STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CLASSIC NISSAN, INC.,
Petitioner,
vs.
NISSAN NORTH AMERICA, INC.,
Respondent.
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) Case No. 05-2426
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RECOMMENDED ORDER
On August 7 through 11, 14 through 18, and 21 through 23, 2006, a formal administrative hearing in this case was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: W. Douglas Moody, Jr., Esquire
Robert C. Byerts, Esquire Myers & Fuller, P.A.
2822 Remington Green Circle Post Office Box 14497 Tallahassee, Florida 32308
William R. Pfeiffer, Esquire
The Law Offices of William R. Pfeiffer 2822 Remington Green Circle
Post Office Box 10528 Tallahassee, Florida 32302
Frank A. Hamner, Esquire Frank A. Hamner, P.A.
1011 North Wymore Road Orlando, Florida 32789
For Respondent: Dean Bunch, Esquire
Sutherland, Asbill & Brennan, LLP
3600 Maclay Boulevard, South, Suite 202
Tallahassee, Florida 32312-1267
Steven A. McKelvey, Jr., Esquire
S. Keith Hutto, Esquire
M. Ronald McMahan, Jr., Esquire
Nelson, Mullins, Riley & Scarborough, LLP 1320 Main Street, 17th Floor
Post Office Box 11070 Columbia, South Carolina 29201
Cristian S. Torres, Esquire Nissan North America, Inc. Legal Department
333 Commerce Street, 7th Floor Nashville, Tennessee 37201
STATEMENT OF THE ISSUES
Pursuant to Subsection 320.641(3), Florida Statutes (2006),1 the issues in the case are whether Nissan North America, Inc.'s (Respondent), proposed termination of the dealer agreement with Classic Nissan, Inc. (Petitioner), was clearly permitted by the franchise agreement, undertaken in good faith, undertaken for good cause, and based on material and substantial breach of the dealer agreement; and whether the grounds relied upon for termination have been applied in a uniform and consistent
manner.
PRELIMINARY STATEMENT
By Notice of Intent dated April 6, 2005, the Respondent advised the Petitioner that the dealer agreement entered into by the parties was being terminated. The Petitioner disputed the
termination and filed a Petition for Hearing with the Florida Department of Highway Safety and Motor Vehicles, which forwarded the Petition to the Division of Administrative Hearings. The final hearing was scheduled and then re-scheduled several times upon various motions, finally commencing on August 7, 2006.
At the hearing, the Petitioner presented the testimony of Darren Hutchinson, John Sekula, Scott O’Brien, and Ernest Manuel. Petitioner's Exhibits numbered 15, 26, 27, 47, 58, 79,
80, 100, 102, 104, 107, 117, 126, 129 through 132, 136, 159, 170
through 176, 180, 183 through 188, 193, 195, 214, 217 through
248, 359, 368, 369, 381, 383, 385, 388, 391, 398, 400, 404, 406,
411 through 413, 475, 478, 480, 483, and 488 were admitted into evidence.
The Respondent presented the testimony of Timothy Pierson, Andrew Delbrueck, William Hayes, Douglas Kirchoff, Dawn Mitchell, Joseph Stancato, Herbert Walter, Patrick Doody, and Sharif Farhat. Respondent's Exhibits numbered 1 through 6, 9,
13 through 22, 24 through 33, 36, 38 through 40, 44, 46, 48, 49,
51 through 53, 55 through 57, 59 through 70, 79 through 84, 87, 95 through 99, 101 through 108, 120, 122 through 124, 129, 130, 134, 140, 141, 143 through 148 (including 145A1), 150, and 151 were admitted into evidence.
The 20-volume Transcript of the hearing was filed on September 15, 2006. Both parties filed Proposed Recommended
Orders on October 16, 2006, that have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Pursuant to definitions set forth at Section 320.60, Florida Statutes, the Petitioner is a "motor vehicle dealer" and the Respondent is a "licensee."
In 1997, the Petitioner and the Respondent entered into an agreement whereby the Petitioner took control of an already- existing Nissan dealership located in Orlando, Florida.
In 1999, the Petitioner and the Respondent entered into a Dealer Sales and Service Agreement (Dealer Agreement), which is a "franchise agreement" as defined at Subsection 320.60(1), Florida Statutes. The Respondent's proposed termination of the 1999 Dealer Agreement is at issue in this proceeding.
At all times material to this case, the dealership has been owned by Classic Holding Company. Classic Holding Company is owned by four members of the Holler family. Christopher A. Holler is identified in the Dealer Agreement as the principal owner and the executive manager of the dealership. The family owns a number of other dealerships, representing a variety of auto manufacturers.
The Respondent does not sell cars at retail to individual purchasers. Standard Provision Section 3.A. of the Dealer Agreement requires that the Petitioner "actively and
effectively promote" vehicle sales to individual retail purchasers.
Standard Provision Section 3.B. of the Dealer Agreement permits the Respondent to develop and select the criteria by which sales are measured, as long as the measurement criteria is reasonable.
Standard Provision Section 12.B.1.a. of the Dealer Agreement permits the Respondent to terminate a dealership when a dealer fails to substantially meet its vehicle sales obligation.
The Dealer Agreement includes examples of various criteria that may be used to measure dealer performance. Specifically included among the examples is the calculation of a dealer's "sales penetration" within a defined geographic "Primary Market Area" (PMA) around the dealership as compared to other local and regional dealers.
Sales penetration is calculated by dividing a dealer's total new vehicle sales by the number of competitive new vehicles registered in the dealer’s PMA.
Data related to vehicle registration was compiled by
R. L. Polk (Polk), a nationally recognized organization commonly relied upon in the auto industry for such information. There was no evidence offered to suggest the Polk data was incorrect.
The dealer's sales penetration is compared to Nissan's regional sales penetration to determine the dealer's sales performance as measured against other Nissan dealer's in the region. A dealer performing at 100 percent of the regional average is performing at an "average" level. Otherwise stated, an average dealer is performing at a "C" level.
The use of sales penetration calculations as a measurement of dealer performance is common in the automotive industry.
The Respondent has used sales penetration as a measurement of dealer sales performance for more than 20 years.
The Respondent's use of sales penetration as a measurement of dealer performance was reasonable or was permitted by the specific terms of the Dealer Agreement.
The Respondent's use of the sales penetration measurements was widely communicated to dealers, who were advised on a routine basis as to the performance of their dealerships compared to local dealers and on a regional basis.
