HESS MARINE, INC., PETITIONER,
v.
JOHN D. CALVIN, RESPONDENT, CYCLE WORLD, INC., INTERVENOR
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Hess Marine, a Honda franchisee, challenged an administrative order granting a motor vehicle dealer license to competitor Cycle World in the same territory. The court held that the statutory requirement for denying a new dealer license—that existing licensed dealers provide adequate representation—was not satisfied, and vacated the license grant because the administrator found the existing dealer was already providing adequate service.
The statutory requirement was not met. Because the respondent found that the existing licensed franchisee was furnishing adequate service in its locality, the order granting the new license was improper and must be quashed, as the statute did not permit the grant of a new license under those circumstances.
[1] A motor vehicle dealer license may be denied if a currently licensed dealer is providing adequate representation in the community or territory.
[2] The burden of proof to demonstrate inadequate representation rests with the applicant seeking a new motor vehicle dealer license.
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Join FLexlaw to unlock all legal intelligence“The department shall deny an application for a motor vehicle dealer license in any community or territory where the licensee's presently licensed franchised motor vehicle dealer or dealers have complied with licensee's agreements and are providing adequate representation in the community or territory for such licensee.”
Establishes the controlling statutory standard that the respondent violated by granting the license
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Join FLexlaw to unlock all legal intelligenceRespondent, as the head of the department issuing motor vehicle dealer licenses, granted an application from Cycle World, Inc. for a license to sell H…
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PER CURIAM.
This is a petition for certiorari pursuant to the Administrative Procedure Act, Chapter 120, Florida Statutes, F.S.A, to review the final order of respondent granting an application of Cycle World for a license as a motor vehicle dealer to sell Honda products in the Pensacola area. The statute governing issuing of such a license by respondent, Section 320.642, Florida Statutes, F.S.A., states as follows:
“The department shall deny an application for a motor vehicle dealer license in any community or territory where the licensee’s presently licensed franchised motor vehicle dealer or dealers have complied with licensee’s agreements and are providing adequate representation in the community or territory for such licensee. The burden or proof in showing inadequate representation shall be on the licensee.”
In his order granting the license applied for, respondent made the following findings and no others:
“. . . The Director finds from the facts presented that while the presently licensed franchised dealer is furnishing adequate service in its locality, the territory as a whole and particularly that portion of the territory where the applicant is now located would be more adequately served with an additional dealer in Honda motorcycles, and that it would be'unreasonable and arbitrary to deny a license to the applicant.”
Respondent’s findings do not meet the requirements of the above quoted statute for the granting of such an application. Respondent has neither found that the presently licensed franchise dealer has not complied with his agreements nor has respondent found that such licensee is not providing adequate representation in the community or territory for such licensee. On the other hand, respondent has found from the evidence presented to him that the existing licensee is furnishing adequate service in its locality. Such finding precludes the entry of an order granting a new license.
Certiorari is granted, respondent’s order is quashed, and respondent is directed to rescind the license issued to intervenor, Cycle World, Inc. SPECTOR, Acting C. J., McCORD, and CHRISTIE, IRWIN G.,- Associate Judge, concur.
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Citator
Cited By
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McCULLEY Ford, Inc. v. Calvin, 308 So. 2d 189 (Fla. 1st DCA 1974)…t 1973, 279 So. 2d 339; Plantation Datsun, Inc. v. Calvin, supra; Deel Motors, Inc. v. Department of Commerce, supra; Hickey v. Wells, supra and Schwartz, American Administrative Law, page 75) [*197] In Hess Marine, Inc. v. Calvin, Fla.App.1st 1974, 296 So. 2d 114, in which the adequacy of the director’s findings was not made an issue for our review, we held that inasmuch as the director had found from the evidence presented to him that the existing licensee was furnishing adequate service in its locality, su…
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Lynch-Davidson Motors, Inc. v. Calvin, 308 So. 2d 197 (Fla. 1st DCA 1974)…page 311) This point is thoroughly treated in our opinion in McCulley, supra, and the reasoning there is equally applicable here. [*199] Neither is this case necessarily controlled by our decision in Hess Marine, Inc. v. Calvin, Fla.App. 1st 1974, 296 So. 2d 114, in which the same form of order was employed by the director as that sub ju-dice. In the Hess Marine case the adequacy of the director’s findings was not made an issue for our review: They are in this case. For the reasons above stated we do not n…
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Bill Kelley Chevrolet, Inc. v. Calvin, 322 So. 2d 50 (Fla. 1st DCA 1975)…n notwithstanding their inadequate representation of Chevrolet in an identifiable part of the territory. The Director’s finding that Chevrolet’s representation in the territory is inadequate distinguishes this case from Hess Marine, Inc. v. Calvin, 296 So. 2d 114 (Fla.App. 1st, 1974) and Barnard & Russell Ent., Inc. v. Calvin, 296 So. 2d 115 (Fla.App. 1st, 1974). See Lynch-Davidson Motors, Inc. v. Calvin, 311 So. 2d 792 (Fla. App.1st, 1975). We have also considered, but we cannot sustain, petitioners’ other…
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