Florida/Georgia Personal Injury & Workers Compensation

...§ 549) against all defendants (9) Violation of the Automatic Stay (11 U.S.C. § 362) against all defendants; (10) Violation of the Automatic Stay (11 U.S.C. § 362) against GM; (11) Constructive Termination of the Distribution/Franchise Agreement (Fla. Stat. § 320.641) against all defendants; (12) Illegal Conduct Related to Motor Vehicle Business (Fla....

...Rather, it believes GMDAT has an obligation to Daewoo America that survives bankruptcy and is attempting to enforce it. 16 Daewoo America failed to specify the statutory subsection that formed the basis for this claim. It nevertheless appears that Daewoo America based this claim on Fla. Stat. § 320.641(1)(b)(3), which proscribes the “unfair” termination of a franchise agreement....

...Robert McClure, Jr., and William C. Owen, of McClure & Wigginton, Tallahassee, for Florida Auto. Dealers Assn., amicus curiae. ENGLAND, Justice. This case is here on direct appeal from an order of the Broward County Circuit Court which upheld the constitutionality of Sections 320.641 and 320.695, Florida Statutes....

...asking that the court reinstate the franchise contract. Following a series of procedural events not pertinent to this appeal, [1] the trial court entered an order granting U-Cycle the relief it requested. In that order the trial court found Sections 320.641 and 320.695, Florida Statutes, to be constitutional, and it held that Yamaha's contract termination was invalid for failure to provide 90 days notice of termination as required by Section 320.641(1)(a). That order is the subject of this appeal. Sections 320.641 and 320.695, enacted in 1970, became effective on January 1, 1971 after Yamaha and U-Cycle established their franchise relationship....

...deferred "until final determination by the department of the issues raised in such complaint." [5] Section 320.695 authorizes injunctive relief for a failure to comply with this notice provision. Yamaha contends that the 90 day notice requirement of Section 320.641 cannot be applied to its 1970 franchise contract with U-Cycle because the statute was intended to be prospective in operation....

...If Yamaha believed that it could not tolerate abuse of its market position for more than 30 days and entered into an exchange of promises on that basis, [13] no subsequent governmental enactment should require the continuation of an unwanted situation for a significantly longer term. We hold that the Section 320.641, Florida Statutes, applies prospectively to motor vehicle franchise contracts signed after its effective date....

...[3] Motorcycles are included in the definition of "motor vehicle" in Section 320.60(9), Fla. Stat. [4] The regulatory scheme in chapter 320, Fla. Stat., is monitored by the Department of Highway Safety and Motor Vehicles. Section 320.60(7), Fla. Stat. [5] Section 320.641(3), Fla....

...Indeed, at oral argument, counsel for Cabriolet characterized this matter as "somewhat of a moot point." We will not review that which is not at issue. D. Other Violations of Florida Statutes 108 The district court found that American Honda violated sections 320.64(4) and (8) and section 320.641 of the Florida Statutes....

...111 Subsection 320.64(8) is violated if a motor vehicle manufacturer, distributor or importer 112 has unfairly or without due regard to the equities of a motor vehicle dealer, or without just provocation, canceled or failed to renew, the franchise agreement of such motor vehicle dealer. 113 Section 320.641(1)(a) provides that motor vehicle manufacturers, distributors and importers 114 shall notify the motor vehicle dealer and forward a copy of such notice to the department of ......

...it expired by its own terms on October 31, 1979. According to the court, American Honda refused to renew the agreement because Cabriolet would not erect exclusive facilities and Cabriolet had filed this lawsuit. 17 116 We find neither 320.64(8) nor 320.641(1)(a) applicable....

...The only step American Honda failed to take was to renew the agreement formally in writing. We will not put form above substance in this instance. American Honda's conduct did not amount to a "failure" to renew within the meaning of the Florida Statute. Thus, 320.641(1)(a) and 320.64(8) do not apply....

...Honda had done so, and communicated that system to Cabriolet. Under that system, Cabriolet would not receive an extra, unearned sixty cars, unless it provided an exclusive facility or was a new dealership 16 See discussion page 1209 of text 17 The court further found that 320.641(1)(a) was also violated when American Honda discriminated against Cabriolet in allocation and distribution of vehicles, thereby constituting a de facto "termination" or "discontinuance" of Cabriolet's dealership, in violation of the notice requirements of Section 320.641....

...s-Benz notifies the dealer that the disagreement must be resolved. On October 23, 1985, Mercedes-Benz notified MSP of its intent to terminate the Dealer Agreement because MSP had not sufficiently resolved the management dispute. 1 4 Pursuant to Sec. 320.641, MSP filed an administrative complaint with the Department of Highway Safety and Motor Vehicles (Department), claiming unfair termination of the Dealer Agreement....

...obscure and unclear statute would be decisive and authoritative, one on which the people of Florida could rely. 42 I would certify these questions to the Florida Supreme Court. To this Court's failure to use this valuable mechanism, 43 I dissent. 1 Section 320.641(1)(a) requires a manufacturer to give 90 days notice of its intent to cancel a dealer franchise agreement....

...Inc., seeks review of an order of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles in which the Division assumed jurisdiction to determine if Fiat unfairly canceled the dealership franchise of Alpine Motors, Inc. Section 320.641(3), Florida Statutes (1977), provides: *909 (3) Any motor vehicle dealer whose franchise agreement is discontinued, canceled, or not renewed may, within [90 days before the date of cancellation], file with the [Department of Highway S...

