STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILTON DODGE CHRYSLER PLYMOUTH, ) INC. and CHRYSLER CORPORATION, )

)

Petitioners, )

)

vs. ) CASE NO. 91-3714

)

DON DAWSON JEEP EAGLE, INC. ) and DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 22, 1991, in Tallahassee, Florida.

APPEARANCES

For Petitioner, Milton Dodge Chrysler Plymouth, Inc.:

John L. Fiveash, Jr., Esquire

106 Rhodes Building

41 North Jefferson Street Pensacola, Florida 32501

For Petitioner, Chrysler Corporation:

Dean Bunch, Esquire

Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301

and

Edward H. Weeby, Esquire Office of General Counsel Chrysler Corporation 12000 Chrysler Drive

Detroit, Michigan 48288

For Respondent, Don Dawson Jeep Eagle, Inc.:

Daniel E. Myers, Esquire Walter E. Forehand, Esquire Myers & Forehand

402 North Office Plaza Drive Suite B

Tallahassee, Florida 32301

For Respondent, Department of Highway Safety and Motor Vehicles:

No Appearance STATEMENT OF THE ISSUES

Whether the application of the Petitioner, Chrysler Corporation to establish an additional Jeep-Eagle dealership, Petitioner Milton Dodge Chrysler Plymouth, Inc., in Milton, Santa Rosa County, Florida, should be granted because of inadequate representation in the community or territory?

PRELIMINARY STATEMENT

The Petitioner, Chrysler Corporation (hereinafter referred to as "Chrysler") gave notice to the Department of Highway Safety and Motor Vehicles (hereinafter referred to as the "Department") of its intention to establish an additional motor vehicle dealership for the sale of Jeep trucks and Eagle automobiles. The new dealership, Petitioner Milton Dodge Chrysler Plymouth, Inc. (hereinafter referred to as "Milton Dodge"), is to be located at 800 West Highway 90, west of the city of Milton, Santa Rosa County, Florida. Notice of intent to establish Milton Dodge was published in the May 3, 1991, Florida Administrative Weekly.

The Respondent, Don Dawson Jeep Eagle, Inc. (hereinafter referred to as the "Don Dawson") filed a Petition or Complaint Protesting Establishment of Dealership dated May 31, 1991, with the Department. Don Dawson protested the proposed new dealership pursuant to Section 320.642, Florida Statutes, and requested a formal administrative hearing. By letter dated June 13, 1991, the request for hearing was referred to the Division of Administrative Hearings.

On July 11, 1991, a Notice of Hearing and Initial Pre-Hearing Order was entered. Pursuant to this notice and order the formal hearing was scheduled to commence October 22, 1991, and the parties were ordered to pre-file the direct testimony of any expert witness they intended to call.

On October 3, 1991, Chrysler filed a Motion to Compel Production of Don Dawson's Expert Witness Testimony. Chrysler argued that it believed that Don Dawson intended on eliciting expert testimony from Donald F. Dawson, the only witness Don Dawson had indicated it intended to call and that Don Dawson had not pre-filed Mr. Dawson's direct testimony. Don Dawson filed a response to this motion indicating it did not intend on proffering any witness as an expert.

At the request of the undersigned, a motion hearing was conducted by telephone on October 14, 1991, to consider Chrysler's motion to compel.

Following this motion hearing an Order was entered denying the motion because the parties had already been ordered to file the direct testimony of all expert witnesses. Therefore, there was no need to issue a second order. Don Dawson

was informed, however, that opinion testimony concerning the possible financial impact on it's business of the proposed new dealership which it attempted to elicit from Mr. Dawson or any other witness not proffered and accepted as an expert would be considered expert testimony and would not be allowed if objected to. Don Dawson declined to offer Mr. Dawson as an expert or to file pre-filed testimony.

At the formal hearing the Petitioners presented the testimony of Deborah E. Morgan, an expert in dealer network analysis. Chrysler exhibits 1-3 were offered and admitted into evidence.

Don Dawson presented the testimony of Donald F. Dawson. Don Dawson also offered exhibits 1-5, 13, 15-21 and 23-34. All these exhibits were accepted into evidence.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Chrysler is a manufacturer of trucks and automobiles, including Jeep trucks and Eagle automobiles.

      
      

   2. Milton Dodge is a proposed dealer/operator of a proposed new Jeep-Eagle dealership. Milton Dodge currently sells Chrysler, Plymouth, Dodge and Dodge trucks.

