STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VOLKSWAGEN OF AMERICA, INC., ) and GUNTHER MOTOR CO., )
)
Petitioners, )
)
vs. ) Case No. 98-2394
) POMPANO IMPORTS, INC., d/b/a ) VISTA MOTOR COMPANY, )
)
Respondent, )
)
and )
)
BORTON MOTORS, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on January 19-21, and July 26-29, 1999, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner Volkswagen of America, Inc:
James R. Vogler, Esquire Randall L. Oyler, Esquire Jason C. Turner, Esquire Foley & Lardner
One IBM Plaza
330 North Wabash Avenue, Suite 3300 Chicago, Illinois 60611
For Petitioner Gunther Motor Company: 1/
Joseph F. Gunther, Jr. 2/ 1660 South State Road 7
Fort Lauderdale, Florida 33317 For Respondent Pompano Imports, Inc.:
John Forehand, Esquire Walter Forehand, Esquire Myers, Forehand & Fuller
402 Office Plaza Drive Tallahassee, Florida 32301
For Intervenor Borton Motors, Inc.:
James D. Adams, Esquire 3/ Adams & Quinton, P.A.
7300 West Camino Real
Boca Raton, Florida 33433 STATEMENT OF THE ISSUE
Whether Volkswagen of America, Inc., should be permitted to establish an additional franchised dealership in Broward County, Florida, as more specifically described in the written notice it provided the Department of Highway Safety and Motor Vehicles advising of its intention to establish such a dealership.
PRELIMINARY STATEMENT
On May 21, 1998, the Department of Highway Safety and Motor Vehicles (Department) referred to the Division of Administrative Hearings (Division) a Petition or Complaint Protesting Establishment of Dealership (Petitioner's Complaint) that Pompano Imports, Inc., d/b/a Vista Motor Company (Vista) had filed with the Department on May 15, 1998. Petitioner's Complaint (which was docketed as DOAH Case No. 98-2394) read as follows:
Pompano Imports, Inc. d/b/a Vista Motor Company ("Vista") has received notice of Volkswagen of America, Inc.'s (VW) intention to allow the establishment of Gunther Motor Company ("Gunther"), as more particularly described in Florida Administrative Weekly, Volume 24, Number 16, April 17, 1998, page 2093, Section XII- Miscellaneous, in Coconut Creek, Florida, via publication of said
April 17, 1998, edition of Florida Administrative Weekly.
Vista, whose address is 700 North Federal Highway, Pompano Beach, Florida 22602, has standing to maintain this protest or complaint under Section 320.642, Florida Statutes, in that the proposed new dealership would be located within 12.5 miles from Vista's existing dealership location.
The proposed dealer, Gunther, is an additional motor vehicle dealer within the terms of Chapter 320, Florida Statutes.
VW is being adequately represented in this line-make in the community or territory of the proposed new dealership by existing franchised same-line dealers who register retail sales and leases in the community or territory.
Granting of the application for an additional dealership would violate the provisions of Section 320.642, Florida Statutes, and would adversely affect Vista.
WHEREFORE, Vista protests the proposed additional dealership, asks that the application for an additional dealership be denied, and seeks an administrative hearing as provided by Section 320.699(1)(b), Florida Statutes.
On June 26, 1998, the Department referred to the Division a written complaint that Borton Motors, Inc. (Borton) had filed with the Department on June 23, 1998. Borton's written complaint (which was docketed as DOAH Case No. 98-2894) read as follows:
Thank you for your letter regarding a proposed Volkswagen dealership in Coconut Creek.
We do believe that the location is within 20 miles of us and more than 25% of our sales are within that 20 miles.
Therefore, we would like to register a complaint and protest against this new dealership being placed on State Rd 441 in Coconut Creek.
On July 13, 1998, Volkswagen of America, Inc. (VWoA) filed a Motion to Dismiss Complaint (VWoA's Motion) in DOAH Case No
98-2894, alleging that Borton's written complaint had not been filed within the time frame specified in Section 320.642, Florida Statutes (that is, 30 days of the date of publication of the notice of the proposed establishment of the new dealership). On July 23, 1998, Borton filed a written response to VWoA's Motion, accompanied by an affidavit of Borton's President, Loren Sheffer, in which Mr. Sheffer stated that he "did not receive the Notice of Publication on this additional point until approximately
June 17, 1998." On July 28, 1998, the undersigned issued an Order, which provided, in pertinent part, as follows:
Pursuant to Section 320.642(1), Florida Statutes, the Department of Highway Safety and Motor Vehicles (Department) is without jurisdiction to entertain any complaint concerning the establishment of a new motor vehicle dealership filed by an existing dealer which is franchised to sell the same line-make vehicle as the proposed dealership and which has licensed locations in the county, or in the county contiguous to the county, of the proposed dealership, if the complaint is filed "more than 30 days from the date of publication of the notice [of the
proposed new dealership] in the Florida Administrative Weekly," provided that the published notice adequately "describe[d] and identif[ied] the proposed dealership" and the Department timely "cause[d] a copy of the notice to be mailed" to the complaining existing dealer. Cf. Fiat Motors of North America, Inc. v. Calvin, 356 So. 2d 908, 909 (Fla. 1st DCA 1978)("Alpine's failure to timely file the required verified complaint [concerning Fiat's proposed discontinuation of Alpine's franchise agreement] left the Division [of Motor Vehicles] without jurisdiction and, upon expiration of the 90- day period for initiating proceedings, without power to acquire jurisdiction.
Administrative agencies are creatures of
statute and have only such powers as statutes confer.") It appears that there is no dispute that Respondent [Borton] filed its complaint in the instant case "more than 30 days from the date of publication of the notice [of the proposed new dealership] in the Florida Administrative Weekly"; however, VWoA has not alleged, nor has it been shown to be undisputed, that the Department timely "cause[d] a copy of the notice to be mailed" to [Respondent], as required by Section 320.642(1), Florida Statutes.
Accordingly, VWoA's request that the undersigned issue an order recommending the dismissal of Respondent's complaint on the ground that the complaint was untimely filed is hereby DENIED, without prejudice to VWoA filing an amended request alleging that the Department timely "cause[d] a copy of the notice [of the proposed new dealership] to be mailed" to [Respondent], as required by Section 320.642(1), Florida Statutes.
On August 7, 1998, VWoA filed such an amended request (Amended Request), in which it asserted, among other things, the following:
As further required by Fla. Stat. Section 320.642(1), the Department, on April 22, 1998, caused a copy of the notice [of the
proposed new dealership] to be mailed directly to Borton. . . . The notice mailed directly to Borton was timely and it stated that written complaints or protests must be received by the Department within thirty days of the date the notice was published in the Florida Administrative Weekly.
VWoA's Amended Request was accompanied by an affidavit of R. Reynolds, the Administrator of the Department's Dealer License Section, supporting the assertion made in the Amended Request set out above. Borton filed a response to VWoA's Amended Request, together with another affidavit of Mr. Sheffer, on August 26, 1998. VWoA, on September 2, 1998, filed a reply to Borton's response. Oral argument on VWoA's Amended Request was heard on September 9, 1998, by telephone conference call.
On September 17, 1998, the undersigned issued a Recommended Order of Dismissal in DOAH Case 98-2894, giving the following explanation for his decision to return the matter to the Department "with the recommendation that it issue a final order dismissing [Borton's] complaint as untimely filed":
Because, in the instant case, it is undisputed that the Department timely "cause[d] a copy of the notice [which adequately described and identified the proposed new dealership] to be mailed to Respondent, but Respondent filed its complaint "more than 30 days from the date of publication of the notice in the Florida Administrative Weekly," the complaint must be dismissed.
On October 14, 1998, the Department issued a Corrected Final Order in DOAH Case No. 98-2894, which provided as follows:
This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Stuart M. Lerner, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter.
Accordingly, it is ORDERED and ADJUDGED that
Respondent's Borton Motors, Inc., complaint was untimely filed.
That the Final Order of Dismissal issued October 6, 1998, is vacated.
That this case is dismissed.
The Department's Corrected Final Order of Dismissal contained the following "Notice of Appeal Rights":
Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to the Rules of Appellate Procedure.
There is no indication in the record that Borton sought judicial review of the Department's Corrected Final Order of Dismissal.
The final hearing in the instant case (DOAH Case No.
98-2394) was originally scheduled to commence on October 26,
1998, but was continued and rescheduled (to commence on January 19, 1999) upon the joint request of the parties.
On January 13, 1999, VWoA and Vista 4/ filed a Prehearing Stipulation, in which they stated, among other things, the following:
Nature of the Controversy: Petitioners, Volkswagen of America, Inc. ("VW"), and Gunther Motor Company ("Gunther"), propose to establish a new dealership for the sale of Volkswagen vehicles, at Block 89, lots 22 and 23, on the northeast corner of State Road 441 and Collum Road, Coconut Creek, Florida. Respondent, Pompano Imports, Inc. d/b/a Vista Motor Company ("Vista"), is protesting the proposed additional dealership pursuant to the provisions of Section 320.642, Florida Statutes.
Statement of Each Party's Position: Petitioners assert that the establishment of the new dealership at the proposed site is appropriate pursuant to Section 320.642, Florida Statutes. Petitioners assert that the existing franchised Volkswagen dealers who register retail sales or retail leases of new Volkswagen vehicles in the relevant community or territory of the proposed new dealership site are not providing adequate representation of Volkswagen in such community or territory, or in an identifiable plot thereof, under the factors set forth [in] Section 320.642(2), Florida Statutes. Respondent asserts that the establishment of the new dealership at the proposed site is not appropriate pursuant to Section 320.642, Florida Statutes. Respondent asserts that the existing franchised Volkswagen dealers who register retail sales or retail leases of new Volkswagen vehicles in the relevant community or territory of the proposed new dealership site are providing adequate representation of Volkswagen in such community or territory, and that there is no uncultivated identifiable plot within the community or territory. . . .
Stipulated Facts:
VW is a distributor and licensee as defined by Sections 320.60(5) & (8), Florida Statutes.
Gunther and Vista are motor vehicle dealers as defined by Section 320.60(11), Florida Statutes, and are existing franchised Volkswagen dealers.
Vista has standing to protest the proposed establishment of the new dealership pursuant to Section 320.642(3), Florida Statutes, in that Vista is located within twelve and one-half miles of the proposed new dealership site. . . .
Stipulated Legal Conclusions: This matter is governed by the provisions of Section 320.642, Florida Statutes.
Facts in Dispute:
The community or territory in which the proposed territory in which the proposed relocation site lies.
Petitioners contend that the registration, demographic, and other data relevant to the eleven factors provided in Section 320.642(2), Florida Statutes, suggest that the existing dealers are not providing adequate representation in the community or territory as a whole and in "identifiable plots" within the community or territory as a whole, as those terms are utilized in Section 320.642 and prevailing precedent. Respondent disputes these contentions, and contends that there does not exist a separate, uncultivated, "identifiable plot," as that term is used by Petitioner, within the community or territory.
Legal Issues to be Determined: Petitioners contend that the legal issue to be determined is whether the existing Volkswagen dealers are not providing adequate representation in the community or territory as a whole, or in "identifiable plots" within
the community or territory as a whole, as those terms are utilized in Section 320.642 and prevailing precedent, with reference to the factors set forth in Section 320.642(2), Florida Statutes. Respondent contends that the sole legal issue to be determined is whether Petitioners have met their burden of proof and established that the existing Volkswagen dealers have not provided adequate representation in the community or territory as a whole. . . .
