director has no authority to issue a

license at any point after 12 months from the date of the regulatory

qualification determination.

38. The evidence indicates, however, that the Department has done just

that on at least two occasions, but in both cases, the fact situation was

remarkably different from the instant case, and notwithstanding Petitioner's

claim that the Director's determination that it should be treated as other

exceptions were treated now prevents the Department from denying it a license,

this is just not so. Parenthetically, it would appear the Department has

amended the provisions of Rule 15C-1.008, F.A.C. to allow an applicant a total

of 24 months from the date of final determination to construct its permanent

facility but this 24 month period is not pertinent here.

39. The instances of application of the doctrine of equitable estoppel

against the state are rare and the doctrine is invoked against such an entity

only under very exceptional circumstances. North American Company v. Green, 120

So2d 603 (Fla. 1960); Bryant v. Peppe, 238 So2d. 836 (Fla. 1970). Here, the

Petitioner has not shown any exceptional circumstances to justify the

application of equitable estoppel against the Department.

40. Even if Mr. Noxtine had had authority to commit the Department, of

which evidence is certainly not clear, the remedy of equitable estoppel may not

be claimed by one who does not seek it with clean hands. From the very

beginning, the evidence shows, Morse delayed construction of its facility even

when it could have done so in 1990 without any impediment. Thereafter, even

when negotiating with the State and with the Division for additional time and

for the franchise and licensing on the basis of a temporary facility, Morse was

still deliberating and negotiating with the Division for the resolution of other

financial considerations which impacted on its clear intention to establish the

dealership. In short, it appears that Morse apparently wanted to have the best

of all possible worlds: to preserve its potential for developing a dealership if

and when it chose to do so under economic terms most favorable to it. Morse

referred to "no more unforseen delays", but the evidence clearly tends to

indicate that the majority of the delay encountered by Morse here was occasioned

by its actions and could have been both forseen and avoided. Consequently, the

doctrine of equitable estoppel is not applicable here.

41. There is some question as to whether the Department's action here is

governed by the circumstances which existed at the time of the proposed

decision or at the time of the hearing. Recognizing that the hearing before the

Division of Administrative Hearings is a de novo proceeding and not merely a

vehicle to review actions taken earlier, ( Mcdonald v. Department of Banking and

Finance, 346 Sod 569, 584 (Fla. Da 1977); Beverly Enterprises v. Department of

Health and Rehabilitative Services, 573 So2d 19, 23 (Fla. 1DCA 1990)); and

realizing that consistent with the decision in Mcdonald, supra, the Hearing

Officer may properly permit evidence relating to changes in circumstances

between the initial agency action and the hearing, nothing in the evidence

presented at this hearing is sufficient to override the conclusions drawn by the

Department that Petitioner's failure to initiate the construction of, and show

good progress toward the completion of, its permanent structure within the 12

month period after final approval defeats its eligibility for licensure.

42. In the instant case, the Department has based its action on a

limitation on the period for which a license proposed under Section 320.642,

Florida Statutes, as delineated in Rule 15C- 1.008, F.A.C.. From the time that

Morse could freely proceed with the construction of its permanent facility,

June, 1990 when the appellate court's favorable decision was entered, the

operative period in issue was one year. Taken together, the evidence of

Petitioner's failure to proceed for its own purposes which led to the additional

delay caused by the concurrency problem, which can be laid directly at

Petitioner's feet, indicates the delay is directly attributable to it's failure

to act in a timely manner when it could and, therefore, it must bear the

consequences of that failure to act. It made certain informed choices and must

now live with the consequences of those choices.

43. Even more, the temporary facility envisioned by Petitioner is not yet

in operation. Even overlooking the potential that because of the concurrency

problem Petitioner cannot guarantee that the facility will be built at the

location proposed, there are other problems regarding this facility.

44. Section 320.64(10), Florida Statutes, requires the dealer to have

"proper facilities to provide services to his purchasers of new motor vehicles."

Under the present situation, assuming Petitioner initiates sales activity at his

temporary location, the two bays leased for service on a 90 day plus extension

basis might well not be sufficient to meet the requirements of that statute. The

Department has determined it is not and Petitioner has presented no substantial

evidence to contradict that determination.

45. Respondent, Department, claims that the location of the temporary

facility has not shown to be the same as the location of the future permanent

facility. This is clearly not true. To claim otherwise is to unreasonable

speculate that county approval will not be forthcoming. Clearly the evidence

shows that if a permanent structure is to be constructed, it will be constructed

on land contiguous to the current out parcel on which the temporary facility is

located. The only portion of Respondent's argument which may bear weight there

is that the site and construction plans have not yet been approved by the County

and there is no assurance yet that they will be. Taken together, however, it

appears clear that Petitioner's application is not appropriate for approval at

this point.