      
      

   3. Don Dawson is an existing franchised Jeep-Eagle dealership located on

      U. S. 29, Pensacola, Escambia County, Florida.

      
      

   4. Don Dawson is located approximately 17.5 miles from the proposed Milton Dodge dealership location. Santa Rosa County, where the new dealership is to be located, has a population of less than 300,000 persons.

      
      

   5. All of the parties have standing to participate in this proceeding.

      
      

2. The Application for A New Dealership.

   
   

   1. Chrysler has sought a permit to establish an additional Jeep-Eagle dealership for the sale of Jeep trucks and Eagle automobiles in Milton, Santa Rosa County, Florida.

      
      

   2. Don Dawson filed a timely protest to Chrysler's application pursuant to Section 320.642, Florida Statutes.

      
      

3. The Community or Territory.

   
   

   1. The Milton Dodge proposed new dealership is to be located on U. S. 90, West of Milton, Santa Rosa County, Florida.

      
      

   2. Chrysler assigns its franchised dealerships a primary area of responsibility called a "sales locality." The sales locality of each dealer is specified in the dealer agreement between the dealer and Chrysler.

   3. Each sales locality consists of post office towns. A post office town is an area within which mail is delivered from a particular post office. Post office towns are not limited to political boundaries.

      
      

   4. The sales locality for Milton Dodge, the Milton sales locality, consists of the towns of Milton, Bagdad, and Harold, all of which are located in Santa Rosa County, Florida.

      
      

   5. To the west and southwest of the Milton sales locality is the Pensacola sales locality. The Pensacola sales locality consists of the towns of Molino, Cantonment, Gonzalez, Gulf Breeze, Lillian and Pensacola. All of the towns, except Lillian, Alabama, are located in Escambia County, Florida.

      
      

   6. Pursuant to its dealer agreement with Chrysler, Don Dawson is located in the Pensacola sales locality.

      
      

   7. To the east and southeast of the Milton sales locality is the Fort Walton Beach sales locality. This sales locality consists of the towns of Niceville, Shalimar, Destin, Mary Esther, Valparaiso and Fort Walton Beach, and Eglin Air Force Base, all of which are located in Okaloosa County, Florida.

      
      

   8. There is a Jeep-Eagle dealership, Lee Jeep Eagle, located in Fort Walton Beach.

      
      

   9. The sales locality assigned to a dealer is representative of the area in which the dealer is expected to have a competitive advantage over the same line-make dealers simply because of location.

      
      

   10. The Milton sales locality and the Pensacola sales locality are separate and distinct markets.

       
       

   11. The evidence proved, and the Petitioners and Don Dawson both agreed in their proposed recommended orders, that the relevant community or territory in this proceeding is the Milton sales locality.

       
       

4. Adequacy of Representation.

1. General.

   
   

   1. Once the community or territory has been identified, Section 320.642, Florida Statutes, requires a determination as to whether existing dealers have been providing "adequate representation" of the line-make of the new dealership.

      
      

   2. In order to determine whether there has been adequate representation in the Milton sales locality of Jeep trucks and Eagle automobiles, eleven factors set out in Section 320.642(2)(b), Florida Statutes, are to be considered.

      
      

   3. In order to determine whether existing dealers have been providing adequate representation, a reasonable standard of performance may be determined as a measure of proper performance. The standard(s) for comparison in this matter is described, infra, in section II.D. of this Recommended Order.

      
      

2. Section 320.642(2)(b)1, Florida Statutes; Impact on Existing Dealers.

   1. Only the possible impact on Don Dawson, the protesting dealer in this proceeding, may be considered in applying this factor.

      
      

   2. New vehicle transactions, including sales, servicing, parts' sales and financing and insurance, represent approximately 70% of Don Dawson's income.

      
      

   3. In 1990, Don Dawson sold new motor vehicles to persons whose addresses were within the Milton sales locality. In 1989, Don Dawson sold nine automobiles and trucks (5% of its total 178 sales) to customers whose addresses were within the Milton sales locality. In 1989, approximately 59% of Don Dawson's total sales were to persons whose addresses were within the Pensacola sales locality. During 1990, approximately 55% of Don Dawson's new motor vehicle sales were to persons whose addresses were within 20 miles of the proposed new dealership location.

      
      

   4. In 1989, Don Dawson had a gross profit per new vehicle of $1,322.00. Don Dawson lost $101,004.00 on the sale of 179 new vehicles.