As noted above, the final hearing in this case began on January 19, 1999. On that first day of hearing, during the cross-examination of Joseph F. Gunther, Jr., VWoA's first witness, Vista, ore tenus, moved to "dismiss based on improper notice [of the proposed establishment of the new dealership.]" After hearing oral argument on the motion, the undersigned indicated that he would defer ruling on the motion until "all matters [in dispute] were fully litigated [at hearing] and briefed [in proposed recommended orders.]"
The final hearing continued until January 21, 1999, when the proceedings were adjourned, at VWoA's request, to enable VWoA's expert to address concerns that he had with respect to the accuracy of certain data that both he and Vista's expert would be relying on in their testimony.
On February 16, 1999, Borton filed a motion requesting permission "to intervene in this proceeding for purposes of asserting that the Notice [required by Section 320.642(1), Florida Statutes] was defective and thus this proceeding should be dismissed and Petitioner ordered to file a new Notice
accurately reflecting the investors in the proposed additional point." On February 23, 1999, Vista filed a written response to Borton's motion, in which it stated its position that Borton has "a right to intervene in this protest" proceeding. On March 1, 1999, VWoA filed a Memorandum in Opposition to Borton's motion. Oral argument on the motion was held by telephone conference call on March 8, 1999. The following day, March 9, 1999, the undersigned issued an Order granting Borton's motion. In his Order, the undersigned directed the parties to, no later than April 15, 1999, "advise the undersigned in writing as to whether they intend[ed] to present any additional evidence concerning the 'defective notice' issue referenced in Borton's motion and, if so, their estimate as to how much time w[ould] be needed to present such evidence." On April 12, 1999, Borton filed such a written advisement, in which it stated that it did "not plan to appear and present any additional evidence" on the "defective notice" issue, but "reserve[d] the right to rely on any further evidence presented by any party throughout the Final Hearing in support of Borton's proposed Recommended Order" on this issue.
The final hearing in this case resumed on July 26, 1999, and continued until its conclusion on July 29, 1999.
The following witnesses testified at the final hearing: Joseph F. Gunther, Jr.; James Wolter; David Wicks; James Anderson; Michael Perrault; Dr. Ernest Manuel, Jr.; and Dr. Mark Schmitz. In addition, numerous exhibits (VWoA's Exhibits 1, 4-
29, 30 (page 36 thereof only), 31-32, 37-39, 47-52, 54, 57, 60-
63, 65-85 and 87, 5/ and Respondent's Exhibits 1, 3, 5-6, 10- 13, 16-20 and 27-38) were offered and received into evidence.
At the close of the evidentiary portion of the hearing on July 29, 1999, the parties were advised of their right to file proposed recommended orders and a deadline was established (45 days from the date of the undersigned's receipt of the transcript of the final hearing) for the filing of proposed recommended orders.
The undersigned received the complete transcript of the hearing (consisting of 13 volumes) on September 3, 1999.
Thereafter, the deadline for filing proposed recommended orders was extended three times at VWoA's request. The final extension was to November 12, 1999. On that date, VWoA, Vista, and Borton filed Proposed Recommended Orders. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
VWoA is a Florida-licensed importer and distributor of Volkswagen (VW) vehicles. It is a wholly-owned subsidiary of Volkswagen AG (VAG).
VAG, which is headquartered in Germany, manufactures VW- brand motor vehicles. On a worldwide basis, it produces more
vehicles than any other manufacturer except Ford Motor Company and General Motors Corporation.
VWoA distributes to its franchised dealerships in the United States and Canada VW vehicles manufactured by VAG.
VWoA establishes annual planning volumes or sales objectives for each of its franchised dealerships (based upon the dealership's past sales performance and other pertinent factors). For the first quarter of each year, VWoA's allocation of vehicles to the dealership is based upon the established planning volume for that dealership. In determining the number of vehicles to allocate to a dealership during the remainder of the year, VWoA takes into consideration the dealership's to-date sales performance for the year in relation to VWoA's expectations (as reflected by the dealership's planning volume previously established for that year).
VWoA's franchised dealerships (VW dealerships) in the United States are assigned to one of five regions, each headed by a VWoA regional team leader.
VW dealerships in Florida are assigned to the Southeast Region. James Wolter has been the regional team leader for VWoA's Southeast Region since January 1, 1999.
Each region, including the Southeast Region, is divided into districts, each headed by a VWoA area executive.
The area (defined in terms of zip codes) around each dealership in a district in which the dealership is deemed to
have a geographic advantage over other VW dealerships because of the dealership's proximity (in terms of distance by air) to consumers living in that area is referred to by VWoA as the dealership's Primary Area of Influence or PAI. Three digit numbers are used to designate each dealership's PAI.
VW dealerships in southeast Florida, from Indian River County (to the north) to Dade County (to the south), are assigned to District 22. Charles Westly has been the area executive of District 22 since January 1, 1999. At present, there are 11 existing VW dealerships located in District 22: Vista Volkswagen, whose PAI is 012; Esserman International, whose PAI is 029; Vero Beach Motorsports, whose PAI is 031; South Motors, whose PAI is 041; Gunther Volkswagen, whose PAI is 073; Stuart Volkswagen, whose PAI is 087; Esserman Volkswagen, whose PAI is 095; Deel Volkswagen, whose PAI is 223; Borton Volkswagen, whose PAI is 237; Palm Beach Volkswagen, whose PAI is 241; and Schumacher Volkswagen, whose PAI is 242.
Nine of these 11 dealerships are located in Dade, Broward, or Palm Beach Counties (which, collectively, are also known as the "Miami Metro").
The dealerships located in Dade County are Esserman International, South Motors, Esserman Volkswagen, and Deel Volkswagen.
The dealerships located in Palm Beach County are Borton Volkswagen, Palm Beach Volkswagen, and Schumacher Volkswagen.
Borton Volkswagen, which is operated by Borton, is located at 2201 North Federal Highway in Delray Beach in southeast Palm Beach County. Palm Beach Volkswagen and Schumacher Volkswagen are located to the north of Borton Volkswagen.
The dealerships located in Broward County are Vista Volkswagen and Gunther Volkswagen. Although Broward County presently has fewer VW dealerships than either of the other two counties which comprise the Miami Metro, of the three Miami Metro counties, Broward County is (based on 1998 registration data) the largest market in terms of the sale of new automobiles (of all makes).
Vista Volkswagen, which is operated by Vista (an entity owned by Charles Dascal, Larry Hoffman, and Richard Buttafuoco, who also have an ownership interest in the entity that operates South Motors) is located 17.2 miles south of Borton Volkswagen at 700 North Federal Highway in Pompano Beach in northeast Broward County. Vista also operates (out of separate facilities and using a separate sales and service staff) a BMW dealership at this location.
Gunther Volkswagen is located 11.4 miles to the southwest of Vista Volkswagen at 1660 South State Road 7 (441) in the Fort Lauderdale/Plantation area. It is operated by Gunther Motor Company of Plantation, Inc. (Gunther Plantation), which prior to July 15, 1999, was known as Gunther Motor Company, and, which prior to 1991, was known as Gunther Volkswagen, Inc.
Gunther Plantation also operates (out of separate facilities and using separate sales and service staff) Kia and Mazda dealerships on the 15-acre tract on which Gunther Volkswagen is located.
Joseph F. Gunther, Jr. (Mr. Gunther) is the President of Gunther Plantation and its majority (51%) shareholder. The remaining 49% of the shares of the corporation are owned by Mr. Gunther's three sons, Joseph F. Gunther III (16%), John Casey Gunther (Casey Gunther) (16%), and Michael Gunther (17%).
The elder Mr. Gunther has had an ownership interest in Gunther Plantation and has been actively involved in the operations of Gunther Volkswagen since 1970.
In 1970, when Gunther Volkswagen opened (as the third VW dealership in Broward County), VWoA had annual sales in the United States of 569,292 units, which were made through a dealer network of 1,160 dealerships. 6/
Thereafter, as Japanese imports became increasingly popular, annual sales of new VWs (VW sales) in the United States declined. There was also a decline in the number of VW dealerships in the United States starting in 1973. (The number of VW dealerships in the United States peaked at 1,203 in 1972.)
In 1993, VW sales in the United States were 49,533 units, fewer than had been made in any year since 1955. By that year, the nationwide VW dealership network was "pretty fragmented." It consisted of 639 dealerships (564 less than had
been in operation in 1972), not all of which were at the "right" locations.
In 1993, Dr. Ferdinand Piech (an engineer by profession) became the Chief Executive Officer of VAG. Under his leadership, VAG took measures that significantly improved the quality of the product it manufactured. At the same time, VWoA reorganized its management structure and began the task of rebuilding the VW dealership network in the United States by closing underperforming dealerships, relocating dealerships to better locations, and selectively adding new dealerships in markets where it was either not represented or not adequately represented.
In the years subsequent to 1993, VW sales in the United States have rebounded significantly. In 1994, 1995, 1996, 1997, and 1998, VW sales in the United States were 97,043, 115,114, 135,907, 137,885, and 219,679 units, respectively. While VW sales in the United States have increased over this period of time, the number of United States VW dealerships has declined each year. At the end of 1998, there were 600 VW dealerships in the United States, 39 less than in 1993 and 603 less than in 1972.
VWoA anticipates that VW sales in the United States will continue to rise. It has a sales objective of 306,000 units for 1999 and 348,000 units for 2000.
There has also been, subsequent to 1993, a substantial increase in VW sales by dealerships in what is now District 22 (the District 22 area) and by dealerships in the Miami Metro. In 1993, 1994, 1995, 1996, 1997, and 1998, VW sales by dealerships in the District 22 area totaled 1,226, 2,448, 3,041, 3,913, 4,264, and 7,757 units, respectively, and VW sales by dealerships in the Miami Metro totaled 1,187, 2,351, 2,941, 3,816, 4,236, and 7,648 units, respectively. In the first six months of 1999, VW sales by dealerships in the District 22 area totaled 5,739 units, and VW sales by dealerships in the Miami Metro totaled 5,509 units.
In 1998, Gunther Volkswagen sold more VWs than any other dealership in the United States. In terms of the total number of VW sales made during 1998, the other VW dealerships in the Miami Metro ranked 44th (South Motors), 56th (Esserman Volkswagen), 57th (Deel Volkswagen), 61st (Vista Volkswagen), 88th (Palm Beach Volkswagen), 100th (Schumacher Volkswagen), 105th (Borton Volkswagen), and 319th (Esserman International 7/) out of the 600 VW dealerships in the United States. Out of the
170 dealerships in VWoA's Southeast Region, the Miami Metro dealerships' sales rankings for 1998 were as follows: Gunther Volkswagen: 1st; South Motors: 10th; Esserman Volkswagen: 13th; Deel Volkswagen: 14th; Vista Volkswagen: 16th; Schumacher Volkswagen: 22nd; Borton Volkswagen: 24th; and Esserman International: 84th. For the first six months of 1999, three of
the Miami Metro dealerships were among the top 50 VW dealerships in the United States in total VW sales. Gunther Volkswagen was number one, with 1,829 VW sales; South Motors was number 17, with 708 VW sales; and Vista Volkswagen was number 44, with 548 VW sales.