The Petitioner knew, or should have known, that sales penetration was being used to measure the Petitioner's sales performance.
There was no credible evidence presented at the hearing that the Respondent calculated sales penetration in
order to disadvantage the Petitioner relative to other Nissan dealers in the region.
At the hearing, the Petitioner suggested alternative standards by which sales performance should be reviewed, including consideration of total sales volume. The use of sales volume to measure retail effectiveness would penalize dealerships in smaller markets and fail to reflect the market opportunity available to each dealer.
There was no credible evidence presented at the hearing that total sales volume more accurately measured the Petitioner's sales performance than did sales penetration.
The Petitioner suggested that the use of sales penetration to substantiate the proposed termination of the Dealer Agreement at issue in this case was unreasonable and unfair because approximately half of Nissan's dealerships will be performing below 100 percent of the regional average at any given time, yet the Petitioner has not proposed termination of dealership agreements with half of its dealer network; however, the proposed termination at issue in this case is not based merely on the Petitioner's sales penetration.
In 2002, the Petitioner's sales penetration was 110.5 percent, well above the regional average. At that time, the Respondent was preparing to introduce a number of new vehicles to the market. Some of the new vehicles were revisions of
previous models, while others were intended to compete with products against which Nissan had not previously competed.
Nissan representatives believed that the new models would substantially expand sales opportunities for its dealerships, and they encouraged their dealer network to prepare for the new environment. Some dealers responded by increasing staff levels and modernizing, or constructing new facilities. The Petitioner failed to take any substantive action to prepare for the new model lineup.
Beginning in 2003, and continuing throughout the relevant period of this proceeding, the Petitioner's regional sales penetration went into decline. From 2002 to 2003, the Petitioner's annualized sales penetration fell more than
30 points to 85.13 in 2003. The Petitioner's sales penetration for 2004 was 65.08 percent. The Petitioner's sales penetration for the first quarter of 2005 was 61.78 percent.
Following the introduction of the new models and during the relevant period of this proceeding, regional Nissan sales increased by about 40 percent. By 2004, the average Nissan dealer in the Petitioner's region had a sales penetration of 108.8 percent of the regional average. Through the first quarter of 2005, the average dealer in the region had a sales penetration of 108.6 percent of the regional average.
Compared to all other Florida Nissan dealers during the relevant period of this proceeding, the Petitioner was ranked, at its best, 54th of the 57 Florida Nissan dealerships and was ranked lowest in the state by January 2005.
Every Florida Nissan dealership, other than the Petitioner, sold more new cars in 2004 than in 2002. The Petitioner sold 200 fewer vehicles in 2004 than it had two years earlier.
The three other Orlando-area Nissan dealers experienced significant sales growth at the same time the Petitioner's performance declined.
The Petitioner has suggested that the Respondent failed to provide the information to appropriate management of the dealership. The Dealer Agreement indicated that Christopher
A. Holler was the executive manager of the dealership; however, his address was located in Winter Park, Florida, and he did not maintain an office in the dealership.
The Respondent's representatives most often met with managers at the dealership, who testified that they communicated with Mr. Holler. On several occasions as set forth herein, Nissan representatives met with Mr. Holler for discussions and corresponded with him.
There was no credible evidence presented at the hearing that the Petitioner was unaware that its sales
penetration results were declining or that the Petitioner was unaware that the Respondent was concerned with the severity of the decline.
The Respondent communicated with the Petitioner on a routine basis as it did with all dealers. As the Petitioner's sales performance declined, the Respondent communicated the monthly sales report information to the Petitioner, and the topic of declining sales was the subject of a continuing series of discussions between the parties.
In February 2003, Tim Pierson, the Respondent's district operations manager (DOM), met with the Petitioner's on- site manager, John Sekula, and discussed the dealership's declining sales penetration. Mr. Sekula was subsequently transferred by the ownership group to another auto manufacturer's dealership.
In August 2003, Mr. Pierson met with the Petitioner's new manager, Darren Hutchinson, as well as with a representative from the ownership group, to discuss the continuing decline in sales penetration, as well as an alleged undercapitalization of the dealership and the lack of an on-site executive manager with authority to control dealership operations.
On October 1, 2003, the Respondent issued a Notice of Default (NOD) charging that the Petitioner was in default of the Dealer Agreement for the failure to "retain a qualified
executive manager" and insufficient capitalization of the dealership.
In December 2003, Mr. Pierson met with Christopher A. Holler to discuss the dealership's problems.
By the time of the meeting, Mr. Hutchinson had been designated as the executive manager, although Mr. Hutchinson's decision-making authority does not appear to have extended to financial operations.
During that meeting, based on the Petitioner's failure to meet the capitalization requirements and respond to the deterioration in sales, Mr. Pierson inquired as to whether the Petitioner was interested in selling the dealership, but
Mr. Pierson testified without contradiction that Mr. Holler responded "no." Mr. Hutchinson explained at the hearing that he asked the question because there was little apparent effort being made to address the deficiencies at the dealership, and he was attempting to ascertain the Petitioner's intentions.
Mr. Hutchinson was directed to prepare a plan to address the Petitioner's customer service rating, which had fallen to the lowest in the area.
Based on an apparent belief that the ownership group was going to remedy the Respondent's concerns about capitalization, the Respondent extended the compliance deadline
set forth in the NOD, but the extended deadline passed without any alteration of the dealership's capitalization.
A letter to the Respondent dated March 25, 2004, allegedly from Mr. Holler, noted that sales and customer service scores had improved; however, there was no credible evidence presented during the hearing to support the claimed improvement in either sales or customer service. The letter also stated that the capitalization of the dealership would be increased in April 2004 and that new vehicle orders were being reduced.
On March 19, 2004, Mr. Pierson spoke with Mr. Holler and believed, based on the conversation, that a meeting would be scheduled to discuss the sales and capitalization issues. In anticipation of the meeting, Pierson sent the sales penetration reports directly to Mr. Holler, but the meeting did not occur. There was no additional capital placed into the dealership during April 2004.
In April 2004, Andy Delbrueck, a new DOM for the area, met with Mr. Hutchinson to discuss the continuing decline in sales penetration through the end of March 2004. Other dealers in the area were experiencing increased sales at this time, but the Petitioner's regional sales penetration continued to decline and was below the region for almost all Nissan models.