      
      

   5. Don Dawson was profitable in 1990 ($13,102.00; gross profit per new vehicle of $1,503.00 on 195 new vehicles) and the first eight months of 1991.

      
      

   6. During 1990, Don Dawson paid a total of $75,000.00 to $80,000.00 to its equity owners.

      
      

   7. Although the evidence supports a conclusion that it is possible that Don Dawson may suffer some loss in sales of Jeep trucks and/or Eagle automobiles, the weight of the evidence failed to prove what the total or general financial impact of the proposed new dealership might be on Don Dawson.

      
      

   8. Based upon the findings of fact, infra, concerning inadequate market penetration in the Milton sales locality, it is likely that the addition of the proposed new dealership will not negatively impact on Don Dawson's sales opportunities.

      
      

3. Section 320.642(2)(b)2, Florida Statutes; Investment and Obligations of Existing Dealers.

   
   

   1. Don Dawson has a considerable investment in tools, parts and improvements to the property it leases from Chrysler.

      
      

   2. The evidence failed to prove that Don Dawson's investment is inadequate.

      
      

4. Section 320.642(2)(b)3, Florida Statutes; Reasonably Expected Market Penetration for the Community or Territory.

   
   

   1. In analyzing the proper performance in a market, it is appropriate to compare the market share or market penetration of vehicle registrations within a target market with the share of vehicle registrations in an appropriate comparison market.

      
      

   2. It is appropriate to use a "segmented" approach in comparing markets. For example, in order to determine Jeep truck (or Eagle automobiles) market share, the total truck industry (or similar automobiles to those manufactured by Eagle) are compared.

   3. Jeep and Eagle market penetration in the nation as a whole and in Florida sales localities is represented by national averages and Florida sales locality averages. National markets and markets in the Florida sales localities include adequately and inadequately represented Jeep and Eagle represented markets. Therefore, these averages are very conservative.

      
      

   4. In light of the fact that the averages are the conservative it is reasonable to use the higher of the national or the Florida sales localities averages as a starting point. For Jeep, the higher standard is the national average penetration. For Eagle, the higher standard is the Florida sales localities average penetration.

      
      

   5. Florida penetration is based upon all of Florida except four small towns which are included in Alabama sales localities. It also includes one town in Alabama included in the Pensacola sales locality.

      
      

   6. After determining the national and Florida averages, it is appropriate to compare how other areas lived up to these standards. Of 68 sales localities in Florida, 32 performed above national averages for Jeep. Thirty of those that performed above national average and all that are above the Florida average (12 sales localities) have Jeep representation. A similar result is reached when Eagle penetration is reviewed.

      
      

   7. A consideration of demographics and lifestyle characteristics, based upon a comparison of the relative popularity of various vehicle types in the Milton sales locality, independent of brand type, compared to the relative popularity of the same vehicle types in Florida and nationally, confirms the reasonableness of the use of Florida and national average penetration rates as a standard.

      
      

   8. A reasonable market share expectation for Jeep for the Milton sales locality is 4.74%. A reasonable market share expectation for Eagle for the Milton sales locality is 0.95%. As is discussed, infra, Jeep-Eagle penetration in the Milton sales locality has been below these expected penetration rates indicating inadequate representation in the community or territory.

      
      

   9. The proposed new dealership location is part of a geographic area designated by Chrysler as the New Orleans Zone. This zone consists of part of the panhandle area of Florida (the northwest portion of Florida), Alabama, Mississippi and Louisiana.

      
      

   10. Like Florida and the nation as a whole, there are areas within the New Orleans Zone that do not have Jeep-Eagle dealers. Unlike Florida, where there are only 38 sales localities and 20 markets without a Jeep-Eagle dealer, there are 111 sales localities and 47 markets in the New Orleans Zone where there is no Jeep-Eagle dealer.

       
       

   11. Each Jeep-Eagle dealership is in effect assigned a minimum sales responsibility review. This review is based upon a comparison of a dealer's sales with average sales in the zone the dealer is assigned to. The weight of the evidence, however, failed to prove that dealers who meet their minimum sales responsibility are necessarily providing adequate representation.

       
       

   12. Although a comparison of sales performance of each dealer in the New Orleans Zone is made by Chrysler with the average performance within the zone as a whole, and the proposed new dealership location is within the New Orleans Zone, the weight of the evidence failed to prove that the penetration rate in

       the New Orleans Zone is the appropriate standard for measurement of adequate representation.