The increases in VW sales in the District 22 area and the Miami Metro have occurred despite supply shortages of certain popular models with features desired by consumers that have resulted in dealerships creating "waiting lists" for these vehicles (a nationwide problem VWoA and VAG are taking measures to rectify 8/); the absence of a VW dealership in Martin County in 1997 and 1998; and having one less dealership in Broward County since the closing of Arnie Smith Volkswagen in or about July of 1995.
Arnie Smith Volkswagen was located in an older facility in a deteriorating area on Sunrise Boulevard in Fort Lauderdale, approximately halfway between Gunther Volkswagen and Vista Volkswagen. In addition to being in a bad location, it suffered from management problems and high employee turnover. As a result, its VW sales were declining. (From January of 1995 through July of 1995, its VW sales were 63 units, 43 less than the number of VW sales it had made during the first seven months of the previous year.)
Arnie Smith Volkswagen was bought out by VWoA and Gunther Plantation (which at the time was known as Gunther Motor
Company). Vista was asked to participate in the buy-out, but declined to do so.
The closing of Arnie Smith Volkswagen left VWoA with two dealerships in Broward County, neither of which was located in the rapidly growing western portion of the county.
At the time of the closing of Arnie Smith Volkswagen, VWoA believed that the most prudent course of action was to keep the Broward County VW dealership count at two to allow the two remaining dealerships to "get some meat on their bones."
These two dealerships, Gunther Volkswagen and Vista Volkswagen, did enjoy an increase in VW sales after the closing of Arnie Smith Volkswagen. In the first half of 1995, when Arnie Smith Volkswagen was still in business, Gunther Volkswagen and Vista Volkswagen had 571 and 121 VW sales, respectively. In the second half of 1995, when Arnie Smith Volkswagen was no longer selling VWs, Gunther Volkswagen and Vista Volkswagen had 664 and
160 VW sales, respectively. Gunther Volkswagen's VW sales in 1996, 1997, and 1998 were 1,657, 1,657, and 2,565 units, respectively. Vista Volkswagen's VW sales in 1996, 1997, and 1998 were 370, 515, and 722 units, respectively.
By late 1996 to early 1997, VWoA determined that the time was right to establish another VW dealership in Broward County and bring its dealership count in the county to three (which is the same number of VW dealerships that VWoA had in the county from 1970 until Arnie Smith Volkswagen went out of
business in or about July of 1995). After reviewing vehicle registration and sales data, which reflected that its principal competitors with dealerships in the Coconut Creek area of northwest Broward County were outperforming VWoA in that area, VWoA made the further determination that this third Broward County VW dealership should be located in the Coconut Creek area (which, in 1970, consisted of either swamp or farm land and today is one of the fastest growing areas in the nation, with a population having income characteristics that make it a "great spot to be selling . . . new vehicles").
There has been no showing that VWoA, at any time, attempted to coerce any of the existing VW dealers to consent to the establishment of such an additional VW dealership.
After determining to establish an additional VW dealership in the Coconut Creek area, VWoA began looking for an operator for this additional dealership, and it also retained the services of a real estate company, the Core Company (which is now known as Travel Pro), to search for a suitable site in the Coconut Creek area for the dealership.
Vista and Gunther Plantation were among the candidates VWoA considered to operate the dealership.
VWoA had several conversations about the Coconut Creek market with Vista (which recognized that the Coconut Creek area was a "boom" area with considerable market potential).
At no time during these conversations did Vista indicate that it was willing to operate full-scale VW dealerships in both Pompano Beach and the Coconut Creek area.
After reviewing the qualifications and credentials of the candidates under consideration, VWoA, exercising reasonable and sound business judgment, determined that the principals of Gunther Plantation (which at the time was third in the nation in the number of VW sales) were best suited to operate the additional VW dealership in the Coconut Creek area. It then entered into negotiations with them.
Thereafter, some time before March 18, 1998, Vista approached VWoA and proposed that it be allowed to either relocate its Pompano Beach VW dealership to the Coconut Creek area or operate a full-scale VW dealership in the Coconut Creek area, while maintaining a satellite VW dealership with limited sales, service, and parts facilities (as opposed to a full-scale VW dealership) in Pompano Beach.
VWoA rejected both alternatives inasmuch as it had already selected an operator for the Coconut Creek area VW dealership.
It does not appear that, in denying Vista the opportunity to operate a VW dealership in the Coconut Creek area, VWoA acted unreasonably; nor is there evidence that VWoA, in any other respect, acted in a manner that unreasonably denied Vista the opportunity to grow and expand its VW dealership.
Notwithstanding VWoA's rejection of Vista's proposal, Vista still intends to proceed with plans to relocate its Pompano Beach BMW dealership to the Coconut Creek area, a move that would result in an increase in Vista's operating expenses.
In middle to late 1997, VWoA acquired property in the Coconut Creek area for a VW dealership. The property is located on the northeast corner of State Road 7 (441) and Collum Road (Coconut Creek Site), which is in Vista Volkswagen's PAI.
The Coconut Creek Site is in an area where existing dealerships representing other major brands (including brands against which the VW brand competes) are clustered. (Such clustering promotes inter-brand competition and makes it more convenient for consumers to shop for automobiles.) There are six such "automobile clusters" in Broward County and southern Palm Beach County, one each in the Delray Beach, the Pompano Beach, the Coconut Creek, the Plantation, the Ft. Lauderdale, and the Hollywood/Davie/Pembroke Pines areas. In 1997, these clusters generated the following new vehicle sales: Delray Beach area cluster: 22,270 units; Pompano Beach area cluster: 28,281 units; Coconut Creek area cluster: 29,602 units; Plantation area cluster: 24,225 units; Ft. Lauderdale area cluster: 16,968 units; and Hollywood/Davie/Pembroke Pines area cluster: 31,449 units.
VWoA is presently represented in only three of these six "automobile clusters": the Plantation area cluster (where Gunther Volkswagen is located); the Pompano Beach area cluster
(where Vista Volkswagen is located); and the Delray Beach area cluster (where Borton Volkswagen is located).
The three existing VW dealerships closest to the Coconut Creek Site are Vista Volkswagen, which is 6.9 miles away, Gunther Volkswagen, which is 12.7 miles away, and Borton Volkswagen, which is 16.3 miles away. (There are existing dealerships in the Coconut Creek area representing brands other than VW (Chevrolet, Dodge, Ford, Lincoln Mercury, Mazda, Mitsubishi, and Toyota) that are 6.9 miles or less from their closest intrabrand competitor.) The driving time between the Coconut Creek Site and Gunther Volkswagen is anywhere between 26 and 40 to 45 minutes (depending on traffic). It takes from approximately 17 minutes to 30 to 35 minutes (depending on traffic) to drive from the Coconut Creek Site east to Vista Volkswagen. East-west movement in Broward County has become increasingly difficult over the years as the western portion of the county has become more densely populated. As a result, consumers in Broward County tend to move in a north-south, rather than an east-west, direction to make their vehicle purchases.
On March 16, 1998, after a period of negotiation and the exchange of draft agreements, VWoA sent the following letter of understanding to Mr. Gunther and Casey Gunther: 9/
This letter will summarize our understanding of the actions to which you and Volkswagen of America, Inc. ("VWoA") are prepared to commit to establish a new, exclusive Volkswagen dealership for the Gunther organization ("Gunther") in Coconut Creek, FL. The
following bullet points are a recap of our meeting on January 30, 1998, and include the following.
In light of what we believe to be the potential growth in this market, it is the intent of VWoA to designate Coconut Creek as an open point and to construct a new dealership facility on the property owned by VWoA in Coconut Creek. While the building architecture will be based on the new Volkswagen Corporate Design guidelines, VWoA agrees to seek your input into the size of the building and land requirements needed to operate the dealership. The actual facility construction costs are estimated to be approximately $100 per square foot, but this may vary depending on local requirements and conditions.
VWoA will defend its right to designate Coconut Creek as an open point in the event that another dealer in the market protests VWoA's action.
Once the facility is completed, VWoA and Gunther will enter into a lease agreement for the land and building. The annual lease will be negotiated based on the cost to purchase the land used by the dealership, the final facility construction costs and local market value.
Prior to entering into a new lease for the Coconut Creek dealership, Gunther will have purchased or entered into an intent to purchase from VWoA the existing Gunther Volkswagen, Inc. 10/ building and real property located in Ft. Lauderdale, FL. 11/
It is understood by both parties that it will take time to establish service and parts business at the new point in Coconut Creek, which business will be an integral part of the Volkswagen operations at that facility.
The parties further understand that to establish that business will require sufficient New and Used Vehicle sales volumes to generate a gross profit reasonably sufficient to support the facility lease.
Because this will be a new point, and because at this time there is not an established sales rate for the Coconut Creek market, VWoA agrees to establish annual new vehicle planning volumes in the following manner:
At a minimum, an annual new vehicle planning volume will equal one percent (1%) of the national retail sales objective for the respective year. By way of example only, if the national new vehicle retail objective for a given year is 200,000 vehicles, the planning volume for Coconut Creek would be 2,000 vehicles. 12/
This method of calculating planning volumes will remain in effect for the first three years of operation of the new Coconut Creek point. After the third year, the dealership's new vehicle planning volume will be calculated in the same manner then used by VWoA to establish the planning volume for every Volkswagen dealer.
After the first year of operation, the dealership's annual planning volume may be set at a level higher than the calculated 1% of national retail objective if supported by actual retail sales rates at the dealership.
All requirements as delineated in the then current Volkswagen Dealer Agreement, Standard Provisions and Operating Standards shall apply to your appointment as a Volkswagen dealer in Coconut Creek.
In the event that Gunther elects not to pursue this opportunity to operate an exclusive Volkswagen dealership in Coconut Creek, then Gunther (a) acknowledges VWoA's intent to designate Coconut Creek as an open point and (b) agrees to waive its right to protest the appointment of another dealer operator in Coconut Creek.
As previously mentioned, this letter is intended to confirm issues we discussed in January. If you are in agreement with the above, please sign the attached copy of this letter and return it to me. Once we receive
the executed copy, we will file the necessary documents with the city and state to obtain their approvals to move forward with our plans.
This is an exciting opportunity for both Volkswagen and the Gunther organization, 13/ and we look forward to working closely with you as we get this project underway. Please feel free to give me a call if you have any questions.
Mr. Gunther and Casey Gunther both signed this letter on March 25, 1998, indicating that they "concur[red]" with the representations made in the letter.
VWoA customarily makes special arrangements concerning allocation of vehicles, like those set forth in the letter of understanding signed by Mr. Gunther and Casey Gunther, with dealers operating newly created VW dealerships to "get the dealership[s] going." This is a reasonable business practice.
Following the execution of this letter of understanding, Debra L. Kingsbury, Esquire, VWoA's attorney, sent the following letter, dated April 2, 1998, to Ronald Reynolds, the Administrator of the Department's Dealer License Section:
Dear Mr. Reynolds:
Pursuant to the requirements of Florida Statutes, Section 320.642, notice is hereby given that Volkswagen of America, Inc. ("VWoA") intends to establish Gunther Motor Company as a dealership for the sale of Volkswagen vehicles at Block 89, Lots 22 and 23, Coconut Creek, Broward County, Florida 33073. This vacant property is on the northeast corner of State Rd. 441 and Collum Rd. VWoA intends to engage in business with Gunther as a dealership on or after April 1, 1999, assuming that no protest is filed.