Mr. Hutchinson advised that he was hiring additional staff and had sufficient advertising funds to return the regional sales penetration averages by June.
In early May 2004, Mr. Delbrueck and a Nissan vice president, Patrick Doody, sent a letter about the Petitioner's declining sales performance to Mr. Holler and requested that the Petitioner prepare a plan to address the problem.
On May 18, 2004, Mr. Delbrueck again met with
Mr. Hutchinson and discussed the decline in sales performance and customer service scores, as well as the issue of the dealership's undercapitalization.
A May 25, 2004, letter to the Respondent, allegedly from Mr. Holler, noted that the dealership's sales penetration had improved, that additional staff had been hired, and that the Petitioner anticipated reaching or exceeding the regional sales penetration average by the end of the third quarter of 2004. The Petitioner never reached regional sales penetration averages following this letter, and, at the time it was written, there had been no material improvement in the dealership's sales penetration.
On June 17, 2004, Mr. Delbrueck met with Mr. Holler to discuss the continuing decline in the Petitioner's sales performance. Mr. Delbrueck believed, based on the meeting, that Mr. Holler was aware of the problem and would make the changes
necessary to improve sales, including employing additional sales staff.
On July 7, 2004, the Respondent issued an Amended NOD, citing the continuing decline in the Petitioner's sales performance as grounds for the default, in addition to the previous concerns related to capitalization that were identified in the earlier NOD. The Amended NOD established a deadline of November 29, 2004, by which time the cited deficiencies were to be remedied.
One day later, Mr. Delbrueck met with Mr. Hutchinson, discussed the Amended NOD, and made various suggestions as to how the Petitioner could improve the dealership's sales, including marketing and staffing changes. Mr. Delbrueck also offered to send in a trained Nissan representative, William Hayes, to review dealership operations and provide suggestions to improve conditions at the facility and ultimately to increase car sales. Mr. Hutchinson accepted the offer.
A letter to the Respondent dated July 23, 2004, allegedly from Christopher A. Holler, noted that staffing levels had increased as had sales for the month of July; however, there was no credible evidence presented at the hearing that any substantive increase in staffing had occurred or that the Petitioner's sales penetration had increased. The letter
contained no specific plan for remedying the problems cited in the Amended NOD.
In late July 2004, a Nissan training representative, William Hayes, performed a focused review of the Petitioner's operations and provided a list of specific recommendations intended to improve the Petitioner's sales performance. He met with Mr. Hutchinson at the dealership and discussed the list of recommendations. At that time, Mr. Hutchinson stated that he believed the recommendations were useful.
On September 10, 2004, Nissan Vice President Doody sent another letter to Mr. Holler referencing the Petitioner's declining sales performance and, again, requesting that the Petitioner prepare a plan to address the issue.
A September 30, 2004, letter to the Respondent, allegedly from Mr. Holler, noted that staffing levels had been increased, a new executive manager (Mr. Hutchinson) had been hired, advertising funds had been increased, and customer service scores had improved. However, by that time,
Mr. Hutchinson had been employed at the dealership since at least August of 2003, and there was no credible evidence presented at the hearing that staffing levels, advertising funds, or customer satisfaction scores had been materially increased.
On October 18, 2004, Nissan Vice President Doody, sent another letter to Mr. Holler about the Petitioner's declining sales performance, noting that whatever efforts had been made by the Petitioner to improve sales had been unsuccessful. Thereafter, Mr. Doody arranged a meeting with Mr. Delbrueck, Mr. Holler, and another member of the Holler family to discuss the deteriorating situation at the dealership and between the parties.
The meeting occurred on October 26, 2004, during which the Nissan representatives addressed the issues including under- capitalization, declining sales, and customer satisfaction scores. The Nissan representatives noted the Petitioner's failure to respond to any of the continuing problems and advised the Petitioner that, if the situation did not improve, the Respondent could initiate proceedings to terminate the Dealer Agreement.
At the hearing, the Nissan representatives testified that the Holler family members in attendance at the October 26th meeting had no response during the discussion and offered no specific plan to resolve the situation. The Petitioner presented no credible evidence to the contrary.
Shortly after the meeting, and in the absence of any substantive attempt by the Petitioner to resolve the concerns set forth in the NODs, the Nissan representatives decided to
pursue termination of the Dealer Agreement if the Petitioner's sales penetration continued to be unsatisfactory.
The Petitioner's regional sales penetration as of November 2004 was 65.69 percent. The year-end sales penetration for 2004 was 64.5 percent of regional average.
On January 7, 2005, Mr. Delbrueck met with
Mr. Hutchinson to discuss the dealership's sales performance. By that time, more than a year had passed since Mr. Hutchinson's designation as executive manager, yet the dealership's sales performance had not improved.
Mr. Delbrueck inquired as to whether the Petitioner would be interested in using an additional Nissan resource (the EDGE program) designed to identify specific deficiencies in the sales process. The EDGE program included an extensive review of the sales process from the customer perspective, including a six-month survey period and four hidden camera "mystery shopper" visits.
There was a charge to dealers participating in the EDGE program. Mr. Hutchinson told Mr. Delbrueck that he would have to discuss the program with the owners. The Petitioner subsequently chose not to participate.
During the January 7th meeting, Mr. Delbrueck also encouraged Mr. Hutchinson to hire additional sales staff. At the hearing, Mr. Hutchinson testified that at the time of this
meeting, he had been "building a sales force" yet by March of 2005, the Petitioner's full-time sales staff was approximately one-half of what it had been in 2003.
On February 11, 2005, Mr. Delbrueck met with
Mr. Hutchinson and Holler family members to follow up on the NOD and the October 26th meeting, but made no progress towards resolving the problems.
On February 23, 2005, Mr. Delbrueck and Mr. Hayes met with Mr. Hutchinson to follow up on the recommendations
Mr. Hayes made in July 2004. Mr. Hutchinson continued to state that the recommendations were useful, but very few had been implemented, and he offered no plausible explanation for the delay in implementing others.
On February 24, 2005, the Respondent issued a Notice of Termination (NOT) of the Dealer Agreement that set forth the continuing decline in sales penetration as grounds for the action, as well as the alleged undercapitalization.
At some point in early 2005, the Petitioner increased the capitalization of the dealership and corrected the deficiency, although it was implied during the hearing that the correction was temporary and that the increased capital was subsequently withdrawn from the dealership. In any event, the Respondent issued a Superceding NOT on April 6, 2005, wherein
capitalization was deleted as a specific ground for the proposed termination.