       
       

   13. The New Orleans Zone is an area established for administrative convenience. The New Orleans Zone was not established for marketing comparisons. The evidence did not prove that, other than geographic proximity, the zone is comparable.

       
       

5. Section 320.642(2)(b)4, Florida Statutes; Actions of the Licensee Denying Existing Dealers

   Opportunity for Reasonable Growth, Market Expansion or Relocation.

   
   

   1. The weight of the evidence failed to prove that Chrysler has taken any action to deny Don Dawson or any other exiting dealer opportunity for reasonable growth, market expansion or relocation.

      
      

   2. The site that Don Dawson is located at is controlled by Chrysler. Don Dawson must negotiate a lease of its facilities from Chrysler and must get approval from Chrysler to add additional vehicle types. Don Dawson has had difficulty at times getting certain vehicle types from Chrysler. The weight of the evidence, however, failed to prove that any of these facts constituted any action by Chrysler to prevent Don Dawson from growing or expanding its market, or that these facts relate to any request of Don Dawson to relocate.

      
      

6. Section 320.642(2)(b)5, Florida Statutes; Attempts by the Licensee to Coerce Existing Dealers into Consenting.

   
   

   1. The weight of the evidence failed to prove that this factor is relevant in this proceeding.

      
      

7. Section 320.642(2)(b)6, Florida Statutes; Geographic Factors.

   
   

   1. It is approximately 17.5 miles from the proposed Milton Dodge dealership location and Don Dawson.

      
      

   2. It takes approximately 29 minutes to travel by automobile from Milton Dodge to Don Dawson.

      
      

   3. It takes approximately 51 minutes to drive the 40.4 miles from Milton Dodge to Lee Jeep Eagle in Fort Walton Beach.

      
      

   4. Jeep Eagle buyers in Pensacola and Fort Walton Beach must travel fairly extensive distances to comparison shop.

      
      

   5. Evidence concerning relevant geographic factors support approval of the new Milton Dodge dealership.

      
      

8. Section 320.642(2)(c)7, Florida Statutes; Benefits to Consumers.

1. Consumers in the Milton sales locality will benefit because they will not have to travel to Pensacola or Fort Walton Beach if they are interested in Jeep-Eagle vehicles.

2. It will be easier for consumers in Pensacola to comparison shop.

   
   

3. There will be some slight benefit to consumers in the Milton sales locality because Jeep trucks and Eagle automobiles will be more readily accessible to them if a new dealership is located in the proposed new location.

   
   

4. The possible benefits to consumers supports approval of the proposed new dealership.

   
   

   1. Section 320.642(2)(b)8, Florida Statutes; Compliance with Dealer Agreements.

      
      

5. The weight of the evidence failed to prove that any existing dealers are not in full compliance with the dealer agreements with Chrysler.

   
   

   1. Section 320.642(2)(b)9, Florida Statutes; Adequate Inter- and Intra-Brand Competition.

      
      

6. There is a lack of intra-brand competition in the Milton sales locality. This contributes to inadequate representation for Jeep-Eagle vehicles in the Milton sales locality.

   
   

7. The negative impact of the lack of proximity of a Jeep-Eagle dealer to the Milton sales locality on representation is evidenced, in part, by a comparison of market penetration in Milton compared with market penetration in Pensacola, where a dealer is located.

   
   

8. Existing Jeep-Eagle dealers are not providing adequate intra-brand competition in the Milton sales locality.

   
   

9. Because of high population growth in Santa Rosa County and high inter- brand competition in the Milton sales locality, representation of Jeep-Eagle is inadequate based upon inter- and intra-brand competition.

   
   

10. Adding a Jeep-Eagle dealership to the Milton sales locality is a reasonable solution to the inadequate representation in the Milton sales locality when the performance of similar line-makes with dealerships located in the Milton sales locality are compared to national and Florida average penetration rates. Line-makes not represented in the Milton sales locality have low penetration rates.

    
    

    1. Section 320.642(2)(b)10, Florida Statutes; Economic and Marketing Conditions.

       
       

11. On a nationwide basis there have been significant declines of approximately 21% in the sales of Jeep trucks and Eagle automobiles between 1989 and 1990.

    
    

12. Looking at the trend in sales of Jeep and Eagle vehicles over a longer period of time, however, indicates the very cyclical nature of vehicle sales.