The dealer(s) of the same line-make vehicles in the county where the new dealership will be located and all counties adjoining that county are as follows:
County
Palm Beach County Borton Volkswagen
2201 N. Federal Highway Delray Beach, FL 33483
Palm Beach Volkswagen 6870 Okeechobee Blvd.
West Palm Beach, FL 33415
Schumacher Automotive 3720 Northlake Blvd. Lake Park, FL 33403
Broward County Vista Volkswagen
700 N. Federal Highway Pompano, Beach, FL 33062
Gunther Volkswagen 1660 S. State Road 7
Ft. Lauderdale, FL 33317 Collier County
A+ Car World
601 Airport Pulling Rd. Naples, FL 33942
Dade County
Deel Volkswagen 3650 Bird Rd.
Miami, FL 33133
South Motors of Dade County 16125 South Dixie Highway Miami, FL 33157
Esserman Volkswagen 16825 NW 57th Ave.
Miami, FL 33055
The names and address of the dealer-operator and principal investors of Gunther Motor Company are:
Dealer-Operator
Joseph F. Gunther, Jr. Principal Investors
Joseph F. Gunther, Jr. 1660 S. State Road 7
Ft. Lauderdale, FL 33317
If you have questions or require additional information, please do not hesitate to let me know.
To the extent that Ms. Kingsbury's letter reflected that Joseph F. Gunther, Jr., would be the "dealer-operator" of the dealership VWoA proposed to establish in Coconut Creek, the letter was inconsistent with the representations made in the March 16, 1998, letter of understanding VWoA had sent to Mr. Gunther and Casey Gunther that the "dealer-operator" of this proposed dealership would be the entire "Gunther organization"
(that is, the corporate entity which was owned by Mr. Gunther and his three sons, each of whom had an ownership interest in excess of 10%). 14/
By letter dated April 22, 1998, Mr. Reynolds notified Ms. Kingsbury that a "notice of publication to establish a franchise for Gunther Motor Company" was "published in the Florida Administrative Weekly on April 17, 1998." A copy of the "notice of publication" was enclosed, and it read as follows:
Pursuant to Section 320.642, Florida Statutes, Volkswagen of America, Inc.
("VWoA"), intends to allow the establishment of Gunther Motor Company, as a dealership for the sale of Volkswagen vehicles, at Block 89, Lots 22 and 23. This vacant property is on the northeast corner of State Road 441 and Collum Road, Coconut Creek (Broward County), Florida 33073, on or after April 1, 1999.
The name and address of the dealer operator(s) and principal investor(s) of Gunther Motor Company is Joseph F. Gunther, Jr., 1660 S. State Road 7, Fort Lauderdale, Florida 33317.
The notice indicates an intent to establish the new point location in a county of more than 300,000 population, according to the latest population estimates of the University of Florida, Bureau of Economic and Business Research.
Certain dealerships of the same line-make may have standing, pursuant to Section 320.642, Florida Statutes, to file a petition or complaint protesting the application.
Written petitions or complaints must be received by the Department of Highway Safety and Motor Vehicles within 30 days of the date of the publication of this notice and must be submitted to: Mr. Ronald D. Reynolds, Administrator, Dealer License Section, Department of Highway Safety and Motor Vehicles, Room A-312, Neil Kirkman Building, 2900 Apalachee Parkway, Tallahassee, Florida 32399-0635.
A copy of such petition or complaint must also be sent by U.S. Mail to: Debra L. Kingsbury, Attorney, Volkswagen of America, Inc., 3800 Hamlin Road, Auburn Hills, MI 48326.
If no petitions or complaints are received within 30 days of the date of publication, a final order will be issued by the Department of Highway Safety and Motor Vehicles approving the establishment of the dealership, subject to the applicant's
compliance with the provisions of Chapter 320, Florida Statutes.
As noted above, in 1998, including the time when Ms. Kingsbury wrote to Mr. Reynolds and when the April 17, 1998, edition of the Florida Administrative Weekly was published, the corporate entity that is now known as Gunther Motor Company of Plantation, Inc., was known as Gunther Motor Company. It was not until July 15, 1999, that its name was changed to its present name. On that same day, July 15, 1999, a new Florida corporation, named Gunther Motor Company and having Mr. Gunther as its sole shareholder, was formed.
If an additional VW dealership is established on the Coconut Creek Site (Proposed Dealership), it would be assigned a PAI consisting of zip codes that are now included in the PAIs of existing VW dealerships which are located further away from the centroids of these zip codes than is the Coconut Creek Site. (The Proposed Dealership's PAI will be referred to herein as the "Coconut Creek PAI.")
In 1998, 782 new retail VWs were registered in what would have been the Coconut Creek PAI had the Proposed Dealership been in operation that year. (Only Gunther Volkswagen's PAI (with 1642) and Deel Volkswagen's PAI (with 942) had more than 782 new retail VW registrations that year.) Of these 782 vehicles, 327 were sold by Gunther Volkswagen (constituting approximately 13% of its VW sales), 219 were sold by Vista Volkswagen (constituting approximately 30% of its VW sales), and
113 were sold by Borton Volkswagen (constituting approximately 20% of its VW sales).
VWoA takes the position in this proceeding that it is not adequately represented in the "community or territory" in which the Proposed Dealership is located. To evaluate the merits of this claim, it is first necessary to identify this "community or territory."
VWoA and Vista agree, and the undersigned finds, that the relevant "community or territory" in the instant case (Comm/Terr) consists of the PAIs now assigned to Gunther Volkswagen and Vista Volkswagen (the two existing VW dealerships in Broward County) and to Borton Volkswagen (which is the southernmost VW dealership in Palm Beach County). In 1998, there was a total of 3,371 new retail VWs registered in the Comm/Terr.
While there is no dispute regarding the identity of the relevant "community or territory" in the instant case, VWoA and Vista are not in agreement as to the standard that should be used to measure the performance of VWoA's dealership network in the Comm/Terr.
Dealership network performance is generally assessed based upon the "market share" or "market penetration" (which are synonymous terms) achieved by the brand in the market in question during the applicable time period, compared to the "market share" or "market penetration" the brand was "reasonably expected" to achieve. ("Market share" or "market penetration" is expressed as
a percentage, and it represents a brand's share of the total number of new vehicle registrations in the market.)
A "reasonably expected" "market share" or "market penetration" for the VW brand in the Comm/Terr may be determined by: (a) selecting an appropriate comparison market area separate from the Comm/Terr (but preferably in the same local area) where the brand appears not to be inadequately represented; (b) ascertaining the brand’s "market share" or "market penetration" in that comparison market area; and (c) utilizing a process called "segmentation analysis" to account for any differences in consumer preferences and demographic characteristics that may exist between the comparison market area and the Comm/Terr.
VWoA suggests, and the undersigned agrees, that it is reasonable and appropriate to assess VWoA's performance in the Comm/Terr by comparing it with VWoA's performance in the PAIs for Schumacher Volkswagen and Palm Beach Volkswagen (Palm Beach PAIs), as segment adjusted (Palm Beach Standard). 15/
The undersigned rejects Vista's contention that, to properly evaluate VWoA's performance in the Comm/Terr, VWoA's "market share" or "market penetration" in the Comm/Terr should be compared, not with the Palm Beach Standard, but "with [VWoA's] average penetration in the U.S. major metros, the Southeast major metros, and the Florida major metros" (Vista's Approach).
Vista's Approach does not take into account, or make adjustments for, any consumer preferences, such as import bias, 16/ and
demographic characteristics that may distinguish the Comm/Terr from the "average" "metro" market in the United States, in the southeastern United States, and in Florida. Moreover, Vista's Approach fails to take into consideration that VWoA has an incomplete national dealership network and is inadequately represented in various markets included in "the U.S. major metros, the Southeast major metros, and the Florida major metros." As a result, Vista's Approach yields a standard that, unlike the Palm Beach Standard, is too conservative to reflect a "reasonably expected" "market share" or "market penetration" for the Comm/Terr.
Employing the Palm Beach Standard (as segment adjusted), the "reasonably expected" "market shares" or "market penetrations" in the Comm/Terr and the Coconut Creek PAI for the VW brand for the years 1995, 1996, 1997, and 1998 were as follows: Comm/Terr: 1995- 1.9%, 1996- 3.5%, 1997- 3.5%, and 1998- 6.2%; and Coconut Creek PAI: 1995- 1.8%, 1996- 3.5%, 1997- 3.4%, and 1998- 6.1%. The actual "market shares" or "market penetrations" in the Comm/Terr and the Coconut Creek PAI for the VW brand for these years were as follows: Comm/Terr: 1995- 2.2% (which was more than "reasonably expected"), 1996- 3.8% (which was more than "reasonably expected"), 1997-3.2% (which was less than "reasonably expected"), and 1998- 5.4% (which was less than "reasonably expected," but more than VWoA's "average penetration in the U.S. major metros [4.6%], the Southeast major metros
[4.4%], and the Florida major metros [4.4%]"); and Coconut Creek PAI: 1995- 2.0% (which was more than "reasonably expected"), 1996- 3.2% (which was less than "reasonably expected"), 1997- 2.8% (which was less than "reasonably expected"), and 1998- 4.6% (which was less than "reasonably expected," but the same as "the average penetration in the U.S. major market metros" and more than the "average penetration in the . . . Southeast major metros, and the Florida major metros"). Accordingly, for every full year after 1996, VWoA's "market share" or "market penetration" in the Comm/Terr has been less than "reasonably expected," and for every full year after 1995, VWoA's "market share" or "market penetration" in the Coconut Creek PAI has been less than "reasonably expected."
Comparing VWoA's actual versus its "reasonably expected" "market share" or "market penetration" in the Comm/Terr and the Coconut Creek PAI reveals the "retail registration effectiveness" of its dealership network in those markets. The "retail registration effectiveness" of VWoA's dealership network in the Comm/Terr in 1995, 1996, 1997, and 1998 was 119%, 108.1%, 93%, and 87.1%, respectively. The "retail registration effectiveness" of VWoA's dealership network in the Coconut Creek PAI during those years was 111.6%, 93.4%, 84%, and 76.3%, respectively. Accordingly, for every full year after 1995, the last year that VWoA was represented by four dealerships in the Comm/Terr, the "retail registration effectiveness" of VWoA's
dealership network in the Comm/Terr and the Coconut Creek PAI has declined.
During this period of decline in VWoA's "retail registration effectiveness" in the Comm/Terr and the Coconut Creek PAI, demographic factors in these markets, insofar as retail vehicle sales are concerned, have been favorable. In fact, such sales increased in absolute terms in the Comm/Terr in 1996, 1997, and 1998 (from 1,367 in 1995, to 1,715 in 1996, to 2,341 in 1997, to 3,902 in 1998), but not enough in 1997 and 1998 to meet reasonable expectations with respect to "market share" or "market penetration" (which measures a brand's performance relative to other brands).
The likely cause of VWoA's recent "retail registration [in]effectiveness" in the Comm/Terr is the absence of an adequate number of VW dealerships located within its boundaries (which negatively impacts consumer convenience). There are 132 franchised dealerships (of all brands) in the Comm/Terr. Only three (or 2.3%) of these dealerships are VW dealerships. (The Comm/Terr has had only three VW dealerships since the closing of Arnie Smith Volkswagen in or about July of 1995.) In contrast, in the Palm Beach PAIs, 4% of the franchised dealerships are VW dealerships
It does not appear that the recent "retail registration [in]effectiveness" in the Comm/Terr has been caused by the supply shortages of VW product (that have led to the creation of
"waiting lists" for certain types of VW vehicles) inasmuch as there is no indication that such supply shortages existed only in the Comm/Terr and were not present elsewhere (including, most significantly, in the Palm Beach PAIs).