The Petitioner's January 2005 sales penetration was
49.3 percent of regional average, the lowest of any Nissan dealer in the State of Florida.
Consumers typically shop various automobile brands, and a consumer dissatisfied with a dealer of one brand will generally shop dealers of competing brands located in the same vicinity, in order to purchase a vehicle at a convenient dealership for ease of obtaining vehicle service.
The Respondent asserted that it was harmed by the Petitioner's deteriorating sales performance because Nissan sales were "lost" to other manufacturers due to the Petitioner's failure to appropriately market the Nissan vehicles. The Petitioner asserted that because Nissan's overall sales performance in the Petitioner's PMA was average, no Nissan sales were lost. The Respondent offered testimony suggesting that sales lost to Nissan may not have been lost to the Holler ownership group because the group also owned nearby Mazda and Honda dealerships.
The evidence regarding the calculation of lost Nissan sales was sufficiently persuasive to establish that Nissan was harmed by the Petitioner's inadequate vehicle sales volume and by the Petitioner's failure to meet its obligation to "actively
and effective promote" the sale of Nissan vehicles to individual purchasers as required by the Dealer Agreement.
The number of sales lost is the difference between what a specific dealer, who met regional sales averages, should have sold compared to what the dealer actually sold.
In 2003, the Respondent lost 185 sales based on the Petitioner's poor sales performance. In 2004, the Respondent lost 610 sales based on the Petitioner's poor sales performance,
200 more lost sales than from the next poorest performing Nissan dealer in Florida.
The parties offered competing theories for the Petitioner's declining performance, which are addressed separately herein.
The greater weight of the evidence presented at the hearing establishes that as set forth herein, the Respondent's analysis of the causes underlying the Petitioner's poor sales performance was persuasive and is accepted.
The Respondent asserted that the sales decline was caused by operational problems, including an inadequate facility, inadequate capitalization, poor management, ineffective advertising, inadequate sales staff, and poor customer service.
Competing dealerships in the area have constructed improved or new facilities. Customers are more inclined to shop
for vehicles at modern dealerships. Upgraded dealerships typically experience increased customer traffic and sales growth.
The Petitioner's facility is old and in disrepair.
Some dealership employees referred to the facility as the "Pizza Hut" in recognition of the sales building's apparent resemblance to the shape of the restaurant.
Nissan representatives discussed the condition of the facility with the Petitioner throughout the period at issue in this proceeding. When the Respondent began preparing for the introduction of new models in 2002, the Respondent began to encourage dealerships including the Petitioner, to participate in the "Nissan Retail Environment Design Initiative" (NREDI), a facility-improvement program.
Apparently, the Petitioner was initially interested in the program, and, following a design consultation with the Respondent's architectural consultants, plans for proposed improvements to the Petitioner's facility were created.
At the time, the Respondent was encouraging dealers to improve facilities, the Respondent had a specified amount of funding available to assist dealers who chose to participate in the NREDI program, and there were more dealers interested than funds were available. Although funds were initially reserved for the Petitioner's use, the Petitioner declined in June of
2003 to participate in the program, and the funds were reallocated to other dealerships.
The Respondent implied that one of the reasons the Petitioner did not upgrade the dealership facility was a lack of capitalization.
The allegedly inadequate capitalization of the dealership was the subject of continuing discussions between the Petitioner and the Respondent for an extended period of time; however, inadequate capitalization was specifically deleted from the grounds for termination set forth in the NOT at issue in this proceeding.
Although the evidence indicates that lack of capitalization can limit a dealer's ability to respond to a multitude of problems at a dealership, the evidence is insufficient to establish in this case that an alleged lack of capitalization was the cause for the dealership's failure to upgrade its facility. In a letter to the Respondent dated June 30, 2003, the Petitioner stated only that it was "not feasible" to proceed and indicated an intention only "to proceed in the future," but offered no additional explanation for the lack of feasibility.
Similarly, it is not possible, based on the evidence presented during the hearing, to find that Petitioner's failure
to respond to the deteriorating operations at the dealership was due to a lack of financial resources.
Daily operations at the dealership were hampered by the lack of appropriate management at the dealership location. Although Mr. Holler was identified in the Dealer Agreement as the principal owner and the executive manager of the dealership, his address was located in Winter Park, Florida, and there was no credible evidence presented that he managed the operation on a daily basis.
As sales deteriorated, the Respondent began to insist that the Petitioner designate someone located on-site at the facility as executive manager with full control over the day-to- day operations of the dealership.
In June 2003, Mr. Sekula was appointed as executive manager, but his authority was limited and his decisions required approval of the ownership group. At the hearing,
Mr. Sekula acknowledged that the ownership group was bureaucratic. Shortly after his appointment, he was transferred by the ownership group to another of their competing dealerships.
Several months later, Mr. Hutchinson was appointed as executive manager. There was no credible evidence presented to establish that Mr. Hutchinson ran the fiscal operations of the dealership. He prepared budgets for various expenditures and
submitted them to the ownership group. The ownership group apparently controlled the "purse strings" of the dealership. There was no credible evidence presented as to the decision- making process within the group; however, decisions on matters such as the dealership's advertising budget required approval of the ownership group.
The failure to provide appropriate on-site management can delay routine decisions and negatively affect the ability to manage and motivate sales staff. For example, when Nissan offered Mr. Hutchinson the opportunity to participate in the Nissan EDGE sales program, Mr. Hutchinson was initially unable to respond, because he lacked the ability to commit the financial resources to pay for the program.
Mr. Hutchinson testified that the ownership group routinely approved his advertising budget requests. As the Petitioner's sales declined, so did advertising expenditures, from $694,107 in 2002 to $534,289 in 2004.
The Petitioner's declining advertising expenditures were a contributing factor in deteriorating sales. The Petitioner reduced its total advertising budget while the Orlando market was growing, and the Petitioner's sales penetration declined while competing dealerships sales increased.
Additionally, the Petitioner did not monitor the effectiveness of its advertising. The Petitioner's advertising was implemented through "Central Florida Marketing," a separate company owned by the Holler organization. There is no evidence that either the Petitioner or Central Florida Marketing monitored the effectiveness of the advertising.