    
    

13. Although the current condition of vehicle sales and the economy as a whole gives reason to consider the new dealership with some skepticism, the weight of the evidence failed to prove that the recent trend in the economy or vehicle sales should be determinative in this case.

14. Pensacola, Milton and the surrounding areas have experienced a significant growth between 1980 and 1990.

    
    

15. Santa Rosa County, where Milton is located, is projected through 1995 to experience substantial growth in total population, population 16 (the driving age) and over, and in household trends.

    
    

16. Although much of the projected growth will occur along the Gulf of Mexico coast, as opposed to around Milton, Santa Rosa, including Milton, should continue to be an attractive area for vehicle sales. This finding is based upon the data concerning income of the population and the favorable economic conditions existing and forecasted for the area (see Petitioner's proposed finding of fact 73).

    
    

    1. Section 320.642(2)(b)11, Florida Statutes; Volume of Registrations By the Existing Dealer in the Community or Territory of the Proposed Dealer.

       
       

17. The penetration by Jeep in the Milton sales locality during the period 1987-1990 was significantly less that the penetration which reasonably could be expected (see finding of fact 39) based upon national and Florida penetration rates.

    
    

18. Although Eagle performed a little better in more recent years than Jeep, the penetration by Eagle during the period 1987-1990 was also significantly less that the penetration which reasonably could be expected based (see finding of fact 39) upon national and Florida penetration rates.

    
    

    1. Conclusion.

    
    

19. Based upon a balanced consideration of the factors of Section 320.642(2)(b), Florida Statutes, the proposed new Jeep-Eagle dealership should be approved.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

21. Section 320.642, Florida Statutes, governs whether Chrysler's request to establish a new Jeep-Eagle dealership in Milton, Florida, should be approved. Pursuant to Section 320.642(2)(a), Florida Statutes, Chrysler was required to prove the following:

    
    

    . . . that the existing franchised dealer or dealers who register new motor vehicle retail sales or retail leases of the same line-make in the community or territory of the proposed dealership are not providing adequate representation of such line-make motor vehicles in such community or territory. . . .

    
    

    The burden of proving the forgoing standard was on Chrysler. Section 320.642(2)(a), Florida Statutes.

22. Although the terms "community or territory" are not defined, the parties agreed that the Milton sales locality is the relevant community or territory in this matter. The evidence supports this conclusion. See Larry Dimmitt Cadillac, Inc. v. Seacrest Cadillac, Inc., 558 So.2d 136 (Fla. 1st DCA 1990); and Bill Kelley Chevrolet, Inc. v. Calvin, 308 So.2d 199 (Fla. 1st DCA 1974), cert. denied, 336 So.2d 1180 (1976). Additionally, the Petitioners presented proof concerning a community or territory consisting of part of the Pensacola and Milton sales localities. Although the evidence supported the Petitioners' arguments concerning a Pensacola/Milton community or territory and identifiable plots within this area, it was not necessary to address these arguments in light of the conclusion that the Milton sales locality is the appropriate community or territory.

    
    

23. Section 320.642(2)(b), Florida Statutes, requires a consideration of eleven factors in determining whether existing dealers are providing adequate representation in the community or territory. Each of the relevant factors must be considered and the evidence concerning each relevant factor must be weighed and considered as a whole. No one factor is necessarily conclusive.

    
    

24. The Petitioners presented extensive evidence concerning the factors which are relevant in this case. Based upon consideration of all of the relevant factors, it is concluded that the evidence presented by the Petitioners supports a conclusion that there is sufficient inadequate representation in the Milton sales locality to justify approval of the proposed new dealership, Milton Dodge.

    
    

25. As pointed out by Don Dawson in its proposed recommended order, the most significant factors in this case were the impact of the proposed new dealer on the existing dealer (Section 320.642(2)(b)1, Florida Statutes), and the reasonably expected market penetration in the Milton sales locality (Section 320.642(2)(b)3, Florida Statutes). Most the other factors were, although relevant, of less significance.

    
    

26. Don Dawson has argued that the impact on it if the new dealership is approved outweighs any potential benefit to Chrysler or the public which may result from establishing the new dealership. The evidence failed to support this argument. The little evidence presented concerning the possible impact on Don Dawson was insufficient to prove that it will be substantially impacted. The ample evidence concerning the expected benefit to Chrysler presented by the Petitioners supports a conclusion that the benefit to Chrysler may be substantial. The only evidence presented by Don Dawson to counter the Petitioners' evidence consisted primarily of cross-examination of the Petitioner's expert witness and other speculative and hearsay evidence. The evidence presented by Don Dawson was not sufficient to refute the substantial case presented by the Petitioners.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order approving the application to

establish a new Jeep-Eagle dealership on 800 West Highway 90, Milton, Santa Rosa County, Florida.