Having identified the cause of VWoA's recent "retail registration [in]effectiveness" in the Comm/Terr as an insufficient number of VW dealerships, the solution to this problem is obvious: the addition of at least another VW dealership in the Comm/Terr. The Coconut Creek area cluster (where the Coconut Creek Site is located) is an appropriate location for this additional dealership.
Relocating one of the existing VW dealerships in the Comm/Terr to the Coconut Creek area would not solve the "retail registration effectiveness" problem that VWoA is experiencing in the Comm/Terr inasmuch it would still leave VWoA with an inadequate share of the franchised dealerships in the Comm/Terr.
The establishment of an additional VW dealership on the Coconut Creek site would benefit not only VWoA (by increasing its VW sales and enabling it to attain greater "market share" or "market penetration" in the Comm/Terr than it would with just three dealerships in the Comm/Terr). Consumers, particularly those in the Coconut Creek PAI (Coconut Creek consumers), would benefit as well. At present, with three VW dealerships in the Comm/Terr (none of which is located in the Coconut Creek area) Coconut Creek consumers, on the average, have to travel a further
distance (8.6 miles) to buy new VWs (or to have their VWs serviced or repaired) than they do to purchase (or have serviced or repaired) vehicles of any of the 27 major brands that are represented in the Coconut Creek PAI. To purchase (or have serviced or repaired) vehicles manufactured by VAG's and VWoA's principal import competitors, Honda, Mitsubishi, Toyota, Mazda, and Nissan, these consumers have to travel, on the average, 4.1, 4.4, 4.4, 4.6, and 4.8 miles, respectively. If the Proposed Dealership is established on the Coconut Creek Site, Coconut Creek consumers would, on the average, be 4.6 miles away from a VW dealership.
The establishment of the Proposed Dealership would not only reduce the distance Coconut Creek consumers, on the average, have to travel to get to a VW dealership, it would also increase the number of service stalls available in the Coconut Creek PAI to service and repair VW vehicles. These additional service stalls are badly needed. For example, consumers wanting to have their vehicles serviced or repaired at Gunther Volkswagen (which has 17 service stalls, four more than the number of stalls Vista Volkswagen has that are completely devoted to VW service and repair 17/), must wait, on average, a minimum of two weeks from the time they make an appointment before the dealership is able to service or repair their vehicles. If there is not an increase in the number of service stalls in the area, as VW sales rise, Coconut Creek PAI VW owners seeking to have their vehicles
serviced will face even greater delays and resulting inconvenience.
Consumers would also benefit from the increase in interbrand competition and intrabrand competition (among VW dealerships) that would occur as a result of the establishment of an additional VW dealership on the Coconut Creek Site. 18/
The benefits VWoA and consumers would derive from the establishment of the Proposed Dealership would not come at the expense of the existing VW dealers in the Comm/Terr, if these existing dealerships were to respond competitively to a new intrabrand competitor in the market. It is reasonable to anticipate that these dealerships would respond in such a competitive manner and that, among other things, they would increase their marketing efforts in the Comm/Terr. Such increased marketing efforts, along with the addition of a fourth VW dealership in the Comm/Terr, would produce an increased awareness of the VW brand, which, given the significant untapped potential of the brand in the Comm/Terr, would enable each of the existing dealerships, including Vista Volkswagen, to increase its VW sales.
Indeed, even if the positive impact (of an additional VW dealership in the Comm/Terr) on consumer demand for the VW brand were disregarded, the opportunity (in terms of VW sales) presently available in the Comm/Terr (that is, the opportunity that the existing VW dealerships have not taken advantage of and
therefore have "lost," hereinafter referred to as "lost opportunity" would be sufficient to support a fourth VW dealership in the Comm/Terr and, at the same time, allow the three existing VW dealerships to increase their VW sales in the Comm/Terr inasmuch as this "lost opportunity" in the Comm/Terr is significantly greater than the number of VW sales that it is reasonable to expect the Proposed Dealership would make to Comm/Terr consumers.
Vista has made a significant investment ($3,311,971.00 as of October 1998) to perform its obligations under its dealer agreement with VWoA (with which it is in substantial compliance). The establishment of the Proposed Dealership, however, would not cause Vista to be deprived of a fair return on its investment, nor would it have "a significant and unfair negative financial impact on Vista," as Vista claims in its Proposed Recommended Order.
While it is true that the size of Vista Volkswagen's PAI would be reduced by the addition of a VW dealership on the Coconut Creek Site, having a smaller PAI 20/ would not have any adverse impact on Vista's VW business if Vista were to respond in an effective, competitive manner 21/ and aggressively take advantage of the opportunity that would be available in the Comm/Terr as a whole 22/ (which, as noted above, would be sufficient to support four dealerships), with its efforts being focused upon the geographic areas closest to its dealership.
There is no reason to believe that Vista would not be able to respond in such a fashion and offset any loss of Coconut Creek consumer business that it might suffer as a result of the establishment of the Proposed Dealership with an increase in business from consumers residing in its newly configured PAI and in other areas outside of the Coconut Creek PAI.
There is no evidence that VWoA has unreasonably denied Vista opportunities for growth within the Miami Metro market.
The establishment of the Proposed Dealership appears to be warranted and justified based upon present and anticipated economic and marketing conditions in the Comm/Terr.
CONCLUSIONS OF LAW
VWoA is seeking the Department's approval of its proposal to establish the Proposed Dealership. It is seeking such approval pursuant to Section 320.642, Florida Statutes, which provides as follows:
Any licensee who proposes to establish an additional motor vehicle dealership or permit the relocation of an existing dealer to a location within a community or territory where the same line-make vehicle is presently represented by a franchised motor vehicle dealer or dealers shall give written notice of its intention by certified mail to the department. Such notice shall state:
The specific location at which the additional or relocated motor vehicle dealership will be established.
The date on or after which the licensee intends to be engaged in business with the additional or relocated motor vehicle dealer at the proposed location.
The identity of all motor vehicle dealers who are franchised to sell the same line-make vehicle with licensed locations in the county or any contiguous county to the county where the additional or relocated motor vehicle dealer is proposed to be located.
The names and addresses of the dealer- operator and principal investors in the proposed additional or relocated motor vehicle dealership.
Immediately upon receipt of such notice the department shall cause a notice to be published in the Florida Administrative Weekly. The published notice shall state that a petition or complaint by any dealer with standing to protest pursuant to subsection (3) must be filed not more than 30 days from the date of publication of the notice in the Florida Administrative Weekly. The published notice shall describe and identify the proposed dealership sought to be licensed, and the department shall cause a copy of the notice to be mailed to those dealers identified in the licensee's notice under paragraph (c).
(2)(a) An application for a motor vehicle dealer license in any community or territory shall be denied when:
A timely protest is filed by a presently existing franchised motor vehicle dealer with standing to protest as defined in subsection (3); and
The licensee fails to show 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 proof in establishing inadequate representation shall be on the licensee. 23/
(b) In determining whether the existing franchised motor vehicle dealer or dealers are providing adequate representation in the community or territory for the line-make, the department may consider evidence which may include, but is not limited to:
The impact of the establishment of the proposed or relocated dealer on the consumers, public interest, existing dealers, and the licensee; provided, however, that financial impact may only be considered with respect to the protesting dealer or dealers.
The size and permanency of investment reasonably made and reasonable obligations incurred by the existing dealer or dealers to perform their obligations under the dealer agreement.
The reasonably expected market penetration of the line-make motor vehicle for the community or territory involved, after consideration of all factors which may affect said penetration, including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, or other factors affecting sales to consumers of the community or territory.
Any actions by the licensees in denying its existing dealer or dealers of the same line-make the opportunity for reasonable growth, market expansion, or relocation, including the availability of line-make vehicles in keeping with the reasonable expectations of the licensee in providing an adequate number of dealers in the community or territory.
Any attempts by the licensee to coerce the existing dealer or dealers into consenting to additional or relocated franchises of the same line-make in the community or territory.
Distance, travel time, traffic patterns, and accessibility between the existing dealer
or dealers of the same line-make and the location of the proposed additional or relocated dealer.
Whether benefits to consumers will likely occur from the establishment or relocation of the dealership which the protesting dealer or dealers prove cannot be obtained by other geographic or demographic changes or expected changes in the community or territory.
Whether the protesting dealer or dealers are in substantial compliance with their dealer agreement.
Whether there is adequate interbrand and intrabrand competition with respect to said line-make in the community or territory and adequately convenient consumer care for the motor vehicles of the line-make, including the adequacy of sales and service facilities.
Whether the establishment or relocation of the proposed dealership appears to be warranted and justified based on economic and marketing conditions pertinent to dealers competing in the community or territory, including anticipated future changes.
The volume of registrations and service business transacted by the existing dealer or dealers of the same line-make in the relevant community or territory of the proposed dealership.
An existing franchised motor vehicle dealer or dealers shall have standing to protest a proposed additional or relocated motor vehicle dealer where the existing motor vehicle dealer or dealers have a franchise agreement for the same line-make vehicle to be sold by the proposed additional or relocated motor vehicle dealer and are physically located so as to meet or satisfy any of the following requirements or conditions:
If the proposed additional or relocated motor vehicle dealer is to be located in a county with a population of less than 300,000
according to the most recent data of the United States Census Bureau or the data of the Bureau of Economic and Business Research of the University of Florida:
The proposed additional or relocated motor vehicle dealer is to be located in the area designated or described as the area of responsibility, or such similarly designated area, including the entire area designated as a multiple-point area, in the franchise agreement or in any related document or commitment with the existing motor vehicle dealer or dealers of the same line-make as such agreement existed upon October 1, 1988;
The existing motor vehicle dealer or dealers of the same line-make have a licensed franchise location within a radius of 20 miles of the location of the proposed additional or relocated motor vehicle dealer; or
Any existing motor vehicle dealer or dealers of the same line-make can establish that during any 12-month period of the 36- month period preceding the filing of the licensee's application for the proposed dealership, such dealer or its predecessor made 25 percent of its retail sales of new motor vehicles to persons whose registered household addresses were located within a radius of 20 miles of the location of the proposed additional or relocated motor vehicle dealer; provided such existing dealer is located in the same county or any county contiguous to the county where the additional or relocated dealer is proposed to be located.
If the proposed additional or relocated motor vehicle dealer is to be located in a county with a population of more than 300,000 according to the most recent data of the United States Census Bureau or the data of the Bureau of Economic and Business Research of the University of Florida: 24/
Any existing motor vehicle dealer or dealers of the same line-make have a licensed
franchise location within a radius of 12.5 miles of the location of the proposed additional or relocated motor vehicle dealer; or
Any existing motor vehicle dealer or dealers of the same line-make can establish that during any 12-month period of the 36- month period preceding the filing of the licensee's application for the proposed dealership, such dealer or its predecessor made 25 percent of its retail sales of new motor vehicles to persons whose registered household addresses were located within a radius of 12.5 miles of the location of the proposed additional or relocated motor vehicle dealer; provided such existing dealer is located in the same county or any county contiguous to the county where the additional or relocated dealer is proposed to be located.