46. In summary, the provisions of Section 320.27(3), Florida Statutes,

providing that an applicant must be able to certify that the business location

is a suitable place where the applicant can in good faith carry on such

business, may likely be satisfied. However, the service facilities arrangement

is clearly inadequate and, more important, the provisions of Rule 15C-1.008,

F.A.C., and the statute upon which it is based, calling for construction of the

permanent facility within 12 months, has clearly not been met.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

therefore:

RECOMMENDED that a Final Order be issued denying the application of Ed

Morse Chevrolet of Seminole, Inc., for a license as a franchised Chevrolet motor

vehicle dealer in Seminole, Pinellas County, Florida.

RECOMMENDED in Tallahassee, Florida this __13th__ day of January, 1992.

______________________________

ARNOLD H. POLLOCK

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 __13th__ day of January, 1992.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of fact submitted

by the parties to this case.

FOR THE PETITIONER:

1. - 7. Accepted and incorporated herein.

8. & 9. Accepted.

10. Accepted and incorporated herein.

11. Accepted.

12. - 13. Accepted and incorporated herein.

14. Accepted.

15. 1st and 2nd sentence accepted. 3rd sentence rejected.

16. & 17. Accepted and incorporated herein.

18. Accepted and incorporated herein except that Mr. Alderman is Assistant

General Counsel.

19. Accepted.

20 (a) & (b). Accepted and incorporated herein.

20(c). 1st sentence accepted and incorporated herein. 2nd sentence

rejected as speculation.

21. Rejected. Morse's lengthy negotiations with Chevrolet were initiated

by it and the later delays were occasioned by its failure to start construction

when the appellate court's decision was handed down.

22. Accepted as to the fact that Petitioner has ultimately progressed

with plans to construct its dealership. Next to last and last sentences

rejected as speculation.

23. Accepted as position taken, not as lawful position.

24. & 25. Accepted.

26. - 28. Accepted.

29. & 30. Not a Finding of Fact but a comment on the evidence.

31. - 33. Accepted, but considered comments on the evidence, not Findings

of Fact.

34. & 35. Accepted.

36. & 37. Accepted.

38. Accepted and incorporated herein.

39. Argument, not a Finding of Fact.

40. 1st sentence rejected as a conclusions and comment on the evidence.

Balance accepted but considered more a restatement of position rather than a

Finding of Fact.

41. Rejected.

42. Accepted.

43. & 44. Rejected.

45. Accepted.

46. Not a Finding of Fact but a restatement of evidence.

47. Rejected.

48. Accepted and incorporated herein.

49. & 50. Accepted.

51. & 52. Accepted.

53 (a). 1st sentence accepted. 2nd sentence argument. Balance accepted.

53 (b). Accepted.

54. Rejected.

55. - 58. Accepted.

59. Rejected.

60. Rejected.

61. Accepted.

FOR THE RESPONDENT:

1. & 2. Accepted and inorporated herein.

3. - 6. Accepted.

7. - 10. Accepted and incorporated herein.

11. - 13. Accepted and incorporated herein.

14. & 15. Accepted.

16. - 18. Accepted.

19. - 21. Accepted and incorporated herein.

22. & 23. Accepted.

24. Accepted and incorporated herein.

25. - 27. Accepted.

28. Accepted.

29. - 35. Accepted and incorporated herein.

36. Accepted.

37. Accepted.

38. & 39. Accepted and incorporated herein.

40. Accepted.

41. - 43. Accepted and incorporated herein.

44. Accepted.

45. Accepted and incorporated herein.

46. Accepted and incorporated herein.

47. - 50. Accepted and incorporated herein.

51. & 52. Speculation, not Finding of Fact. Rejected.

53. Accepted.

54. Speculation, not Finding of Fact. Rejected.

55. Accepted and incorporated herein.

56. Accepted and incorporated herein.

57. - 63. Accepted and incorporated herein.

64. - 66. Accepted.

67. Accepted.

68. - 71. Accepted and incorporated herein.

72. & 73. Accepted.

74. Accepted and incorporated herein.

75. Accepted.

76. - 78. Restatements of evidence, not Findings of Fact.

79. Accepted.

80. Accepted and incorporated herein.

81. Accepted and incorporated herein.

82. Accepted.

83. & 84. Accepted and incorporated herein.

85. - 88. Accepted but not probative of any material fact.

89. Accepted.

90. Accepted.

91. & 92. Accepted.

93. - 96. Accepted and incorporated herein.

97. & 98. Accepted and incorporated herein.

