49-1617. PROTESTS — HEARINGS — COSTS. (1) Within twenty (20) days of receiving notice or within twenty (20) days after the end of any appeal procedure provided by a manufacturer, a dealer, in respect to termination, cancellation or nonrenewal of a franchise, or establishing or relocating a dealership, or a designated family member for a refusal to honor the succession of the dealership, may file with the department to protest termination or refusal to honor the succession. When a protest is filed, the department shall inform the manufacturer that a timely protest has been filed and the manufacturer shall have twenty (20) days to respond to the protest. The manufacturer shall not terminate, establish a new or relocate a dealership, or discontinue the existing franchise until the department has held a hearing, nor subsequently, if the department has determined that there is not good cause for permitting the termination, addition, relocation or succession, or that the manufacturer is not acting in good faith.

(2) The department shall select a hearing examiner to conduct a hearing and render proposed findings of fact. In determining whether good cause for termination exists the proposed findings of fact shall be conclusive unless clearly erroneous and unsupported by the record. In determining whether good cause for the refusal to honor the succession exists, the manufacturer has the burden of proving that the successor is a person who is not of good moral character or does not meet the manufacturer’s existing and reasonable standards and, considering the volume of sales and service of the dealership, uniformly applied minimum business experience standards in the consumer consumption channel. In determining whether good cause had been established for not entering into or relocating an additional franchise for the same line make, the department shall take into consideration the existing circumstances including:

(a) Permanency of the investment of both the existing and proposed franchises;

(b) Growth or decline in population and new car registrations in the consumer consumption area;

(c) Effect on the consuming public in the relevant market area;

(d) Whether it is injurious or beneficial to the public welfare for an additional franchise to be established;

(e) Whether the franchises for the same line make in that relevant consumption area are providing adequate competition and convenient customer care for the vehicles of the line make in the market area, which shall include the adequacy of vehicle sales and service facilities, equipment, supply of vehicle parts, and qualified service personnel;

(f) Whether the establishment of an additional franchise would increase competition and be in the public interest.

(3) The department shall render its final determination within one hundred twenty (120) days after the manufacturer responds to the protest. Unless waived by the parties, failure to do so shall be deemed the equivalent of a determination that good cause does exist for termination, addition, relocation, or nonhonor of the succession, unless the delay is caused by acts of the manufacturer.

(4) All costs of the department, including the cost of the hearing examiner and the cost of preparing the record, shall be borne equally by the parties. The department may in its discretion award costs to the prevailing party in any hearing held pursuant to this chapter.

History:

[49-1617, added 1988, ch. 265, sec. 390, p. 779.]