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Click here for the full text of this decision FACTS:Appellant, Jack Douglas, sued the appellee, Petroleum Wholesale Inc., for violation of the Petroleum Marketing Practices Act by terminating Douglas’s use of the Diamond Shamrock trademark, signage, branded motor fuel and credit card facilities. Following a bench trial on the merits, the trial court entered a take-nothing judgment in favor of PWI, concluding that the relationship between Douglas and PWI was not a franchise within the meaning of the PMPA. HOLDING:Affirmed. Under the PMPA, consignments are protected only for distributors who take motor fuels on consignment from refiners; retailers, by definition, must purchase motor fuel in order to gain PMPA protection. Thus, in order to recover as a PMPA franchisee, Douglas must show that he is a “retailer” who purchased motor fuel for sale to the general public. Douglas contends that he is a retailer under the PMPA because he meets the test of having “significant indicia of entrepreneurial responsibility or economic risk in the operation of the motor fuel sales at his store.” Douglas cites Johnson v. Mobil Oil Corp., 553 F. Supp. 195 (S.D.N.Y 1982); Farm Stores Inc. v. Texaco Inc., 763 F.2d 1335 (11th Cir. 1985).; Miller v. W.H. Bristow Inc., 739 F. Supp. 1044 (D.S.C. 1990); Sigmon v. Widenhouse Service Inc., 638 F. Supp. 808 (M.D.N.C. 1986); and Automatic Comfort Corp. v. D & R Service Inc., 620 F. Supp. 1349 (D.Conn. 1985), as examples of courts’ application of the entrepreneurial-responsibility test to determine the issue of whether a gas station operator is a retailer under the PMPA. The Johnson court was the first to employ a broader analysis that looks to the totality of the business relationship to determine whether a gas station operator fell within the protection of the PMPA. After recognizing that “the”starting point’ must be the language of the statute itself,” citing Checkrite Petroleum Inc. v. Amoco Oil Co., 678 F.2d 5 (2nd Cir. 1982), and concluding that the plaintiff did not purchase the gasoline for resale and did not qualify as a franchisee, the court went on to analyze the facts to determine whether there were sufficient indicia of entrepreneurial responsibility and risk for the plaintiff to be an independent businessman and, thus, to qualify as a franchisee. The court concluded that, although there were some indicia of independent status, there were not enough to find that the plaintiff was a franchisee. By engaging in its analysis of entrepreneurial responsibility and risk, the Johnson court was not in step with the Checkrite Petroleum court. Not only did the court in Checkrite Petroleum state that the language of the statute was the starting point and was conclusive, absent clearly expressed legislative intent otherwise; it also stated, “Strict construction is particularly appropriate where, as here, the statute in question is in derogation of common law rights.” Other courts have often followed Johnson rather than Checkrite Petroleum. They generally look first to the statutory definitions to determine whether the party seeking protection meets the definition of retailer or distributor. Upon a determination that it does not, they go on to analyze the relationship of the parties to determine whether the party seeking protection meets the entrepreneurial responsibility and risk test. Invariably, it does not. In light of the clear language of the PMPA, the court declines to take this dual approach. The court considers the indicia of entrepreneurial responsibility to be relevant only to the extent that it establishes that a gas station operator purchases motor fuel for resale to the public. An operator who purchases fuel necessarily undertakes the risks involved in the resale of that fuel. In the present case, the evidence established that Douglas took the motor fuel on consignment and that PWI owned the fuel until it was purchased by the consumer. Because Douglas did not purchase fuel from PWI, he does not meet the statutory definition of retailer and does not come under the protection of the PMPA. OPINION:Nuchia, J.; Nuchia, Jennings and Higley, JJ.

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