99. & 100. Accepted and incorporated herein.

101. & 102. Accepted and incorporated herein.

103. & 104. Accepted.

105. - 108. Accepted and incorporated herein.

109. - 111. Accepted.

112. Accepted and incorporated herein.

113. - 115. Accepted.

116. Accepted.

117. Accepted.

118. Accepted and incorporated herein.

119. & 120. Accepted.

121. - 123. Accepted.

124. - 127. Accepted.

128. & 129. Accepted and incorporated herein.

130. - 132. Accepted.

133. & 134. Accepted.

135. Accepted.

136. & 137. Accepted.

FOR THE INTERVENORS:

1. - 4. Accepted and incorporated herein.

5. Accepted and incorporated herein.

6. Accepted.

7. & 8. Accepted and incorporated herein.

9. & 10. Accepted.

11. - 15. Accepted and incorporated herein.

16. Accepted.

17. & 18. Accepted and incorporated herein.

19. & 20. Accepted and incorporated herein.

21. Accepted.

22. & 23. Accepted.

24. & 25. Accepted.

26. - 28. Accepted.

29. Accepted.

30. Accepted.

31. - 33. Accepted.

34. Accepted and incorporated herein.

35. - 38. Accepted and incorporated herein.

39. - 41. Accepted and incorporated herein.

42. - 45. Accepted and incorporated herein.

46. Accepted.

47. & 48. Accepted in substance and incorporated herein.

49. - 51. Accepted and incorporated herein.

52. - 54. Accepted.

55. & 56. Accepted.

57. & 58. Accepted and incorporated herein.

59. Accepted.

60. & 61. Accepted.

62. - 64. Accepted and incorporated herein.

65. Accepted.

66. Accepted.

67. Accepted.

68. & 69. Accepted.

70. & 71. Accepted.

72. & 73. Accepted.

74. & 75. Accepted and incorporated herein.

76. & 77. Accepted.

78. - 80. Accepted and incorporated herein.

81. - 83. Accepted.

COPIES FURNISHED:

Michael A. Fogarty, Esquire

Post Office Box 3333

Tampa, Florida 33601

Dean Bunch, Esquire

851 East Park Avenue

Tallahassee, Florida 32301

Daniel E. Myers, Esquire

Walter E. Forehand, Esquire

402 North Office Plaza Drive

Suite B

Tallahassee, Florida 32301

Michael J. Alderman, Esquire

Assistant General Counsel

DHSMV

Room A-423

Neil Kirkman Building

Tallahassee, Florida 32399-0504

Charles J. Brantley, Director

Division of Motor Vehicles

Room B-439

Neil Kirkman Building

Tallahassee, Florida 32399-0500

Enoch Jon Ehitney

General Counsel

DHSMV

Neil Kirkman Building

Tallahassee, Florida 32399-0500

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 consult with the agency which will issue the

Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should b e filed with the agency which will issue the Final Order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY AND SAFETY MOTOR VEHICLES

ED MORSE CHEVROLET OF

SEMINOLE, INC.,

Petitioner,

DEPARTMENT OF HIGHWAY SAFETY CASE NO.: 91-4315

AND MOTOR VEHICLES,

Respondent,

MAHER CHEVROLET, INC., and

JIM QUINLAN CHEVROLET, INC.,

Intervenors.

__________________________/

FINAL ORDER

This matter is before the Department pursuant to ss. l20.57(l)(b) 10,

120.59 and 320.642, Fla. Stat., for the purpose of considering the Hearing

Officer's Recommended Order ( HORO) and Petitioner's Exceptions To Recommended

Order. Authority to enter this Final Order is pursuant to the delegation to the

Executive Director, Rule 15-1.012, F.A.C., and his designation of the

undersigned.

Upon review of the Recommended Order, Petitioner's Exceptions, and

after a review of the complete record in this case, the Department makes the

following findings and conclusions:

RULINGS ON EXCEPTIONS

1. Petitioner has filed numerous exceptions regarding the rejection of

proposed findings of fact in the HORO (pages 1-9 of Exceptions). The

Department has compared each of these exceptions with the rulings on

proposed findings contained in the HORO. The Department accepts the Hearing

Officer's ruling on the Petitioner's proposed findings and, therefore, rejects

the exceptions related to the non-acceptance of Petitioner's proposed findings.

2. Petitioner next takes exception to various of the findings contained

in the HORO. The Department finds that these challenged findings are based on

competent substantial evidence and therefore, rejects these exceptions.

3. Petitioner also takes exception to the conclusions of law in the HORO,

which are dealt and with as follows:

A. Morse could not have began construction of its dealership in June,

1990 -- rejected. Construction could have commenced at that date. The fact

that the Chevrolet Division subsequently reduced the sales volume and facility

size for Petitioner on July 30, 1990, is irrelevant where Petitioner failed to

meet the construction requirements within the one year period.