...asserting that the planned termination was "highly unfair" for stated reasons. Accepting Alpine's letter in lieu of the verified complaint required by the statute, respondent Calvin, director of the Division, entered an order setting a hearing under Section 320.641(3)....

...dismissed, 300 So.2d 900 (Fla. 1974). It follows that the Division could not dispense with the requirement that proceedings be initiated by a verified complaint. This is an appropriate case for our intervention to review preliminary agency action. Section 320.641(3) provides that the dealer's filing of a verified complaint, without more, stays the licensee's cancellation of a dealer franchise and prevents the granting of another franchise at that location until the merits are determined....

...FLORIDA ADDA We also affirm summary judgment as to count IX of the complaint, violation of the Florida ADDA. We agree with the trial court's finding that appellant was not a "motor vehicle dealer" under the Florida ADDA. Appellant alleges violation of section 320.641, unfair cancellation of franchise agreements; section 320.645, restriction upon ownership of *65 dealership by licensee; section 320.695, injunction; and section 320.697, civil damages. Section 320.641 [2] requires a licensee, in this case Ford, to give written notice to the Florida Department of Highway Safety & Motor Vehicles (DHSMV) and the "motor vehicle dealer" when it intends to discontinue or modify a franchise agreement at l...

...We *70 remand for further proceedings consistent with this opinion. REVERSE in part, AFFIRM in part. JOANOS and VAN NORTWICK, JJ., concur. NOTES [1] This is also known as the Florida Motor Vehicle Dealer Act, §§ 320.60-320.70, Fla.Stat. (1995). [2] 320.641....

...Motor Vehicles. "7. On July 27, 1983, the Debtor filed its petition for relief under Chapter 11 of the Bankruptcy Code. "8. No complaint was filed by the Debtor with the Florida Department of Highway Safety and Motor Vehicles, pursuant to Fla.Stat. § 320.641 on or before September 30, 1983." E....

..."the applicant [ i.e., ROLLS-ROYCE] has notified the department [the Florida Department of Highway Safety and Motor Vehicles] of the discontinuation or cancellation or a failure to renew the agreement of any of its motor vehicle dealers." Fla.Stat. § 320.641(2) (1981)....

...f any of its motor vehicle dealers at least 90 days before the effective date thereof, together with the specific grounds for discontinuation, cancellation, or failure to renew of said agreement, if discontinued, canceled, or not renewed." Fla.Stat. § 320.641(1) (1981)....

...rmination of unfair discontinuation or cancellation. Agreements and certificates of appointment shall continue in effect until final determination by the department of the issues raised in such complaint by the motor vehicle dealer. . . ." Fla.Stat. § 320.641(3) (1981)....

...ing on or after the commencement of the case; and (2) Two years after the order for relief." The Debtor argues that this provision extends the 90-day period during which the Debtor may seek "a determination of unfair discontinuation" under Fla.Stat. § 320.641(3). The Debtor then argues that the Dealer Agreement is in turn kept in effect by the provision of Fla.Stat. § 320.641(3) which states that dealer agreements "shall continue in effect until final determination by the department of the issues raised in such complaint." The Court concludes that section 108(a) does not apply because the right of a dealer to protest to the Department is not an "action" contemplated in section 108(a)....

...le. Both Moody and Anne Cara considered the applicability of section 108(b), not 108(a). Moreover, the Florida District Court of Appeal has held that the 90-day notice period during which an automobile dealer may protest non-renewal under Fla.Stats. § 320.641 is a jurisdictional requirement of the Department's power to act; the failure of the dealer to seek a determination during that period leaves the Department "without power to acquire jurisdiction." Fiat Motors of North America v. Calvin, 356 So.2d 908 (Fla. DCA 1, 1978). The court in Fiat Motors recognized that the 90-day limitation was more than a mere time limit or statute of limitations: "Section 320.641(3) provides that the dealer's filing of a verified complaint, without more, stays that licensee's cancellation of a dealer franchise and prevents the granting of another franchise at that location until the merits are determined....

...be returned within a year without penalty, and that leased vehicles were not actually leased but were sold. Thereafter, in August 1988, Cook Ford filed a complaint with the Department of Highway Safety and Motor Vehicles (DHSMV) on the authority of section 320.641, Florida Statutes (1987), seeking a determination of whether the proposed termination was unfair or prohibited....

...Cook Ford also maintains the trial court's rulings on the exclusiveness of remedy and exhaustion of remedies were incorrect. Sections 320.60 through 320.70, Florida Statutes (1987), establish regulations for automobile manufacturers, importers, distributors, and dealers. Section 320.641(1)(a) requires a manufacturer — a "licensee" under the nomenclature of Chapter 320 — to give written notice to a dealer of the manufacturer's intent to terminate a franchise at least 90 days before the termination is to take effect. There is no dispute in the instant case that Ford did give timely notice. Section 320.641(3) provides that any motor vehicle dealer whose franchise agreement is discontinued, canceled, not renewed, modified or replaced may file within the 90 day period a complaint with DHSMV for a determination of whether such action is "unfair or prohibited." [3] The filing of a complaint stays the termination until a final determination as to the propriety of the intended termination is made by DHSMV. Section 320.641(5) provides that if the dealer prevails, he shall have a cause of action against the licensee for attorney fees and costs....