The department's decision to deny issuance of a license under this section shall remain in effect for a period of 12 months. The department shall not issue a license for the proposed additional or relocated motor vehicle dealer until a final decision by the department is rendered determining that the application for the motor vehicle dealer's license should be granted.
The opening or reopening of the same or a successor motor vehicle dealer within 12 months shall not be considered an additional motor vehicle dealer subject to protest within the meaning of this section, if:
The opening or reopening is within the same or an adjacent county, is within 2 miles of the former motor vehicle dealer location,
The proposed location is further from each existing dealer of the same line-make than the prior location is from each dealer of the same line-make within 25 miles of the new location,
The opening or reopening is within 6 miles of the prior location and, if any
existing motor vehicle dealer of the same line-make is located within 15 miles of the former location, the proposed location is no closer to any existing dealer of the same line-make, or
The opening or reopening is within 6 miles of the prior location and, if all existing motor vehicle dealers of the same line-make are beyond 15 miles of the former location, the proposed location is further than 15 miles from any existing motor vehicle dealer of the same line-make.
Any other such opening or reopening shall constitute an additional motor vehicle dealer within the meaning of this section.
Section 320.642, Florida Statues, is among the statutory provisions included in a portion of Chapter 320, Florida Statutes (Sections 320.61 through 320.70, Florida Statutes, which hereinafter will be referred to as the Act), that was intended by the Legislature "to protect the public health, safety, and welfare of the citizens of the state by regulating the licensing of motor vehicle dealers and manufacturers, maintaining competition, providing consumer protection and fair trade and providing minorities with opportunities for full participation as motor vehicle dealers."
Section 320.60, Florida Statutes, contains definitions of various words and terms used in the Act. It provides, in pertinent part, as follows:
Whenever used in ss. 320.61-320.70, unless the context otherwise requires, the following words and terms have the following meanings:
(1) "Agreement" or "franchise agreement" means a contract, franchise, new motor
vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a manufacturer, factory branch, distributor, or importer, and a motor vehicle dealer, pursuant to which the motor vehicle dealer is authorized to transact business pertaining to motor vehicles of a particular line-make. . . .
"Department" means the Department of Highway Safety and Motor Vehicles.
"Distributor" means a person, resident or nonresident, who, in whole or in part, sells or distributes motor vehicles to motor vehicle dealers or who maintains distributor representatives.
"Importer" means any person who imports vehicles from a foreign country into the United States or into this state for the purpose of sale or lease.
"Licensee" means any person licensed or required to be licensed under s. 320.61. 25/
"Manufacturer" means any person, whether a resident or nonresident of this state, who manufactures or assembles motor vehicles or who manufactures or installs on previously assembled truck chassis special bodies or equipment which, when installed, form an integral part of the motor vehicle and which constitute a major manufacturing alteration. The term "manufacturer" includes a central or principal sales corporation or other entity through which, by contractual agreement or otherwise, it distributes its products.
"Motor vehicle" means any new automobile, motorcycle, or truck the equitable or legal title to which has never been transferred by a manufacturer, distributor, importer, or dealer to an ultimate purchaser.
(11)(a) "Motor vehicle dealer" means any person, firm, or corporation who, for commission, money or other things of value,
repairs or services motor vehicles or used motor vehicles pursuant to an agreement as defined in subsection (1), or sells, exchanges, buys, or rents, or offers, or attempts to negotiate a sale or exchange of any interest in, motor vehicles or who is engaged wholly or in part in the business of selling motor vehicles, whether or not such motor vehicles are owned by such person, firm, or corporation.
(b) Any person who repairs or services three or more motor vehicles or used motor vehicles as set forth in paragraph (a), or who buys, sells, or deals in three or more motor vehicles in any 12-month period or who offers or displays for sale three or more motor vehicles in any 12-month period shall be prima facie presumed to be a motor vehicle dealer. The terms "selling" and "sale" include lease-purchase transactions. . . .
(12) "Person" means any natural person, partnership, firm, corporation, association, joint venture, trust, or other legal entity.
. . .
(14) "Line-make vehicles" are those motor vehicles which are offered for sale, lease, or distribution under a common name, trademark, service mark, or brand name of the manufacturer of same.
VWoA is a "distributor" and "importer," as those terms are defined in Section 320.60, Florida Statutes, and used in the Act, and, as such, it is also a "licensee," as that term is defined in Section 320.60(8), Florida Statutes, and used in the Act (including Section 320.642, Florida Statutes). It distributes "line-make vehicles," as that term is defined in Section 320.60(14), Florida Statutes, and used in the Act, produced by VAG, which is a "manufacturer," as that term is
defined in Section 320.60(9), Florida Statutes, and used in the Act.
Gunther Plantation, Vista, and Borton are each a "motor vehicle dealer," as that term is defined in Section 320.60(11), Florida Statutes, and used in the Act. They each operate under an "agreement" or "franchise agreement" (as those terms are defined in Section 320.60(1), Florida Statutes, and used in the Act) with VWoA pursuant to which they sell and repair VW-brand vehicles manufactured by VAG and imported and distributed by VWoA.
At all times material to the instant case, the "principal investors" (as that term is used in Section 320.642, Florida Statutes, and defined in Rule 15C-7.004(2)(b)5, Florida Administrative Code, which is set out below) in Gunther Plantation have been Joseph F. Gunther, Jr. (51% interest), Michael Gunther (17% interest), Joseph F. Gunther, III (16% interest), and Casey Gunther (16% interest).
At all times subsequent to the formation of the new Gunther Motor Company on July 15, 1999, Joseph F. Gunther, Jr., has been its lone "principal investor" (as that term is used in Section 320.642, Florida Statutes, and defined in Rule 15C- 7.004(2)(b)5, Florida Administrative Code).
The Department has been delegated the authority "to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of [the Act]." Section 320.69, Florida Statutes.
Among the rules that the Department has adopted pursuant to this delegated authority is Rule 15C-7.004, Florida Administrative Code, 26/ which provides as follows:
Purpose and Scope. The purpose of this rule is to provide guidelines and standards for the filing of a notice of intent to establish an additional point franchise motor vehicle dealer license and to establish the requirements for filing a preliminary application for a franchise motor vehicle dealer license. The rule addresses the requirement for notifying potentially affected dealers of their rights and provides for the handling and disposition of advanced letters of commitment either protesting or not protesting the establishment of a dealership. The rule further provides time frames within which certain actions must occur, clarifies the conditions for licensing a supplemental location and for the relocation and reopening of existing dealerships. The rule also specifies the manner and time frames for the reporting of minority recruitment efforts.
Definitions
The words or terms "Department," "line- make," "dealer," and "minority dealer" as used in this rule shall have the meanings ascribed to them in Sections 320.60-320.70, Florida Statutes.
As used in this rule, the following words or terms shall have the meanings ascribed herein:
Applicant -- means a business seeking a license as a franchise motor vehicle dealership.
Contiguous county -- means a county having a point of common boundary with another county. Boundaries of counties which meet at a diagonal across the intersecting lines shall be deemed to be contiguous.
Licensee -- means a motor vehicle manufacturer, importer or distributor.
The terms petition, complaint, notice of protest, and letter of protest are interchangeable.
Principal investor -- means any person, firm or entity having a ten percent (10%) or more financial interest in a proposed dealership. In the case of a publicly held corporation, principal investor shall mean the individuals or entities who manage the corporation. 27/
Specific location -- means a sufficiently identified piece of property that can be described by a physical location address assigned by the United States Postal Service or by a legal description, or both. In those instances where an address is unavailable, the legal description shall refer to generally known public streets and highways, including the distance from the nearest major cross street, for example: "North side of
U.S. Highway 301, 1.3 miles east of intersection with State Road 60."
Filing of Licensee's Notice and Applicant's Preliminary Application. 28/
Simultaneously with the filing of the notice by the licensee required by Section 320.642(1), Florida Statutes, the applicant, which is not currently a licensed dealer at the proposed location, may file a preliminary application for a franchised motor vehicle dealer license on form HSMV 84011, Application For A License As A Motor Vehicle, Mobile Home or Recreational Vehicle Dealer, which is hereby adopted by reference, furnished by the Department. The filing of a preliminary application is optional but if filed 29/ the application shall be completed in the same manner as a final application, except that the following items are not required at the time of the filing of the preliminary application:
The physical inspection report of the facility completed by the Department.
The surety bond or irrevocable letter of credit.
Evidence of garage liability insurance.
Evidence of completion by a dealership representative of the training offered by the Department.
Evidence of registration for sales and use tax purposes with the Department of Revenue.
A true copy of the lease of the property on which the dealership is to be located, if applicable.
Evidence that a Federal Employer's Identification number has been applied for or obtained.
The following items must accompany the completed preliminary application:
A copy of the articles of incorporation to show that the corporate name has been reserved (if the business is to operate as a corporation).
Fingerprint cards for all owners/partners/officers/directors whose names appear on the application.
The initial application fee.
If the notice by the licensee proposes to add a line-make to a dealership not previously franchised for that line-make, the licensed dealer shall, simultaneously with the filing of the licensee's notice, file an application on form HSMV 84011, Application For A License As A Motor Vehicle, Mobile Home or Recreational Vehicle Dealer, which is hereby adopted by reference, provided by the Department to amend its license to add that line-make to its license.
1. If the notice by the licensee proposes a supplemental location to a currently licensed line-make dealership, the dealer shall, simultaneously with the filing of the licensee's notice, file an application for a supplemental license on form HSMV 84011, Application For A License As A Motor Vehicle, Mobile Home or Recreational Vehicle Dealer, which is hereby adopted by reference, provided by the Department in accordance with Section 320.27(5), Florida Statutes.
2. A supplemental license shall not be required of a dealer who desires to add to or expand its dealership to a contiguous piece of real estate. For the purpose of determining whether a piece of real estate is 'contiguous' with any other piece of real estate, as the term 'contiguous' is used in Section 320.27(5), Florida Statutes, intervening streets, highways, utility easements, drainage and stormwater canals, retaining ponds, and other similar public ways, shall not be considered, provided the parcel of real estate on which the added or expanded place of business is to be located is not more than 200 feet from the existing and licensed place of business. Parcels of real estate separated by limited access highways, navigable waterways or privately owned real estate shall not be considered "contiguous'" for purposes of this rule. A dealer who adds to or expands a business under these circumstances shall notify the dealer license section of the department, in writing, of such activity.
A notice by the licensee may not be amended in any manner which alters the specific location of the proposed dealership, nor may a preliminary filing of an application be amended to be inconsistent with the specific location contained in the notice. Alteration of a specific location requires the filing of a new notice and a new preliminary application. 30/
Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership.
If the license of an existing franchised motor vehicle dealer is revoked for any reason, or surrendered, an application for a license to permit the reopening of the same dealer or a successor dealer within twelve months of the license revocation or surrender shall not be considered the establishment of an additional dealership if one of the conditions set forth in Section 320.642(5) is met by the proposed dealer.
An application for change of address by an existing dealer under this section shall be filed on form HSMV 84712, Application For Change Of Location (Address) Of Dealer In Motor Vehicles, Mobile Homes Or Recreational Vehicles, which is hereby adopted by reference, provided by the Department. The dealer shall indicate which provision of Section 320.642(5), Florida Statutes, if any, it contends exempts the proposed location from consideration as an additional dealership.