A substantial number of Nissan buyers within the Petitioner's PMA purchased vehicles from other dealerships, suggesting that the advertising failed to attract buyers to the Petitioner's dealership. Only eight percent of the Petitioner's customers acknowledged seeing the Petitioner's advertising, whereas about 20 percent of car shoppers in the Orlando area admit being influenced by dealer advertising.
The Respondent asserted that the Petitioner failed to have sufficient sales staff to handle the increased customer traffic precipitated by the introduction of new Nissan models in 2002 and 2003. The Respondent offered evidence that the average vehicle salesperson sells eight to ten cars monthly, five to six of which are new cars and that, based on sales expectations, the Petitioner's sales force could not sell enough cars to meet the regional averages.
Although the evidence establishes that the Petitioner cut sales staff as sales declined at the dealership, there is no credible evidence that customers at the Petitioner's facility
were not served. The assertion relies upon an assumption that the Petitioner experienced increased sales traffic upon the introduction of new models and that the sales staff was inadequate to sufficiently service the increased traffic. The evidence failed to establish that the Petitioner experienced an increase in sales traffic such that sales were lost because staff was unavailable to assist customers.
However, the Petitioner's sales staff failed to take advantage of customer leads provided to the dealership by the Respondent. The Respondent gathered contact information from various sources including persons who requested vehicle information from the Respondent's internet site, as well as the names of lease customers whose lease terms were expiring. The contact information was provided to dealers without charge through the Respondent's online dealer portal. The Petitioner rarely accessed the data, and it is, therefore, logical to presume that the leads resulted in few closed sales.
The Petitioner's customer satisfaction scores also declined during the time period relevant to this proceeding. Poor customer service can eventually influence sales as negative customer "word-of-mouth" dampens the interest of other prospective customers. The Respondent monitored the customer opinions of dealer operations through a survey process, which resulted in "Customer Service Index" (CSI) scores.
Prior to 2003, the Petitioner's CSI scores had been satisfactory, and then CSI scores began to decline. By the close of 2003, the CSI scores were substantially below regional scores, and the sales survey score was the lowest in the Petitioner's district.
Although the Petitioner asserted on several occasions that CSI scores were increasing, the evidence established that only the March 2004 CSI scores improved and that no other material improvement occurred during the time period relevant to this proceeding.
The Petitioner asserted at the hearing that the sales performance decline was caused by a lack of vehicle inventory, the alteration of the Petitioner's PMA, a lack of available financing from Nissan Motors Acceptance Corporation (NMAC), hurricanes, improper advertising by competing dealers, and the death of Roger Holler, Jr.
The Petitioner also asserted that this termination action is being prosecuted by the Respondent because the Petitioner declined to participate in the NREDI dealer-facility upgrade program and declined to sell the Respondent's extended service plan product.
A number of the suggested causes offered by the Petitioner during the hearing were omitted from the Petitioner's
Proposed Recommended Order, but nonetheless are addressed herein.
The Petitioner asserted that the Respondent failed to make available marketable inventory sufficient for the Petitioner to meet sales penetration averages. The evidence failed to support the assertion.
Nissan vehicles were distributed according to an allocation system that reflected dealer sales and inventory. The Respondent used a "two-pass" allocation system to distribute
90 percent of each month's vehicle production. The remaining
10 percent were reserved for allocation by Nissan market representatives.
Simply stated, dealers earned new vehicles to sell by selling the vehicles they had. New vehicle allocations were based upon each dealer's "days' supply" of cars. The calculation of days' supply is essentially based on the number of vehicles a dealer had available on the lot and the number of vehicles a dealer sold in each month.
Through the allocation system, a dealership that failed to sell cars and lower its days' supply would be allocated fewer cars during the following month. More vehicles were made available to dealers with low days' supplies than were available to dealers with higher supplies. It is clearly
reasonable for the Respondent to provide a greater supply of vehicles to the dealers who sell more cars.
At some point during the period relevant to this proceeding, Nissan removed consideration of sales history from the days' supply-based allocation system calculation; however, there was no credible evidence presented to establish that the elimination of the sales history component from the calculation reduced the vehicle allocation available to the Petitioner.
The Respondent applied the same allocation system to all of its dealerships, including the Petitioner. There is no evidence that the Respondent manipulated the allocation system to deny any vehicles to the Petitioner.
The Respondent provided current inventory and allocation information to all of its dealerships, including the Petitioner, through a computerized database system. The Petitioner was responsible for managing vehicle inventory and for utilizing the allocation system to acquire cars to sell.
Although the Petitioner asserted that the decline in sales was related to a lack of vehicle inventory, there was no evidence that the Petitioner's inventory declined during the period relevant to this proceeding. In fact, the evidence established that the Petitioner's inventory actually increased from 150 vehicles in early 2003 to 300 vehicles in early 2004,
at which time the Petitioner reduced vehicle orders and the inventory began to decline.
The Petitioner also asserted that it was provided vehicles for sale that were undesirable to the Petitioner's customers, due to expensive or excessive options packages. There was no credible evidence that the Petitioner's sales declines were related to an inventory of undesirable vehicles.
Further, there was no evidence that the decline in sales penetration was related to poor supply of any specific vehicle model. Other than two truck models, the Petitioner's sales penetration decline occurred across the full range of Nissan vehicles offered for sale.
Every Nissan dealer had the ability to exercise significant control (including color and option package choices) over most of the inventory acquired during the "first pass" allocation.
Any inventory deficiencies that may have existed were the result of the Petitioner's mismanagement of inventory.
Mr. Hutchinson did not understand the vehicle allocation system or its relationship to the days' supply calculation. The Petitioner routinely declined to order units of Nissan's apparently most marketable vehicles during the allocation process.
During 2003, the Petitioner declined 137 vehicles from the "first pass" allocation, including 18 Sentras and
56 Altimas, and declined 225 vehicles from the "second pass" allocation, including 59 Sentras and 59 Altimas. During the first half of 2004, the Petitioner declined 58 vehicles from the "first pass" allocation and 42 vehicles from the "second pass" allocation.
During the hearing, one of the Petitioner's witnesses generally asserted that the Respondent's turndown records were erroneous; however, the witness was unable to identify any errors of significance, and the testimony of the witness was disregarded.
After the two-pass allocation process was completed, there were usually some vehicles remaining for distribution to dealers. Nissan assigned responsibility to DOMs to market these units to dealers. The DOMs used the days' supply calculation to prioritize the order in which they contacted dealers, although the vehicles were available to any dealer. There is no evidence that any DOM manipulated the days' supply-based prioritization of vehicles for denying the Petitioner the opportunity to obtain vehicles to sell.