...Examination of Chapter 320 reveals that both administrative and court actions are available to dealers for the purpose of enforcing compliance by licensees and that these remedies are, in some instances, both alternative and cumulative. For example, the provision for stay of a threatened termination found in section 320.641(3) is not exclusive, since under 320.695, the dealer may apply to the circuit court for the issuance of a temporary or permanent injunction against a licensee to prohibit a violation of any provision of sections 320.60-320.70, and the injunction shall be issued without bond. The only limitation on the availability of injunctive relief in the circuit court is that this remedy "shall not be applicable to any motor vehicle dealer after final determination by the Department under s. 320.641(3)." § 320.695, Fla. Stat. (1987) (emphasis supplied). Similarly, while resort may be had to the administrative forum pursuant to section 320.641(3) to determine whether a threatened termination is "unfair or prohibited," the dealer may also base a cause of action for damages pursuant to section 320.697 upon a licensee's violation of section 320.64(7) by showing that the licensee threatened "unfairly ......

...r the court's determination that Cook Ford's court action for damages was barred by failure to exhaust administrative remedies. We agree, as Cook Ford appropriately points out, that once transfer of the dealership was made during the pendency of the section 320.641(3) administrative proceeding, Cook Ford was not required to continue to seek relief in the *517 administrative forum, but could avail itself of the independent statutory action for treble damages under section 320.697....

...3d DCA), cert. denied, 116 So.2d 772 (Fla. 1959). III. Much of the above discussion also applies to the issue of waiver. The trial court ruled, at the urging of appellee Ford, that by first resorting to, and then abandoning, the administrative proceeding under section 320.641(3), Cook Ford waived its right to seek a court ruling that the threatened termination of the franchise was unfair or prohibited....

...As above-noted, the statutory scheme does not lend itself to this interpretation, but in fact indicates the opposite. The only waiver provision found is the one incorporated into section 320.695, noted above, which precludes resort to a court for an injunction after final determination by DHSMV under section 320.641(3)....

...of a manufacturer or distributor if the licensee has "unfairly or without due regard to the equities of a motor vehicle dealer, or without just provocation, threatened to cancel or not to renew the franchise agreement" of a motor vehicle dealer. [3] Section 320.641(3) uses the past tense....

...[4] Since no such provision appears in the California statutes, we find inapposite Yamaha Motor Corporation, U.S.A. v. Superior Court, 195 Cal. App.3d 652, 240 Cal. Rptr. 806 (6th Dist. 1987), cited to us by Ford. [5] Cook Ford concedes that certain 1988 amendments to section 320.641(3) are not applicable in this case, since these amendments became effective subsequent to the threatened franchise termination notice....

...It is the contention of Chrysler that the Debtor has failed to engage in business with the public for more than ten consecutive days and, thus, the Debtor forfeited its dealership license. Therefore, Chrysler maintains that it is permitted to declare the dealership agreement terminated pursuant *678 to Fla.Stat. § 320.641(4)....

...Additionally, Chrysler contends that it has a right to terminate its contract with the Debtor pursuant to Fla.Stat. § 320.643(1), and in any event the franchise agreement cannot be assigned without the consent of the franchisor. These Sections of the Florida Statutes provide in pertinent part as follows: 320.641....

...surer-footed reading of the applicable law." United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218, 228 (1966). Neither the parties, nor I, have discovered any reported decision of a Florida court construing Section 320.641, Florida Statutes, in the context of the claim stated in Count X....

...Secs. 320.64(5), (8), (9); 320.696; 320.697 (1973). 31 Sections 320.60-70 were enacted to facilitate the legislative intent of ensuring fair dealing between motor vehicle manufacturers, motor vehicle dealers, and motor vehicle consumers. In addition, section 320.641 prohibits unfair cancellations of franchise agreements and provides for administrative review by the Director. The sole criterion for agency review, under section 320.641(3), is whether a party "unfairly cancelled" the franchise agreement....

...Jacobs of Ervin, Varn, Jacobs & Odom, Tallahassee, amicus curiae. SPECTOR, Chief Judge. Petitioner seeks a writ of certiorari to review an order of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles denying petitioner a license to operate a Datsun dealership. Section 320.641 et seq., Florida Statutes, F.S.A....

...trial court also ruled MBNA would be precluded from discovering and introducing any evidence at trial concerning this affirmative defense. The court also struck MBNA's final defense relating to the impact of the 1980 amendment, reasoning that under section 320.641(3), Florida Statutes (1971), all beneficial changes accrue to the benefit of the continuing dealer, Fifth Avenue....

...section 56:10-6. With respect to Count II, the trial court ruled the addition of the "unreasonably withholding consent" language of the 1980 revised Mercedes-Benz standard dealer agreement inured to the benefit of both Fifth Avenue and Hawkins under section 320.641(3), Florida Statutes....

...rd dealer agreement could not be used by Fifth Avenue or Hawkins as a basis for a cause of action to compel a transfer of the franchise. The reason for our holding is that the trial court made its determination by applying Florida law, in particular section 320.641(3)....

...til January 31, 1986. This notice and extension is pursuant to the provisions of Paragraphs 15 and 16 of the Mercedes-Benz Passenger Car Dealer Agreement. [2] On January 16, 1986, MSP filed an administrative complaint with the Department pursuant to section 320.641, Florida Statutes (1985), alleging unfair termination of the dealer agreement. Because the complaint was filed within the ninety day notice period, the dealer agreement continued in effect by operation of section 320.641(3), *622 Florida Statutes (1985), [3] until the termination dispute was resolved....

...When a licensee challenges a proposed transfer under section 320.643, the franchise agreement is preserved until the matter is resolved; the Department is required to expedite the transfer challenge. See § 320.643(2)(b), Fla. Stat. (1985). Even if the dealer has already invoked section 320.641(3) to contest an attempted termination of the franchise agreement, the termination statute clearly envisions that a transfer under section 320.643 can take place....