DONE and ENTERED this 18th day of December, 1991, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1991.

APPENDIX TO RECOMMENDED ORDER

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Chrysler's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. 2 and 6.

2. 3 and 6.

3 3-5 and 7.

1. Conclusions of law. See 19-21.

2. Conclusions of law.

3. Hereby accepted.

7 9-10.

8 12-13.

9 11 and 14.

1. Cumulative.

2. 16 and hereby accepted.

12-14 Cumulative.

15 24 and hereby accepted.

16-18 Hereby accepted.

19-22 Although these findings of fact are correct, it is unnecessary to consider the alternative community or territory of the Milton/Pensacola area identified by Chrysler.

23 See 18. Don Dawson did not have the burden of proof.

24 19.

25 See 47, 53-54 and 57.

1. See 47.

2. Hereby accepted.

3. See 57.

4. No a finding of fact.

30 32-33.

31 Don Dawson did not have the burden of proof. Don Dawson did provide some proof concerning this issue.

32 32-34.

33 35.

34 37.

35 37 and hereby accepted.

36-38 Subordinate facts.

39-41 See 38.

42 39.

43-44 Not necessary. See proposed findings of fact 19-22.

45-46 39 and hereby accepted.

1. Not necessary. See proposed findings of fact 19-22.

2. Subordinate fact.

3. See 69.

50 69.

51-53 Cumulative facts.

1. Not necessary. See proposed findings of fact 19-22.

2. Cumulative facts.

3. Not necessary. See proposed findings of fact 19-22.

4. Hereby accepted.

58 See 41-44.

59 43-44.

60 41.

61 Hereby accepted.

62 See 41-44.

63-64 Hereby accepted.

65 See section K.

66 61.

67 Hereby accepted.

68 See 61, 66-67.

69 66-67.

70 67.

71-72 68 and hereby accepted.

1. Cumulative facts.

2. 66 and hereby accepted.

75-76 59 and hereby accepted.

77 58 and 60.

78-79 Too speculative.

80 48-49.

81 51.

82 61.

1. See 58-62 and hereby accepted.

2. See 59 and hereby accepted.

85 62.

86 Hereby accepted.

87 See 45-46.

88 22.

89 26.

90 See 28.

91 29.

92-93 Hereby accepted.

1. Cumulative facts.

2. See 35.

96 See 30-31.

97 Not relevant.

Don Dawson's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 9.

2 11-12.

3 Hereby accepted.

4 17.

5* 24.

6* 48.

6* See 18.

5* 32.

6* 33 and hereby accepted.

7 40.

1. See 42.

2. Hereby accepted.

3. Not supported by the weight of the evidence. See 42- 44.

4. Not relevant.

5. Not supported by the weight of the evidence. Based on hearsay.

6. Not relevant. See 42-44.

7. Not relevant.

15 63.

16 Not relevant. At issue is the penetration rate in the Milton sales locality.

17 25-26.

18 27.

19 See 46.

20 23.

21 30.

22 Not relevant. Nor did the evidence prove why the offer was withdrawn.

23 2.

24-26 Not supported by the weight of the evidence.

27 See 25-26. The last sentence is not supported by the weight of the evidence.

* These duplicative numbered findings of fact all appear on page 4 of Don Dawson's proposed recommended order.e

COPIES FURNISHED:

Dean Bunch, Esquire

Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301

Edward H. Weeby, Esquire Office of General Counsel Chrysler Corporation 12000 Chrysler Drive

Detroit, Michigan 48288

John L. Fiveash, Jr., Esquire Rhodes Building, Suite 106

41 North Jefferson Street Pensacola, Florida 32501-5643

Daniel E. Myers, Esquire Walter E. Forehand, Esquire Myers & Forehand

402 North Office Plaza Drive Suite B

Tallahassee, Florida 32301

Michael J. Alderman Assistant General Counsel

Department of Highway Safety and Motor Vehicles

Room A432

Neil Kirkman Building Tallahassee, Florida 32399-0500

Charles J. Brantley, Director Division of Motor Vehicles

Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-003714

Orders for Case No: 91-003714