An application for a dealership intended as a successor dealership shall be accompanied by a letter from the licensee clearly stating that the applicant is intended as a successor dealership and shall identify the prior dealership to be replaced.
Notice to Existing Dealers.
The notice transmitted to existing dealers in accordance with Section 320.642(1) shall include a general description of the requirements and instructions for the filing of petitions, complaints or notice protesting the establishment or relocation of a dealership including the address of the agency clerk designated for this purpose; and the date on which the notice was published in the Florida Administrative Weekly.
If the notice by the licensee proposes a relocation of an existing dealership or reopening of the same or of a successor dealership which does not qualify under one of the exemptions contained in Section 320.642(5), Florida Statutes, notice shall be
published in the Florida Administrative Weekly and mailed to all licensed dealers in compliance with Section 320.642(1), Florida Statutes, and this rule.
Filing of Petitions or Complaints by Existing Dealers.
Petitions or complaints protesting the establishment or relocation of dealerships may be filed only after the publication of the notice required in Section 320.642(1), Florida Statutes.
Petitions, complaints or notices protesting the establishment or relocation of a dealership must be filed with and received by the agency clerk not more than thirty calendar days from the date notice is published in the Florida Administrative Weekly.
Any petitions or complaints, or correspondence indicating any intent to file or not to file a petition or complaint, which are filed prior to publication of the notice shall be returned to the sender.
Hearing and Post-Hearing Procedures.
Upon receipt of a petition, complaint or notice protesting the establishment or relocation of a dealership, the Department shall transmit the petition or complaint to the Division of Administrative Hearings within the time specified in Section 120.57(1)(b)3., Florida Statutes. The Department shall request that hearing, pursuant to the requirements of Section 120.57(1), Florida Statutes, or other proceedings necessary for the disposition of the petition or complaint, be conducted with respect to all issues contained in Section 320.642, Florida Statutes.
Upon the issuance of a recommended order by the Division of Administrative Hearings, the parties shall have 20 days to file exceptions to the recommended order with the Department. Thereafter, the Department will
issue a final order determining whether the proposed additional or relocated dealership shall be approved or rejected. If approved, the final order shall state that the license sought by the applicant shall be granted upon compliance with all other applicable provisions of Chapter 320, Florida Statutes, and this rule.
The issuance of a final order with respect to the issues provided in Section 320.642, Florida Statutes, shall not constitute a finding by the Department that the applicant complies with the other requirements of Chapter 320, Florida Statutes.
If the proposed additional or relocated dealership is approved, construction on the dealership shall begin within twelve months of the date of final order. The applicant must complete construction and finalize its preliminary application for license within twenty-four months of the date of the final order. This period may be extended by the Department for good cause.
For the purposes of computation of the time limits imposed by this section, the filing of an appeal of the final order shall toll the running of the times provided until the final disposition of the appeal, including disposition of motions for rehearing or petitions for review to the Supreme Court of Florida. The filing of an appeal shall not interfere with the issuance of a license, if sought by the applicant, unless a stay is issued pursuant to applicable law.
Finalization of the application shall consist of furnishing all information and documents not required to be filed with the preliminary application.
Transfer, Assignment or Sale of Franchise Agreements.
Subsequent to the notification by a dealer to a licensee of a proposed transfer
of a franchise as required by Section 320.643, Florida Statutes, the proposed transferee may file a preliminary application with the Department.
This preliminary application shall fulfill all requirements of the final application with the exception of the provision of a copy of the franchise agreement between the proposed transferee and the licensee, a forfeiture statement by the transferor, an acceptance statement by the transferee, and the surrender of the license of the selling dealer.
The Department shall immediately commence processing the application and, upon completion of processing, shall indicate to the proposed transferee whether its license will be issued if the licensee approves the transfer and the transfer is consummated between the selling dealer and the transferee.
If the application complies with all requirements of law, it shall be issued, upon the consummation of the transfer, and the provision to the Department of:
a copy of the transferee's franchise with the licensee;
a forfeiture statement by the selling dealer;
an acceptance statement by the transferee; and
the license of the selling dealer.
Computation of Sales. For the purpose of computing sales in compliance with Section 320.642(3)(a)3. and Section 320.642(3)(b)2., the thirty-six month period shall be deemed to expire on the last day of the month preceding the month in which the notice of the licensee is published in the Florida Administrative Weekly.
Minority Recruitment.
At the time of applying for the renewal of a manufacturer, distributor or importer license, the licensee shall file an annual report with the Department of its efforts to add new minority dealer points. The report shall include a description of difficulties encountered in attempting to add new minority dealers under the provisions of Sections 320.60-320.70, Florida Statutes. The report shall be submitted on form HSMV 84020, Annual Report On Addition Of Minority Dealer Points, which is hereby adopted by reference, provided by the Department and shall accompany the application for renewal.
No renewal application shall be processed nor any license issued unless and until the minority recruitment report is submitted to the Department in the form prescribed.
Agency Clerk. The Agency Clerk for the filing of all documents under Sections 320.60 through 320.70, shall be the supervisor of the Dealer License Section, Room A-312, Neil Kirkman Building, 2900 Apalachee Parkway, Tallahassee, Florida 32399-0635.
Forms. All forms mentioned in or required by this rule may be obtained free of charge from the Department by contacting any License and Registration Inspector or any Regional Office of the Bureau of Licenses and Enforcement, Division of Motor Vehicles. Addresses and telephone numbers are available from the bureau, Room 308, 2900 Apalachee Parkway, Tallahassee, Florida 32399.
In the instant case, by letter dated April 2, 1998, VWoA provided the Department with written notice of its intention to establish the Proposed Dealership and thereby requested the Department to approve such proposed action pursuant to Section 320.642, Florida Statutes. (No "preliminary application" for a license to operate the Proposed Dealership was filed by the
proposed "dealer-operator" pursuant Section 320.27, Florida Statutes, in conjunction with the submission of VWoA's request for approval to establish the Proposed Dealership, nor was such a "preliminary application" required to be simultaneously filed pursuant to Rule 15C-7.004, Florida Administrative Code, inasmuch as the proposed "dealer-operator," Mr. Gunther, was not "currently a licensed [VW] dealer," either at the "proposed location" or elsewhere. 31/)
Upon receiving VWoA's April 2, 1998, letter, the Department, in accordance with Section 320.642(1), Florida Statutes, caused to be published in the April 17, 1998, edition of the Florida Administrative Weekly a notice of VWoA's intent to establish the Proposed Dealership. Vista (to whom the Department had mailed a copy of the notice on or about April 22, 1999) timely filed with the Department, on May 15, 1998, a "Petition or Complaint Protesting Establishment of [the Proposed] Dealership" (Protest). (There is no dispute concerning Vista's standing to file such a protest.) Vista's Protest was subsequently referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct an evidentiary hearing on the Protest and to thereafter issue an order recommending whether the Department should approve or reject the Proposed Dealership. See Rule 15C-7.004(7)(b), Florida Administrative Code ("Thereafter, the Department will issue a final order determining
whether the proposed additional or relocated dealership shall be approved or rejected.")
An Administrative Law Judge (the undersigned) was assigned to hear Vista's Protest, and an evidentiary hearing was held. At the hearing, VWoA presented evidence in an effort to meet its burden of proving, by a preponderance of the evidence, that it is not receiving "adequate representation" in the Comm/Terr, and Vista offered evidence attempting to counter VWoA's evidentiary presentation. See Florida Department of Health and Rehabilitative Services v. Career Service Commission,
289 So. 2d. 412, 415 (Fla. 4th DCA 1974)(generally, burden of proof before an administrative agency is by a preponderance of the evidence).
During the initial stages of the hearing, Vista raised the "threshold" question of whether the Department has jurisdiction to consider VWoA's request for approval of its proposal to establish an additional dealership in the Comm/Terr. Vista argued (and has reasserted in its Proposed Recommended Order) that the Department lacks such jurisdiction because the written notice that VWoA provided to the Department concerning VWoA's intent to establish the Proposed Dealership (as well as the subsequent notice concerning the matter that the Department caused to be published in the Florida Administrative Weekly, which repeated the information contained in VWoA's notice) was "incorrect with respect to the identification of [the Proposed
Dealership's] principal investors" inasmuch as it "is undisputed that three persons, in addition to Mr. Gunther, who was identified as the sole principal investor in the notice, own more than ten percent interest in Gunther Plantation, the noticed proposed dealer." Borton has made the same argument.
The undersigned disagrees with Vista and Borton that "VWoA's notice did not meet the statutory requirements [dealing with disclosure of the identity of the principal investor(s) of the proposed additional dealership] and so was insufficient to 'trigger' the procedures provided for in Section 320.642. Florida Statues." Rather, it appears that VWoA's notice contained all of the information required by Section 320.642(1), Florida Statutes.
In its notice, VWoA announced its intention to, in the future, establish an additional franchised dealership in the Comm/Terr, and provided the following information regarding the dealership: the specific location at which it intended to establish the dealership (on the northeast corner of 441 and Collum Road in Coconut Creek in Broward County), as required by Section 320.642(1)(a), Florida Statutes; the date on or after which it anticipated the dealership would be open for business (April 1, 1999), as required by Section 320.642(1)(b), Florida Statutes; and the name and address of the dealer who would be operating the dealership (Mr. Gunther) and the name and address of the person who would be the sole "principal investor" in the dealership (Mr. Gunther), as required by Section 320.642(1)(d),
Florida Statutes. This was the only information that VWoA was required, pursuant to Section 320.642(1), Florida Statutes, to provide about the Proposed Dealership. Although not required to do so, VWoA, in its notice, gratuitously added the proposed name of the Proposed Dealership (Gunther Motor Company, which was, at the time, also the name of the corporation that was the "dealer- operator" of Gunther Volkswagen, the principal investors of which were (and which remain) Mr. Gunther and his three sons). While the gratuitous inclusion of this additional information in VWoA's notice may have led Vista and Borton to conclude that the
"dealer-operator" of the Proposed Dealership would be that same corporate entity (which is now named Gunther Motor Company of Plantation, Inc.), the notice plainly stated that the "dealer- operator" would be Mr. Gunther. 32/ Accordingly, Vista's and Borton's argument that VWoA's notice was defective because it did not contain the names of all of the "principal investors" required by Section 320.642(1)(d), Florida Statues, is based upon the erroneous premise that the notice identified the corporation now known as Gunther Motor Company of Plantation, Inc. as the proposed "dealer-operator." Moreover, there is no requirement that, in a notice submitted to the Department pursuant to Section 320.642, Florida Statutes, those having a 10% or more ownership interest in the proposed dealership as of the time of the submittal of the notice be identified. The "principal investors" that must be listed in the notice are those (and only those) who
will have a 10% or more ownership interest in the dealership when (and if) the dealership is established. In the instant case, there is only one such proposed "principal investor," Mr.
Gunther, and he as identified as such in VWoA's notice, in accordance with the requirements of Section 320.642(1)(d), Florida Statutes.
In view of the foregoing, there appears to be no "notice-related" jurisdictional impediment to the Department's proceeding to consider whether to approve or reject VWoA's proposal (as described in its notice) to establish another franchised dealership in the Comm/Terr. 33/
Having considered and weighed the factors enumerated in Section 320.642(2), Florida Statutes, in light of the facts found herein, the undersigned concludes that VWoA has met its burden of proving by a preponderance of the evidence that it is not receiving adequate representation in the Comm/Terr. 34/
Accordingly, its proposal to establish an additional franchised dealership in the Comm/Terr, as described in the notice it submitted to the Department in accordance with Section 320.642(1), Florida Statutes, should be approved.