...ch written extension or renewal shall not operate as an extension or renewal of this Agreement. Nevertheless, all such business relations, so long as they are continued, shall be governed by terms identical with the provisions of this Agreement. [3] Section 320.641(3) provides as follows: Any motor vehicle dealer whose franchise agreement is discontinued, canceled, not renewed, modified, or replaced may, within the 90-day notice period, file with the department a verified complaint for a determi...

...except to the extent that such application would impair contractual agreements in violation of the Florida Constitution or Federal Constitution. All agreements renewed or entered into subsequent to May 31, 1984, will be governed by this act. [7] See § 320.641(1)(a), Fla....

...Indeed, at oral argument, counsel for Cabriolet characterized this matter as “somewhat of a moot point.” We will not review that which is not at issue. D. Other Violations of Florida Statutes The district court found that American Honda violated sections 320.64(4) and (8) and section 320.641 of the Florida Statutes....

...Subsection 320.64(8) is violated if a motor vehicle manufacturer, distributor or importer has unfairly or without due regard to the equities of a motor vehicle dealer, or without just provocation, canceled or failed to renew, the franchise agreement of such motor vehicle dealer. Section 320.641(l)(a) provides that motor vehicle manufacturers, distributors and importers shall notify the motor vehicle dealer and forward a copy of such notice to the department of ......

...The only step American Honda failed to take was to renew the agreement formally in writing. We will not put form above substance in this instance. American Honda’s conduct did not amount to a “failure” to renew within the meaning of the Florida Statute. Thus, 320.641(l)(a) and 320.64(8) do not apply....

...Honda had done so, and communicated that system to Cabriolet. Under that system, Cabriolet would not receive an extra, unearned sixty cars, unless it provided an exclusive facility or was a new dealership. . See discussion page 1209 of text. . The court further found that 320.641(l)(a) was also violated when American Honda discriminated against Cabriolet in allocation and distribution of vehicles, thereby constituting a de facto "termination” or "discontinuance” of Cabriolet’s dealership, in violation of the notice requirements of Section 320.641....

...International Harvester petitions for review from an order of the Director of the Division of Motor Vehicles setting aside an attempted cancellation of its franchise agreement with its West Palm Beach dealer, Rich Motors. The Director has so acted under Section 320.641, Florida Statutes (1975), which allows him to find an "unfair cancellation" in such situations....

...dealership in neighboring Delray Beach. Rich contends it informally protested the action to International, but the complaints were ignored. Rich formally complained to the Department of Highway Safety and Motor Vehicles, under another subsection of Section 320.641....

...summarized above. The proposed findings of Rich Motors were adopted in full. [1] The cancellation of the franchise agreement was found to be done in bad faith by the manufacturer, constituting an unfair cancellation under Sections 320.64(7), (8) and 320.641....

...ler in West Palm Beach under all present contractual agreements. ANALYSIS Sections 320.60-70 were enacted as part of a legislative scheme to insure fair dealing at all levels between motor vehicle manufacturers, the dealers and the consuming public. Section 320.641 specifically deals with unfair cancellations of franchise agreements and provides in subsection (3) for administrative review by the Director. The only criterion for agency review under Section 320.641(3) is whether the franchise agreement was unfairly cancelled....

...F.S.A., seeking to have the appellees, defendants in the trial court, hereinafter referred to as "Leyland", enjoined *578 from discontinuing, cancelling or failing to renew a certain agreement between the parties until complying with Florida Statute 320.641, F.S.A....

...s" [1] and as "Factory Branch, Factory Representative, Manufacturer, Distributor or Importer". [2] The sole question presented is whether or not Leyland may refuse to renew its contract with Ship & Shore without complying with the provisions of F.S. Section 320.641, F.S.A., which provides in part: "(1)(a) An applicant or licensee shall notify the motor vehicle dealer and forward a copy of such notice to the department of the licensee's intention to discontinue, cancel, or fail to renew the franc...

...les are owned by such person, firm, or corporation." is controlling. It is contended that this definition is clear and unambiguous; that Ship & Shore buys and sells motor vehicles; that Ship & Shore is, therefore, a dealer within the meaning of F.S. Section 320.641, F.S.A.; that the court cannot change the plain meaning of the statute and, consequently, must grant the relief sought....

...etween a distributor and a dealer. The statute has different provisions for the regulation of distributors and dealers, particularly as to the conditions for granting and revoking licenses. Certainly the legislature contemplated that the benefits of Section 320.641 would extend to that class of "dealers" which were licensed and regulated as such....

...Did it also intend those benefits to the "dealers" who were, in fact, "distributors"? When the statute as a whole is considered, it is clear that it did not. Any problem about the inclusion of "distributors" in the definition of "dealers" as that term is used in Section 320.641 is relieved by the fact that all the definitions contained in Section 320.60 are qualified by the phrase "unless the context otherwise requires". The court is of the opinion that the context of Section 320.641, when considered in the context of the whole of Chapter 320, requires that the words "motor vehicle dealer" as used in Section 320.641 be construed not to include "distributors". Since the contract which Leyland has elected not to renew was not a contract between Leyland as distributor and Ship & Shore as a "dealer", Florida Statute 320.641, F.S.A., does not require that Leyland give notice of intention not to renew this contract, nor is there any requirement that the other provisions thereof be complied with. If there were doubt as to whether the contract in question was within the terms of Section 320.641, that doubt would have to be resolved in favor of Leyland because the right of contract should not be denied to any person unless clearly restricted by a valid law....