Any vehicles remaining available after the DOM attempts to distribute the vehicles were identified as "Additional Vehicle Requests" (AVR) and were made available to
all dealers simultaneously. Dealerships were notified of such availability by simultaneous facsimile transmission or through the Nissan computerized database. There was no evidence that the Petitioner was denied an opportunity to obtain AVR vehicles, and in fact, the Petitioner obtained vehicles through the AVR system.
The Petitioner asserted that the Nissan practice of reserving 10 percent of each month's production for allocation by market representatives rewarded some dealers and punished others.
Market representative allocations are standard in the industry, and such vehicles are provided to dealerships for various reasons. Nissan market representative allocations were used to supply extra cars to newly opened dealerships or in situations where a dealership was sold to new ownership. Nissan market representative allocations were also provided to dealers who participated in the NREDI facility upgrade program.
The provision of additional vehicles by market representatives to new or expanded sales facilities was reasonable because the standard allocation system would not reflect the actual sales capacity of the facility.
The Petitioner presented no evidence that the Respondent, or any of its market representatives, manipulated the 10 percent allocation to unfairly reward any of the
Petitioner's competitors or to punish the Respondent for not participating in various corporate programs.
Prior to 2001, the Respondent had a program of providing additional vehicles to under-performing dealers in an apparent effort to increase sales by increasing inventory; however, the program did not cause an increase in sales and actually resulted in dealers being burdened with excessive unsold inventory and increased floor plan financing costs. The Respondent eliminated the program in 2001, and there is no evidence that any dealership was provided vehicles through this program during the time period relevant to this proceeding. There is no evidence that the Respondent eliminated the program for the purpose of reducing the vehicles allocated or otherwise provided to the Petitioner.
The Petitioner asserted that the Respondent altered the Petitioner's assigned PMA in March 2004 and that the alteration negatively affected the Petitioner's sales penetration calculation because the Petitioner's area of sales responsibility changed.
Prior to March 2004, the Petitioner's PMA was calculated using information reported by the 1990 United States Census. After completion of the 2000 Census, the Respondent evaluated every Nissan dealer's PMA and made alterations based upon population changes as reflected within the Census.
Standard Provision Section 3.A. of the Dealer Agreement provides that the Respondent "may, in its reasonable discretion, change the Dealer's Primary Market Area from time to time."
There was no credible evidence presented to establish that the 2000 PMA was invalid or was improperly designated.
There was no evidence that the Respondent's evaluation of the Petitioner's PMA was different from the evaluation of every other PMA in the United States.
There was no evidence that the Respondent evaluated or altered the Petitioner's PMA with the intent to negatively affect the Petitioner's ability to sell vehicles or to meet regional sales penetration averages.
There was no credible evidence that the 2000 PMA adversely affected the dealership or that the Petitioner's declining sales penetration was related to the change in the PMA. The alteration of the PMA did not sufficiently affect the demographics of the Petitioner's market to account for the decline in sales penetration. Recalculating the Petitioner's sales penetration under the prior PMA did not markedly improve the Petitioner's sales penetration.
The Petitioner suggested that the 2000 PMA revision was an impermissible modification or replacement of the Dealer Agreement, but no credible evidence was offered to support the
assertion. There was no evidence that the Petitioner did not receive proper notice of the 2000 PMA.
At the hearing, the Petitioner implied that the Respondent caused a decline in sales by refusing to make Nissan Motor Acceptance Corporation (NMAC) financing available to the Petitioner's buyers.
NMAC is a finance company affiliated with, but separate from, the Respondent. NMAC provides a variety of financing options to dealers and Nissan vehicle purchasers.
NMAC relies in lending decisions, as do most lenders, on a "Beacon score" which reflects the relative creditworthiness of a customer's application to finance the purchase of a car. Vehicle financing applications are grouped into four general "tiers" based on Beacon scores. Various interest rates are offered to customers based on Beacon scores.
The Petitioner offered data comparing the annual number of NMAC-approved applications submitted in each tier by the Petitioner on behalf of the Petitioner's customers to suggest that the decline in the Petitioner's sales indicated a decision by NMAC to decrease the availability of NMAC credit to the Petitioner's customers.
There was no evidence that NMAC treated the Petitioner's customers differently than the customers of competing dealerships or that NMAC-financed buyers received
preferential interest rates based upon the dealership from which vehicles were purchased.
There was no evidence that the Respondent exercised any control over individual financing decisions made by NMAC.
There was no evidence that the Respondent manipulated, or had the ability to manipulate, the availability of NMAC financing for the purpose of negatively affecting the Petitioner's ability to sell vehicles.
A number of hurricanes passed through the central Florida region in August and September of 2004. The Petitioner asserted that the dealership's physical plant was damaged by the storms, and that the hurricane-related economic impact on area consumers caused, at least in part, the decline in sales.
The evidence failed to establish that the Petitioner's physical plant sustained significant hurricane damage to the extent of preventing vehicle sales from occurring. None of the Petitioner's vehicle inventory sustained hurricane- related damage.
There was no evidence presented to indicate that the Petitioner's customers experienced a more significant economic impact than did the customers of competing dealers in the area.
There was no credible evidence that the hurricanes had any material impact on the Petitioner's sales penetration. The Petitioner's sales penetration immediately prior to the
hurricanes was 62.8 percent. The Petitioner's sales penetration in August 2004 was 61.6 percent, in September was 61.1 percent, and in October was 62.3 percent.
Generally, within 30 to 45 days after a hurricane, customers with damaged vehicles use insurance proceeds to purchase new vehicles. The Petitioner's sales volume increased at this time; although because other dealers in the region also experienced increased sales, there was no change to the Petitioner's sales penetration calculation.
The Petitioner asserted that improper advertising of "double rebates" by competing dealers caused declining sales, and offered evidence in the form of newspaper advertisements in support of the assertion; however, the Petitioner's own advertising indicated the availability of such rebates on occasion.
There was no evidence presented to establish that the Respondent was responsible for creating or approving advertisements for dealerships. The Respondent has a program whereby dealers who meet certain advertising guidelines can obtain funds to defray advertising costs, but the program is voluntary. The Respondent does not regulate vehicle advertising or retail pricing.
There was no evidence that the Petitioner reported any allegedly misleading or illegal advertising with any law
enforcement agency having jurisdiction over false advertising or unfair trade practices.
