Bill Kelley Chevrolet, Inc. v. Calvin

• Decision Date: 31 October 1975
• Docket Number: No. U--145,U--145
• Citation: 322 So.2d 50
• Court: Florida District Court of Appeals
• Parties: BILL KELLEY CHEVROLET, INC., et al., Petitioners, v. John D. CALVIN, etc., et al., Respondents.

Page 50

322 So.2d 50

BILL KELLEY CHEVROLET, INC., et al., Petitioners, v. John D. CALVIN, etc., et al., Respondents.

No. U--145.

District Court of Appeal of Florida, First District.

Oct. 31, 1975.

Rehearing Denied Dec. 5, 1975.

S. William Fuller, Jr., of Quinton, Leib & Lummus, Miami, for petitioners.

Charles Knott, Tallahassee, Herman Grayson, Miami Beach, and Joseph C. Jacobs, of Ervin, Varn, Jacobs & Odom, Tallahassee, for respondents.

J. Robert McClure, Jr., of McClure & Wigginton, Tallahassee, for amicus curiae.

SMITH, Judge.

Four licensed Chevrolet dealers have petitioned for review of an order entered by the Director of the Division of Motor Vehicles licensing Marshall Berwick as a franchised Chevrolet dealer in Hollywood. Sec. 120.68, F.S.1973. Petitioners urge that the Director granted the license in violation of § 320.642, F.S.1973, providing:

'The department shall deny an application for a motor vehicle dealer license in any community or territory where the licensee's (General Motors') presently licensed franchise 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 of proof in showing inadequate representation shall be on the licensee.'

The Director, who made no detailed findings of fact when initially determining the matter, later supplied the essential findings at our request. Bill Kelley Chevrolet, Inc. v. Calvin, 308 So.2d 199 (Fla.App.1st, 1974). We then held that the Director is authorized by the quoted statute to license an additional dealer in a territory in either of two circumstances: if the existing dealers have failed to comply with their franchise agreements or if the dealers are not providing adequate representation in their community or territory.

Chevrolet's franchise agreement with each of its twelve existing dealers in the Miami multiple dealer area provides that the dealer's territory of responsibility shall be virtually the entire inhabited area of Dade and Broward Counties. Because of the contiguous population and the facility of transportation and communication within the area, each of the twelve dealers has theoretical sales and service responsibilities throughout the territory, including the Hollywood area where General Motors and Berwick proposed, in this proceeding, that Berwick be licensed to operate a new agency.

Notwithstanding their coextensive privileges and responsibilities throughout the populous two-county area, each of the twelve existing dealers enjoys and is recognized by General Motors as enjoying a 'geographic sales and service advantage' in the area adjacent to his dealership site. This simply means that, because of proximity and access, the Chevrolet dealer in that area is the one likely to be chosen by that area's consumer population for Chevrolet sales and service.

On substantial evidence submitted by General Motors and Berwick, the Director held that none of the existing twelve dealers is close enough to the Hollywood population center to exploit a geographic advantage there, although several dealers enjoy business emanating from that area. The Director also found that the existing twelve are in full compliance with their agreements with General Motors, that each well and vigorously represents General Motors within the area of its geographic advantage and that the collective performance of all twelve provides Chevrolet more than satisfactory...