...(7) The applicant or licensee has threatened to discontinue, cancel, or not to renew a franchise agreement of a. licensed motor vehicle dealer, where the threatened discontinuation,' cancellation, or nonrenewal, if implemented, would be in violation of any of the provisions of § 320.641. (8) The applicant or licensee discontinued, canceled, or failed to renew, a franchise agreement of a licensed motor vehicle dealer in violation of any of the provisions of § 320.641....

...t. Count 5 is dismissed without prejudice. B.Counts 6 and 7 Fla. Stat. 320.64(7) and 320.64(8) respectively prohibit the threat of cancel-ation and actual cancelation of a franchise agreement by the manufacturer that does not comport with Fla. Stat. § 320.641 , which requires 90-day advance written notice of any intent not to cancel or fail to renew a franchise agreement....

...Against all Defendants, DMA alleges: (V) Violation of the Cartwright Act, Cal. Bus. & Prof.Code § 16720 et seq.; (VI) Unfair Competition, Cal. Bus. & Prof.Code § 17200; (VIII) Unauthorized Post-Petition Transfer, 11 U.S.C. § 549; (XI) Constructive Termination of *154 Distribution/Franchise Agreements, Florida Statute § 320.641; and (XIV) Constructive Termination of Distribution Agreement, Mass....

...Chrysler Corporation (Chrysler) appeals a final judgment dismissing, with prejudice, its complaint for injunctive and declaratory relief. We affirm in part, reverse in part, and remand the cause for further proceedings in the trial court relating to Chrysler's challenge to the facial constitutionality of section 320.641(3), Florida Statutes (1995)....

...ome effective in Florida 90 days after issuance of the notice. The statute governing notice requirements regarding proposed modifications of franchise agreements between motor vehicle manufacturers ("licensees") and dealers states in pertinent part: 320.641 Unfair cancellation of franchise agreements.— (1)(a) An applicant or licensee shall give written notice to the motor vehicle dealer *566 and the department of the licensee's intention to discontinue, cancel, or fail to renew a franchise agre...

...ler under an existing franchise agreement or will substantially impair the sales, service obligations, or investment of the motor vehicle dealer, at least 90 days before the effective date thereof, together with the specific grounds for such action. § 320.641(1)(a), Fla....

...A discontinuation, cancellation, or nonrenewal of a franchise agreement is unfair if it is not clearly permitted by the franchise agreement; is not undertaken in good faith; is not undertaken for good cause; or is based on an alleged breach of the franchise agreement which is not in fact a material and substantial breach. § 320.641(3), Fla. Stat. (1995). In September 1996, seven Florida Chrysler motor vehicle dealers filed with the Department an administrative complaint against Chrysler seeking relief pursuant to section 320.641(3), Florida Statutes (1995), and requesting a determination as to whether Chrysler's proposed modification 1) is void as "unfair" to the dealers; 2) violates chapter 320; and 3) is void because it will adversely alter the dealers' rig...

...ntially impair the dealers' sales and service obligations or investment. Upon the filing of the complaint, the proposed modification of the franchise agreement was automatically stayed as to the seven Florida franchises challenging the modification. § 320.641(3), Fla....

...claratory relief from the alleged violation of Chrysler's constitutional rights. Chrysler challenged the constitutionality of provisions of chapter 320, Florida Statutes (1995), facially and as applied. In its facial challenge, Chrysler alleged that section 320.641(3), Florida Statutes (1995), "provides no standard to determine whether a franchise agreement modification is `unfair' or otherwise prohibited." In its as-applied challenge, Chrysler alleged that the application of chapter 320 to the...

...n for summary judgment on its constitutional claims and sought to have its motion heard at the same time as the motion to dismiss. At the August 1, 1997, motion hearing in the circuit court, the Department argued for dismissal on the grounds 1) that section 320.641 affords due-process rights to motor vehicle dealers when a manufacturer proposes to amend a franchise agreement; 2) that Chrysler was improperly trying to circumvent the usual administrative process; 3) that the D.O.A.H....

...stitutional claims without affording adequate notice and an opportunity to be heard. Assuming arguendo that the circuit court was authorized to dismiss its claims on the merits, Chrysler alleges error in the court's purported conclusion that chapter 320.641(3) is constitutional....

...Mercedes-Benz notifies the dealer that the disagreement must be resolved. On October 23, 1985, Mercedes-Benz notified MSP of its intent to terminate the Dealer Agreement because MSP had not sufficiently resolved the management dispute. 1 Pursuant to § 320.641, MSP filed an administrative complaint with the Department of Highway Safety and Motor Vehicles (Department), claiming unfair termination of the Dealer Agreement....

...*535 CONCLUSION For the foregoing reasons, we reverse the judgment of the district court on the issue of mandatory trebling and remand for a determination of appropriate damages. In all other respects, the district court’s judgment is affirmed. AFFIRMED in part, REVERSED in part and REMANDED. . Section 320.641(l)(a) requires a manufacturer to give 90 days notice of its intent to cancel a dealer franchise agreement....

...certain policies implemented by a manufacturer and the fairness of a proposed franchise agreement. By this appeal and cross-appeal, the dealers and the manufacturer contest aspects of the agency’s final order. We reverse the agency’s determination that the dealers were entitled to section 320.641 fairness hearings on the challenged policies; we affirm the agency’s determination of the fairness of the proposed franchise agreement in all respects.  Maserati North America, Inc....