Mr. Hutchinson testified that the death of
Roger Holler, Jr., in February 2004, negatively affected sales at the dealership, but there was no evidence that Roger Holler, Jr., had any role in managing or operating the dealership. The Petitioner's sales decline commenced prior to his death and continued thereafter. The evidence failed to establish that the death had any impact on the operation of the dealership or the Petitioner's sales performance.
The Petitioner asserted that the Respondent's effort to terminate the Dealer Agreement was an attempt to punish the Petitioner for declining to participate in the NREDI program and offered a chronology of events intended to imply that the Respondent's actions in this case were a deliberate plan to force the Petitioner to either build a new facility or sell the dealership. The assertion is speculative and unsupported by credible evidence.
During the time period relevant to this proceeding, only one of the four Orlando-area Nissan dealers agreed to participate in the NREDI program. Of the four dealerships, three experienced increased sales activity during the period relevant to this proceeding. The Petitioner was the only one of the four dealerships to experience a decline in sales
penetration during this period. The Respondent has taken no action against the two other dealerships that declined to participate in the NREDI program.
There was no credible evidence that the Respondent has taken any punitive action against any dealership solely based on a dealership's decision not to participate in the NREDI program.
The Petitioner asserted that the Respondent's actions in this case were intended to punish the Petitioner for not selling the Respondent's extended service contract (known as "Security Plus") and for selling a product owned by the Petitioner, but there was no evidence supporting the assertion.
A substantial number of dealers in the region did not sell the Security Plus product to new car buyers. There was no evidence that the Respondent has penalized any dealer, including the Petitioner, for refusing to sell the Nissan Security Plus product.
During the hearing, the Petitioner identified a number of other troubled Nissan dealerships, ostensibly to establish that other dealerships similarly situated to the Petitioner had not been the subject of Dealer Agreement termination proceedings and that the Respondent had failed to enforce the Dealer Agreement termination provisions fairly.
A number of the dealerships cited by the Petitioner are outside the State of Florida and are immaterial to this proceeding.
The Dealer Agreement provides for termination of an agreement if the dealer materially and substantially breaches the agreement. The Dealer Agreement does not require termination of every dealership that fails to achieve average regional sales penetration.
Termination of a Dealer Agreement because of sales performance requires a dealer-specific analysis that includes consideration of the factors underlying poor sales and consideration of conditions that may warrant delaying termination proceedings.
As to the other Florida Nissan dealers cited by the Petitioner, many had higher sales penetration levels than did the Respondent. When compared to the Florida dealerships, the magnitude of the Petitioner's sales penetration decline exceeded that of all the other dealerships.
Many of the cited dealerships had also initiated changes in management, staffing, and facilities to address sale and service deficiencies. Some of the cited dealers had already shown sales and service-related improvements.
One dealership, Love Nissan, had already been terminated, even though its sales penetration had exceeded that of the Petitioner.
One dealership cited by the Petitioner was Hampton Nissan, against whom the Respondent had initiated termination proceedings in 2003. Changes to Hampton's PMA based on the 2000 PMA resulted in an increase in the dealership's sales penetration eventually to levels exceeding those of the Petitioner, and Nissan has rescinded the action. There was no evidence that the Hampton Nissan PMA was calculated differently than the Petitioner's PMA, or that either PMA was altered purposefully to affect the dealer's sales penetration results.
Other dealerships cited by the Petitioner were being monitored by the Respondent to ascertain whether efforts to improve sales performance succeed. The Respondent may ultimately pursue termination proceedings against underperforming dealerships if sales performance fails to improve.
There was no credible evidence that, prior to initiating this termination proceeding, the Respondent failed to consider the facts and circumstances underlying the Petitioner's poor sales and the Petitioner's response to the situation. The Petitioner has experienced a substantial and continuing decline in sales penetration and has failed to respond effectively to
the deteriorating situation during the period at issue in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
The Respondent has the burden of proving, by a preponderance of the evidence, that the proposed termination of the Dealer Agreement between the parties was undertaken in good faith, undertaken for good cause, clearly permitted by the franchise agreement, and based on material and substantial breach of the dealer agreement and whether the grounds relied upon for termination have been applied in a uniform and consistent manner. Love Nissan, Inc. v. Nissan North America,
Inc., paragraph 95, Case No. 04-2247 (DOAH July 14, 2005) (Fla. DHSMV April 12, 2006). The Respondent has met the burden.
Subsection 320.641(3), Florida Statutes, provides as follows:
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 determination of whether such action is an unfair or prohibited discontinuation, cancellation, nonrenewal, modification, or replacement. Agreements and certificates of appointment shall continue in effect until final determination of the issues raised in such petition or
complaint by the motor vehicle dealer. 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; or, if the grounds relied upon for termination, cancellation, or nonrenewal have not been applied in a uniform and consistent manner by the licensee. 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. (Emphasis supplied.)
Termination of the Dealer Agreement is clearly permitted by the franchise agreement. The Dealer Agreement requires that the Petitioner "actively and effectively promote" the retail sales of Nissan vehicles to retail customers and permits the Respondent to terminate the agreement upon the Petitioner's failure to meet its sales obligations. The Dealer Agreement specifically provides for measurement of sales performance by use of the dealer's sales penetration.
In this case, the Petitioner failed to actively and effectively promote the sale of new Nissan automobiles and, as a result, experienced a substantial and continuing decline in sales penetration, to the extent that the Petitioner became the lowest ranked dealership in the State of Florida during the period at issue in this proceeding.
The Respondent's termination of the dealership was undertaken in good faith. The Respondent provided appropriate and continuing notice to the Petitioner of the decline in sales penetration and offered specific recommendations intended to improve the Petitioner's sales performance. It is unknown whether the recommendations would have been successful because the Petitioner implemented very few of the items. The Respondent also suggested utilizing the EDGE program to identify specific sales process deficiencies, but the Petitioner declined to participate.
Additionally, the Respondent extended several deadlines for compliance with items identified in the initial NODs based apparently on representations made in communications received from the Petitioner, although the representations appear to be contradicted by fact. The Respondent's extension of the deadlines is a demonstration of good faith. Rick Starr Nissan Lincoln Mercury, Inc. v. Nissan Motor Corp., Case
No. 92-5187 (DOAH June 10, 1993) (Fla. DHSMV Aug. 5, 1993).