B. Morse was not obliged to begin construction within 12 months --

rejected. This argument is inconsistent with Rule l5C-l.008, F.A.C., then in

effect, and the communications from the Department. (See paragraph 15 of HORO).

C. Morse's situation is similar to the Chevrolet World and Stone Buick

applications -- rejected. Those applications are distinguishable on their

different facts.

D. DHSMV is equitably estopped from denying Morse's license --

rejected. The Department finds the doctrine of equitable estoppel inapplicable

under the facts of this case.

E. DHSMV was obligated to treat Morse as it treated Chevrolet World --

rejected. Chevrolet World was not similarly situated to Petitioner.

F. DHSMV cannot deny Morse's license based on Morse's service

facilities - rejected. Adequate service facilities are required by s.

320.64(10), Fla. Stat., and the Department's concerns over their insufficiency

in connection with the temporary facility was justified.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order of January 13,

1992, are approved and adopted and incorporated herein.

2. There is competent substantial evidence to support the Findings of Fact

of the Department.

CONCLUSIONS OF LAW

1. The Department has jurisdiction of this matter pursuant to 55. 12p.57(1)

and 320.642, Fla. Stat.

2. The Conclusions of Law set forth in the Recommended Order of January 13,

1992, are approved, adopted and incorporated herein.

DETERMINATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is

hereby ORDERED AND ADJUDGED that: The application of Ed Morse Chevrolet,

of Seminole, Inc., for a license as a franchised Chevrolet motor

vehicle dealer in Seminole, Pinellas County, Florida is denied.

DONE AND ORDERED this __31st__ day of __ March__, 1992, in Tallahassee,

Leon County, Florida.

____________________

CHARLES A. BRANTLEY, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399-0504

Filed with the Clerk of the

Division of Motor Vehicles

this __31__ day of __March__

1992.

NOTICE OF APPEAL RIGHTS

Judicial review of this order may be had pursuant to section 120.68, Florida

Statute, in the District Court of Appeal for the First District, State of

Florida, or in any other District Court of Appeal of this state in an appellate

district where a party resides. In order to initiate such review, one copy of

the of the Notice of Appeal must be filed with Department and the other copy of

the Notice of Appeal, together with the filing fee, must be filed with the court

within thirty days of the filing date of this order as set out above, pursuant

to Rule 9.110, Rules of Appellate Procedure.

Copies furnished to:

Michael A. Fogarty, Esquire

Post Office Box 3333

Tampa, Florida 33601

Dean Bunch, Esquire

851 East Park Avenue

Tallahassee, Florida 32301

Daniel E. Myers, Esquire

402-B North Office Plaza Drive

Tallahassee, Florida 32301

Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

Arnold H. Pollock

Hearing Officer

Division of Administrative Hearings

Desoto Building, 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

=================================================================

AGENCY ACTION

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY AND SAFETY MOTOR VEHICLES

ED MORSE CHEVROLET OF

SEMINOLE, INC.,

Petitioner,

DEPARTMENT OF HIGHWAY SAFETY CASE NO 91-4315

AND MOTOR VEHICLES,

Respondent,

MAHER CHEVROLET, INC., and

JIM QUINLAN CHEVROLET, INC.,

Intervenors.

__________________________/

ORDER DENYING REMAND

This matter is before the Department on Petitioner's Motion To Remand Cause

To Department of Administrative Hearings For Consideration of New Evidence dated

February 4, 1992, and Intervenor's Response. Both items have been fully

considered within the context of a completed evidentiary hearing and Recommended

Order dated January 13, 1992. Accordingly it is hereby,

ORDERED, that Petitioner's Motion For Remand is denied. DONE AND ORDERED

this __31__ day of __March__ 1992, in Tallahassee, Leon County, Florida.

_____________________

CHARLES J. BRANTLEY, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

Tallahassee, Florida 32399

Filed with the Clerk of the

Division of Motor Vehicles

this __31__ day of __March__

1992.

Copies furnished to:

Michael A. Fogarty, Esquire

Post Office Box 3333

Tampa, Florida 33601

Dean Bunch, Esquire

851 East Park Avenue

Tallahassee, Florida 32301

Daniel E. Myers, Esquire

402-B North Office Plaza Drive

Tallahassee, Florida 32301

Michael J. Alderman, Esquire

Assistant General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, A-432

Tallahassee, Florida 32399-0504

Arnold H. Pollock

Hearing Officer

Division of Administrative Hearings

Desoto Building, 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550