...During this transition period, every dealer received the maximum 5.5% bonus payment upon shipment of new vehicles to the dealer, whether or not the dealer met any of the program’s performance standards. The dealers challenged the 2017 program under section 320.641, Florida Statutes (2017). They argued that Maserati did not comply with the 90-day notice requirement of subsection 320.641(1)(a), so that the 2017 program was “voidable” at their option pursuant to subsection 320.641(1)(b). The ALJ ruled that the dealers were entitled to a hearing under section 320.641(3), that Maserati substantially complied with the notice provision, 1 and that the 2017 program was fair and not prohibited under subsection 320.641(3)....

...legislative intent behind the statute: 1Because we hold that the dealers were not entitled to fairness hearings for which notice is required, we do not reach the question of whether the notice in this case satisfied the 90-day notice provision of section 320.641. -3-  It is the intent of the Legislature to protect the public health, safety, and welfare of the citizens of the state by regulating the licensing of motor vehicle dealers an...

...maintaining competition, providing consumer protection and fair trade and providing minorities with opportunities for full participation as motor vehicle dealers. § 320.605, Fla. Stat. (2017). 2 As it applies to this case, the 90-day notification provision of subsection 320.641(1)(a) applies where the manufacturer intends to “modify a franchise or replace a franchise with a succeeding franchise” and such a franchise modification “will adversely alter the rights or obligations of a motor vehicle dealer under an existing franchise agreement” or “will substantially impair the sales, service obligations, or investment of the motor vehicle dealer.” § 320.641(1)(a), Fla....

...dealer’s “rights or obligations” under the existing franchise agreement or “substantially impair[s]” the dealer’s “sales, service obligations, or investment.” Id. A dealer’s “franchise” is the creation of a “franchise agreement.” Section 320.641 is entitled “Discontinuations, cancellations, nonrenewals, modifications, and replacement of franchise agreements.” For the purpose of section 320.641, the term “franchise agreement” is unambiguously defined as, a contract, franchise, new motor vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a manufacturer ....

...program within the definition of the franchise agreement. Rather, it is a reference to the various ways a written franchise agreement might be titled. We agree with Maserati that the 2017 program is not subject to the notice and fair hearing provision of section 320.641 because it did not modify the existing contractual relationship between Maserati and the dealers. Only two provisions of the existing franchise agreements between Maserati and the dealers arguably relate to the policies implemented by the 2017 program....

...faceted franchise business relationship,” rather than the written contractual relationship, “that defines the parameters of the franchise agreement between the parties.” In so doing, the Department impermissibly rewrote the plain language of subsections 320.60 and 320.641. The term “franchise” in subsection 320.641(1)(a) refers to a -5- contractual relationship, not a “broader, multi-faceted business relationship.” Selling motor vehicles is not like selling corn flakes and milk....

...gasoline prices, and tariffs, to name a few—and the existing franchise agreement gives manufacturers the flexibility to quickly respond to changes in the marketplace without having to pass through a gauntlet of administrative proceedings. Nothing in subsections 320.641 or 320.60 so handcuffs motor vehicle manufacturers. Because the dealers failed to show that the 2017 program modified their franchise agreements with Maserati, we reverse that portion of the final order directed at the implementation of th...

complaint for attorneys’ fees filed pursuant to Section 320.-641(5), Florida Statutes (1981). The basis for

...service obligations, and investment of [the dealer]. … Additionally, in removing the [disputed] Zip Codes from [the dealer’s] PAR, [the licensee] modified the Dealer Agreement[] without following the procedures set forth in Florida Statute §320.641. [The dealer] seeks a declaration that [it] has declared [the licensee’s] PAR modification void as provided in Florida Statute §320.641(1)(b) and pursuant to [the dealer’s] declaration, [the] modification is void and of no force or effect. (emphases added; paragraph numbering omitted). As seen above, the dealer’s protest petition relied upon sections 320.64(9) and 320.641, Florida Statutes (2020)....

...would adversely alter the rights or obligations of a motor vehicle dealer under an existing franchise agreement or which substantially impairs the sales, service obligations, or investment of the motor vehicle dealer. § 320.64(9), Fla. Stat. (2020). Section 320.641 pertinently provides: (1)(a) [A] … licensee shall give written notice to the motor vehicle dealer and the department … of the licensee’s intention to modify a franchise …, which modification … will a...

...A modification … is unfair if it is not clearly permitted by the franchise agreement; is not undertaken in good faith; or is not undertaken for good cause. The … licensee shall have the burden of proof that such action is fair and not prohibited. § 320.641(1)(a)-(b), (3), Fla....

...The Department’s final order adopted those portions of the administrative law judge’s findings of fact and conclusions of law quoted above. The final order then declared void the licensee’s proposed franchise agreement modification of certain zip codes pursuant to section 320.641(1)(b). The licensee’s appeal followed. 5....

...A comprehensive PowerPoint presentation explained the reasons behind the implementation of the 2017 program and detailed its elements. Dealers who did not attend the meeting received a hard copy of the presentation by e-mail. Id. The two dealers referenced above challenged the 2017 program under section 320.641, Florida Statutes (2017). Id. The dealers argued that Maserati did not comply with section 320.641(1)(a)’s 90-day notice requirement, so that the 2017 program was “voidable” at the dealers’ option pursuant to subsection 320.641(1)(b). Id. An administrative law judge ruled that although Maserati had substantially complied with section 320.641(1)(a)’s 90-day notice requirement (presumably through its advance dissemination of the 2017 program), the dealers were entitled to a fairness hearing under section 320.641(3). Id. The Department of Highway Safety and Motor Vehicles adopted the administrative law judge’s recommended order as its final order. Id. On appeal, Maserati contended that neither section 320.641’s 90-day notice period nor its fairness hearing was required because the 2017 program did not modify the dealers’ franchise agreement. Id. We agreed with Maserati’s argument, reasoning in pertinent part: 8  For the purpose of section 320.641, the term “franchise agreement” is unambiguously defined as, a contract, franchise, new motor vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a [licensee] ......