Although the Petitioner asserted the termination was being pursued because the Petitioner declined to participate in the NREDI program, no credible evidence was offered to support the assertion. Other Nissan dealerships have also declined to participate in the NREDI program, and the Respondent has taken no punitive action towards those dealers.
The Respondent's termination of the dealership was undertaken for good cause. As stated previously, the Petitioner experienced a substantial and continuing decline in sales penetration, becoming the lowest ranked dealership in the State of Florida during the period at issue in this proceeding. Every other Nissan dealer in Florida increased sales volume during the period, while the Petitioner's sales volume declined. The Petitioner made no substantive attempt to resolve the decline in sales.
The Petitioner's declining sales performance was due to operational problems at the dealership including issues related to management, advertising, facility and customer relations.
The ineffective management of the Petitioner's dealership was a source of continuing concern to the Respondent. The Dealership Agreement originally identified Mr. Holler as the executive manager, but there was no credible evidence that he managed the Petitioner on a daily basis.
The Petitioner subsequently designated other employees as executive managers, but neither actually had full authority to operate the dealership. Mr. Sekula became the executive manager in June 2003, but he was soon transferred to another dealership by the ownership group. Subsequently,
Mr. Hutchinson was appointed as executive manager, but his
authority remained limited by the requirement that he obtain approval over budgets and expenditures from the ownership group. Mr. Hutchinson reduced the full-time sales staff and, apparently with approval of the owners, reduced the advertising budget.
Further, there was no systematic monitoring of advertising effectiveness, and the Petitioner failed to use active sales leads provided to the Petitioner by the Respondent.
The Petitioner asserted that the advertising budget actually increased on the "per unit sold" basis, but the assertion, even if true, fails to establish that the dealership was actively and effectively promoting the sale of vehicles. It is as likely that the "per unit sold" calculation increased because new car sales declined more rapidly than did the advertising budget. A dealership expending a large advertising budget on the sale of a single vehicle would not be regarded as effectively promoting the sale of new vehicles.
The Petitioner's sales facility was uninviting and substandard in relation to the sales facilities of competing dealerships in the area, and there were apparently no specific plans to improve the physical plant, save for the Petitioner's vague assurance that it would be "feasible" to "proceed in the future."
The Petitioner's customer service scores also declined during the time at issue in this proceeding, to become
the lowest in the area. The Petitioner rejected the Respondent's suggestion to implement the EDGE program, which specifically was directed towards reviewing the sales experience from the customer perspective.
The result of the Petitioner's failure to actively and effectively market Nissan vehicles to retail customers was that the Respondent lost 185 new car sales in 2003 and 601 new car sales in 2004.
The termination is based on material and substantial breach of the Dealer Agreement. The Petitioner's sales penetration decline was substantial, continuing, and occurred during a period of increased sales performance at other Nissan dealerships. The magnitude of the sales shortfall in this case demonstrates the ineffectiveness of the Petitioner's performance. A dealership's failure to achieve reasonable market share is a material and substantial breach of the Dealer Agreement. Bill Gallman Pontiac GMC Truck, Inc. v. General Motors Corp., Case 89-0505 (DOAH June 28, 1990) (Fla. DHSMV February 28, 1991).
While not every dealer who fails to achieve average sales penetration warrants termination, the evidence fails to establish that the Petitioner made any substantive effort to remedy the sales decline, and the failure to do so further constitutes a material and substantial breach of the dealer's
obligation to actively and effectively market the vehicles to retail customers.
The Respondent has applied the grounds relied upon for termination in a uniform and consistent manner. Sales penetration statistics were uniformly calculated and provided an accurate identification of dealer performance within each dealer's competitive environment. Primary Market Areas for all dealers are established in a routine manner utilizing a standardized collection of demographic data. The Petitioner presented no credible evidence to the contrary.
The Petitioner asserted that the Respondent had not applied the grounds for termination uniformly or consistently because the Respondent allowed other under-performing dealerships to continue operations while initiating termination proceedings against the Petitioner.
Many of the cited dealerships responded to sales- related deficiencies with plans to address operational issues, including replacement of management and improvement of facilities. Some may yet face termination proceedings.
In contrast, none of the cited dealerships suffered the magnitude of the Petitioner's sales decline; yet the Petitioner made little effort to effectively address the situation.
The evidence failed to establish that the Respondent should have initiated termination proceedings against any of the operating Nissan dealerships cited by the Petitioner prior to pursuing the termination at issue in this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order dismissing Petitioner's protest and approving the April 6, 2005, Superceding Notice of Termination.
DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida.
S
WILLIAM F. QUATTLEBAUM
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2007.
ENDNOTE
1/ All references to Florida Statutes are to Florida Statutes (2006), unless otherwise indicated.
COPIES FURNISHED:
Michael J. Alderman, Esquire Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room A-432 2900 Apalachee Parkway
Tallahassee, Florida 32399-0635
Dean Bunch, Esquire
Sutherland, Asbill & Brennan, LLP
3600 Maclay Boulevard, South, Suite 202
Tallahassee, Florida 32312-1267
W. Douglas Moody, Jr., Esquire Robert C. Byerts, Esquire Myers & Fuller, P.A.
2822 Remington Green Circle Post Office Box 14497 Tallahassee, Florida 32308
William R. Pfeiffer, Esquire
The Law Offices of William R. Pfeiffer 2822 Remington Green Circle
Post Office Box 10528 Tallahassee, Florida 32302
Steven A. McKelvey, Jr., Esquire
S. Keith Hutto, Esquire
M. Ronald McMahan, Jr., Esquire
Nelson, Mullins, Riley & Scarborough, LLP 1320 Main Street, 17th Floor
Post Office Box 11070 Columbia, South Carolina 29201
Frank A. Hamner, Esquire Frank A. Hamner P.A.
1011 North Wymore Road Orlando, Florida 32789
Cristian S. Torres, Esquire Nissan North America, Inc. Legal Department
333 Commerce Street, 7th Floor Nashville, Tennessee 37201
Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Room B-439 2900 Apalachee Parkway
Tallahassee, Florida 32399-0500
Judson Chapman, General Counsel Department of Highway Safety and
and Motor Vehicles 2900 Apalachee Parkway
Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0500
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 31, 2007 | Agency Final Order | |
| Mar. 20, 2007 | Recommended Order | The proposed termination of the dealer agreement meets statutory requirements and is not unfair. |