... rather than the written contractual relationship, “that defines the parameters of the franchise agreement between the parties.” In so doing, the Department impermissibly rewrote the plain language of subsections 320.60 and 320.641. The term “franchise” in subsection 320.641(1)(a) refers to a contractual relationship, not a “broader, multi-faceted business relationship.” Id....

...ent was likewise automatically terminated and the Plaintiff was required to sell his shares of common stock to DDG. Thereafter, on July 6, 2001, the Plaintiff filed a two count verified complaint. In the Complaint, the Plaintiff alleges violation of § 320.641 and § 320.645, Fla....

...General Motors Acceptance Corp., 5 F.Supp.2d 1365 (S.D.Ga.1998)] better fulfill the intent and purpose of the statute. The purpose of the Act was to stem abuses resulting from the disparity in bargaining power between manufacturers and franchise owners. Kavanaugh at 716-717. A review of the content of the Act, especially § 320.641, Fla....

dealership franchise of Alpine Motors, Inc. Section 320.641(3), Florida Statutes (1977), provides: *909(3)

...Gulde of Nelson, Mullins, Riley & Scarborough, LLP, Tallahassee, for Appellee. PER CURIAM. In this case, three franchise dealers for Sterling Truck Corporation petitioned the Department of Highway Safety and Motor Vehicles (DHSMV) for an administrative hearing pursuant to section 320.641(3), Florida Statutes (2008), which provides: "Any motor vehicle dealer who receives a notice of intent to discontinue, cancel, not renew, modify, or replace may, within the 90-day notice period, file a petition or complaint for a dete...

...The complaints alleged that the decision was made in bad faith, was not undertaken for good cause, and will result in an unfair or prohibited termination of the franchise agreements. In the final order under review, DHSMV dismissed the dealers' complaints on grounds that section 320.641 contains no "clear manifestation of the Legislature's intent to in any way limit a manufacturer's right to choose to go out of business." DHSMV ruled in effect that the cessation of manufacturing operations never affords a dealer the right to petition for a fairness determination pursuant to section 320.641....

...e complaints in this case are pleaded with sufficient particularity. These issues were not reached below. But we conclude that the mere fact of compliance with the franchise agreement does not preclude an administrative hearing. [2] *207 Pursuant to section 320.641(3), Florida Statutes (2008), a dealer has the right to an administrative hearing, upon receipt of a manufacturer's notice of intent to discontinue or modify, in order to show, if it can, that discontinuance or modification violates sections 320.60-320.70, Florida Statutes (2008)....

...A modification or replacement is unfair if it is not clearly permitted by the franchise agreement; is not undertaken in good faith; or is not undertaken for good cause. The applicant or licensee shall have the burden of proof that such action is fair and not prohibited. § 320.641(3), Fla....

the limited class of dealers protected by section 320.641, Florida Statutes (1993). The Department of

...Genera] Motors Corporation (GM) sent written notice to Gus Machado Buick-GMC, Inc. (Machado) that its dealership agreements were being terminated for ceasing to operate the dealership for more than 10 days. This remedy is expressly provided for in subsections 320.641(4) and (5), Florida Statutes (1989)....

...This notice was transmitted by telecopier (fax) machine and the date and time of the transmission and receipt are established for the record. The department referred the matter to the Division of Administrative Hearings (DOAH) where GM moved to dismiss the petition as untimely. It relied on section 320.641(5) which provides: [I]f a motor vehicle dealer has abandoned his franchise agreement as provided in subsection (4), the [manufacturer] may give written notice to the dealer and the department of the [manufacturer’s] intention to dis...

...individual until the right of the previous franchisee to continue the business had been finally resolved. This statute, according to petitioner, provides for different procedures than the 90-day notice period required for normal cancellations. See §§ 320.641(l)-(3), Fla.Stat....

...Fla.Stat. §§ 320.64(5), (8), (9); 320.696; 320.697 (1973). Sections 320.60-70 were enacted to facilitate the legislative intent of ensuring fair dealing between motor vehicle manufacturers, motor vehicle dealers, and motor vehicle consumers. In addition, section 320.641 prohibits unfair cancellations of franchise agreements and provides for administrative review by the Director....

...ection 320.643(1), Florida Statutes (1989), we affirm as to both orders. The facts in these cases are essentially undisputed. Machado closed its dealerships on February 1, 1991. Thereafter, on March 5, 1991, GM notified Machado, pursuant to Sections 320.641(4) and (5), Florida Statutes (1989), that it was exercising its right to cancel its dealership agreements with Macha-do on the ground of abandonment, because the dealerships had been closed for more than ten business days. On March 22, 1991, Machado filed a petition pursuant to section 320.641(5) for determination of whether an abandonment had, in fact, occurred (the termination case, which is now the subject of the appeal in Case No....

...ys and abatement, 3 and by entering the termination *814 order, while the proposed transfer to Potam-kin was pending. 4 Although it is clear that a pending transfer acts to continue the franchise agreement in a termination proceeding commenced under section 320.641(3), see Mike Smith Pontiac, it is unnecessary to determine whether the proposed transfer in the instant ease would have the same effect in GM’s abandonment/termination proceeding commenced under sections 320.641(4) and (5), because the proposed transfer to Potam-kin was invalid....

...e existing franchise in that he did not represent he was purchasing the land and facility from Machado, but rather intended to relocate *814 the franchise contrary to the terms of the agreement. As there was no valid transfer, the stay provisions of section 320.641(7) do not apply....

BARFIELD, Judge. We have for review a non-final order which denied the motion of Ferrari North America, Inc. (Ferrari) to stay or dismiss the protest filed by Crown Auto Dealerships, Inc. (Crown) pursuant to section 320.641, Florida Statutes (1993)....

...The agreement was renewed periodically. On September 30, 1994, Ferrari advised Crown that its dealer agreement would not be renewed when it expired on December 31, 1994. Crown filed a petition/complaint with the Department of Highway Safety and Motor Vehicles for a determination under section 320.641 of whether cancellation of its franchise agreement was an unfair or prohibited action, whether the cancellation was clearly permitted by the franchise agreement, whether the cancellation was undertaken in good faith, whether the cance...

...he parties. The hearing officer incorporated and adopted as his order the order in Coral Gables Imports, Inc., which provided: The Department has been given some limited statutory authority to interpret franchise agreements. See the last sentence of Section 320.641(3), Florida Statutes, which by necessary implication authorizes the Department to determine whether certain specified action by a manufacturer “is not clearly permitted by the franchise agreement ......

...of a claim for unlawful termination. Ferrari contends that because the Department cannot exercise its authority to determine the merits of the controversy between Ferrari and Crown without first determining whether the dispute is properly before it, section 320.641 clearly grants the Department implied authority to interpret the applicability of the mandatory arbitration provision contained in the agreement....

...Finally, Ferrari asserts that there is no basis for distinguishing the arbitration clause at issue from the other franchise agreement provisions which the Department is expressly authorized to interpret. We conclude the hearing officer correctly denied the motion. Section 320.641(3) provides: Any motor vehicle dealer whose franchise agreement is discontinued, canceled, not renewed, modified, or replaced may, within the 90-day notice period, file a petition or complaint for a determination of whether such actio...

...air or prohibited” if a timely complaint or petition is filed by the dealer. The Department has no statutory authority to enforce an arbitration provision contained in a franchise agreement. Because the hearing officer had jurisdiction pursuant to section 320.641 to consider the issues raised by Crown in its petition, the hearing officer did not abuse his discretion in denying Ferrari’s motion to dismiss or stay the action....

...3  Additionally, in removing the [disputed] Zip Codes from [the dealer’s] PAR, [the licensee] modified the Dealer Agreement[] without following the procedures set forth in Florida Statute §320.641. [The dealer] seeks a declaration that [it] has declared [the licensee’s] PAR modification void as provided in Florida Statute §320.641(1)(b) and pursuant to [the dealer’s] declaration, [the] modification is void and of no force or effect. (emphases added; paragraph numbering omitted). As seen above, the dealer’s protest petition relied upon sections 320.64(9) and 320.641, Florida Statutes (2020)....

...would adversely alter the rights or obligations of a motor vehicle dealer under an existing franchise agreement or which substantially impairs the sales, service obligations, or investment of the motor vehicle dealer. § 320.64(9), Fla. Stat. (2020). Section 320.641 pertinently provides: (1)(a) [A] … licensee shall give written notice to the motor vehicle dealer and the department … of the licensee’s intention to modify a franchise …, which modification … will a...

...A modification … is unfair if it is not clearly permitted by the franchise agreement; is not undertaken in good faith; or is not undertaken for good cause. The … licensee shall have the burden of proof that such action is fair and not prohibited. § 320.641(1)(a)-(b), (3), Fla....

...The Department’s final order adopted those portions of the administrative law judge’s findings of fact and conclusions of law quoted above. The final order then declared void the licensee’s proposed franchise agreement modification of certain zip codes pursuant to section 320.641(1)(b). The licensee’s appeal followed. 5....

...A comprehensive PowerPoint presentation explained the reasons behind the implementation of the 2017 program and detailed its elements. Dealers who did not attend the meeting received a hard copy of the presentation by e-mail. Id. The two dealers referenced above challenged the 2017 program under section 320.641, Florida Statutes (2017). Id. The dealers argued that Maserati did not comply with section 320.641(1)(a)’s 90-day notice requirement, so that the 2017 program was “voidable” at the dealers’ option pursuant to subsection 320.641(1)(b). Id. An administrative law judge ruled that although Maserati had substantially complied with section 320.641(1)(a)’s 90-day notice requirement (presumably through its advance dissemination of the 2017 program), the dealers were entitled to a fairness hearing under section 320.641(3). Id. The Department of Highway Safety and Motor Vehicles adopted the administrative law judge’s recommended order as its final order. Id. On appeal, Maserati contended that neither section 320.641’s 90-day notice period nor its fairness hearing was required because the 2017 program did not modify the dealers’ franchise agreement. Id. We agreed with the dealers’ argument, reasoning in pertinent part: For the purpose of section 320.641, the term “franchise agreement” is unambiguously defined as, a contract, franchise, new motor vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a [licensee] ......

...rather than the written contractual relationship, “that defines the parameters of the franchise agreement between the parties.” In so doing, the Department impermissibly rewrote the plain language of subsections 320.60 and 320.641. The term “franchise” in subsection 320.641(1)(a) refers to a contractual relationship, not a “broader, multi-faceted business relationship.” Id....