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 approving the proposal/application
of Volkswagen of America, Inc., to establish an additional dealership in the Coconut Creek area of Broward County.
DONE AND ENTERED this 17th day of December, 1999, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 17th day of December, 1999.
ENDNOTES
1/ Gunther Motor Company is the name of the additional dealership that Volkswagen of America, Inc., is seeking approval to establish. Joseph F. Gunther, Jr., is the proposed "dealer- operator" of this additional dealership.
2/ Although Peter G. Herman, Esquire, of the law firm of Tripp, Scott, Conklin and Smith, filed a notice of appearance on behalf of Gunther Motor Company on March 19, 1999, at no time did Mr.
Herman make an appearance at the final hearing, nor has he filed any pleading (other than his notice of appearance) in the instant case.
3/ Borton Motors, Inc., did not appear at the final hearing, but did file, through Mr. Adams, a Proposed Recommended Order.
4/ Gunther Motor Company neither signed this Prehearing Stipulation, nor submitted a separate proposed prehearing stipulation.
5/ Although initially marked for identification as one of VWoA's exhibits, this exhibit was offered into evidence by Respondent.
6/ VW sales in the United States had increased every year from 1954 (when 8,895 VWs were sold, through a network of 136 dealers) to 1970.
7/ Esserman Volkswagen began selling VWs in July of 1998.
8/ Although Vista, on occasion, has made requests for additional vehicles for its VW dealership that VWoA has denied, there has been no showing that VWoA's denial of these requests constituted unfair, disparate treatment; nor is there any evidence that Vista Volkswagen has ever run out of new vehicle inventory.
9/ The letter was addressed as follows: Mr. Joseph Gunther
Mr. Casey Gunther
Gunther Volkswagen, Inc. 1600 S. State Road 7
Fort Lauderdale, FL 33317
10/ Gunther Volkswagen, Inc., had changed its name to Gunther Motor Company approximately seven years before this letter of understanding was written (and it is now known as Gunther Motor Company of Plantation, Inc.).
11/ VWoA currently owns this property.
12/ VWoA's national "new vehicle retail objective" for the year 2000 is 348,000 units. Accordingly, applying the agreed-upon formula set forth in the letter of understanding, the planning volume for the proposed dealership for the year 2000 (assuming it began operations that year) would be 3,480 new vehicles, far more than the proposed dealership could reasonably be expected to sell in its first year of operation. The anticipated planning volumes for the year 2000 of the two existing VW dealerships in Broward County, Gunther Volkswagen and Vista Volkswagen, are 3,200 and 1,200 units, respectively. (The difference between Gunther Volkswagen's and Vista Volkswagen's planning volumes reflects the historical difference in the number of retail vehicle sales that they have made.)
13/ It is apparent from a reading of the entire letter, including the references to the "purchase from VWoA [of] the existing Gunther Volkswagen, Inc. building and real property" and to "Gunther's" waiver of "its right to protest the appointment of another dealer operator in Coconut Creek," that the "Gunther organization" referred to in the letter was the corporate entity then known as Gunther Motor Company (and which now is known as Gunther Motor Company of Plantation, Inc.).
14/ Whether Ms. Kingsbury's designation of Mr. Gunther as the proposed "dealer-operator" was inadvertent or intentional is of no particular significance inasmuch as it is the proposal described in Ms. Kingsbury's letter (which VWoA has not taken any action to modify or withdraw), not what Ms. Kingsbury or VWoA may have intended (at the time of the submittal of the letter) to propose, that the Department must approve or reject in the instant case.
15/ Segmentation adjustment is necessary due to the greater popularity of mid-size vehicles in the Comm/Terr and the greater popularity of vans in the Palm Beach PAIs.
16/ Consumers in Broward County, in general, have a strong preference for imports.
17/ Vista has plans to increase the service capacity at Vista Volkswagen when its BMW dealership is relocated.
18/ Intrabrand competition will increase notwithstanding that Mr. Gunther has a controlling interest in one of the three existing VW dealerships in the Comm/Terr. As VWoA's expert testified at hearing, Mr. Gunther, in operating the Proposed Dealership, "could not afford to be less competitive than any other owner of that outlet; otherwise [the Proposed Dealership] couldn't make its sales, not because of intrabrand competition, but because of interbrand competitors just eating his lunch, so to speak."
19/ Such "lost opportunity" consists of "gross registration losses" and "in-sell losses." "Gross registration losses" are the collective "lost" VW sales in those zip codes in the Comm/Terr having less than 100% "retail registration effectiveness," with no offset being made for "gained" VW sales in those zip codes in the Comm/Terr having more than 100% "retail registration effectiveness." "In-sell losses" are VW sales made to consumers in the Comm/Terr by dealerships located outside of the Comm/Terr.
20/ It appears that, as presently configured, Vista Volkswagen's PAI is too large for it (and the other existing VW dealerships) to cover effectively.
21/ The average Miami Metro dealership captures 52.3% of the new VW registrations in its own PAI and 16.9% of those in an adjacent PAI.
22/ There would be no prohibition against Vista taking advantage of (and it is unreasonable to assume that it would not take any advantage of) the opportunity existing outside the boundaries of
Vista Volkswagen's PAI, as it would be configured if the Proposed Dealership were established at the Coconut Creek Site.
23/ It is noteworthy that the Legislature has placed the burden of establishing inadequate representation only on the licensee and not on the proposed "dealer-operator." This supports the view that, in a proceeding to determine whether a licensee's proposal to establish an additional franchised dealership should be approved or rejected pursuant to Section 320.642, Florida Statutes, the proposed "dealer-operator" is a permissible, not an indispensable, party.
24/ Broward County is such a county.
25/ Section 320.61, Florida Statutes, provides as follows:
No manufacturer, factory branch, distributor, or importer (all sometimes referred to hereinafter as "licensee") shall engage in business in this state without a license therefor as provided in ss. 320.60-
320.70. No motor vehicle, foreign or domestic, may be sold, leased, or offered for sale or lease in this state unless the manufacturer, importer, or distributor of such motor vehicle, which issues an agreement to a motor vehicle dealer in this state, is licensed under ss. 320.60-320.70.
The department may prescribe an abbreviated application for renewal of a license if the licensee had previously filed an initial application pursuant to s. 320.63. The application for renewal shall include any information necessary to bring current the information required in the initial application.
All licenses shall be granted or refused within 30 days after application.
When a complaint of unfair cancellation of a dealer agreement is made by a motor vehicle dealer against a licensee and is in the process of being heard pursuant to ss. 320.60-320.70 by the department, no replacement application for such agreement shall be granted until a final decision is rendered by the department on the complaint of unfair cancellation.
Any manufacturer, distributor, or importer, who obtains a license under this section, is engaged in business in this state and is subject to the jurisdiction of the courts of this state pursuant to chapter 48. Any manufacturer not licensed under this section, who is a manufacturer of motor vehicles of a recognized line-make which are sold or leased in this state pursuant to a plan, system, or channel of distribution established, approved, authorized or known to the manufacturer, shall be subject to the jurisdiction of the courts of this state in any action seeking relief under or to enforce any of the remedies or penalties provided in ss. 320.60-320.70.
The requirement that motor vehicle dealers doing business in Florida obtain a license is found in Section 320.27, Florida Statutes, which is not among the statutory provisions included in the Act.
26/ Rule 15C-7.004, Florida Administrative Code, also implements Section 320.27(5), Florida Statutes (which requires licensed motor vehicle dealers to "obtain a supplemental license for each permanent additional place or places of business not contiguous to the premises for which the original license is issued.")
27/ Although subsection (2)(b) of Rule 15C-7.004, Florida Administrative Code, purports to define terms "used in this rule," the term "principal investor" (which is defined in subsection (2)(b)) is not found anywhere else in the rule. The term, however, does appear in the Act.
28/ It is the "licensee," as defined in subsection (2)(b)3 of the rule (that is, the "motor vehicle manufacturer, importer or distributor"), who submits the "notice " required by Section 320.642, Florida Statutes, and it is the "applicant," as defined in subsection (2)(b)1 of the rule (that is, the "business seeking a license as a franchise motor vehicle dealership"), who submits the "application" for such a license (which license the "applicant" must obtain, pursuant Section 320.27, Florida Statutes, before the "applicant" may operate the dealership).
29/ No such "preliminary application" has been filed in the instant case. The only "application" pending is that submitted by the "licensee," VWoA, requesting the approval of its proposal (as set forth in its April 2, 1998, letter to the Department) to establish an additional franchised dealership on the Coconut Creek Site.
30/ Applying the rule of construction that the express mention of one thing implies the exclusion of all others leads one to conclude that, according to Rule 15C-17.004, Florida Administrative Code, amendments to a licensee's proposal that do not alter the specific location of the proposed dealership are not absolutely forbidden. See PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988); Thayer v. State, 335 So. 2d 815, 817
(Fla. 1976); In re Ratliff's Estate, 188 So. 128, 133 (Fla.
1939); Williams v. State, 374 So. 2d 1086, 1087 (Fla. 2d DCA
1979); Devin v. City of Hollywood, 351 So. 2d 1022, 1025 (Fla.
4th DCA 1976).
31/ If the proposed "dealer-operator" had been Gunther Plantation (or, as Gunther Plantation was known at the time, Gunther Motor Company), Gunther Plantation, as the "dealer- operator" of an existing VW dealership, would have been required, pursuant to Rule 15C-7.004(3)(d)1., Florida Administrative Code, to "simultaneously with the filing of the licensee's [VWoA's] notice file an application for a supplemental license."
32/ It therefore would be improper to, and thus the undersigned will not, follow the suggestion made by Vista that the style of the instant case be changed to reflect that Gunther Plantation is the proposed "dealer-operator."
33/ Any approval that may be obtained from the Department as a result of this proceeding will relate to the specific proposal made by VWoA in its notice (from which VWoA will not be able to deviate in establishing the dealership), and will be subject to the proposed "dealer-operator" identified in the notice obtaining an appropriate license to operate the dealership pursuant to Section 320.27, Florida Statutes. See Mazda Motor of America v. Stewart Mazda, 1997 WL 1052426 (Fla. DOAH 1997)(Recommended Order).
34/ Having made this determination, it is unnecessary to, and therefore the undersigned will not, further determine whether the Coconut Creek PAI is, as VWoA suggests, an "identifiable plot" within the boundaries of the Comm/Terr in which VWoA is also being inadequately represented. See Bill Kelley Chevrolet, Inc. v. Calvin, 322 So. 2d 50 (Fla. 1st DCA 1975).
COPIES FURNISHED:
Richard S. Davis, Esquire Foley & Lardner
Phillips Point East Tower
777 South Flagler Drive, Suite 200 West Palm Beach, Florida 33401
James R. Vogler, Esquire Randall L. Oyler, Esquire Jason C. Turner, Esquire Foley & Lardner
One IBM Plaza
330 North Wabash Avenue, Suite 3300 Chicago, Illinois 60611
Debra L. Kingsbury Volkswagen of America, Inc. 3800 Hamlin Road
Auburn Hills, Michigan 48326
Joseph F. Gunther, Jr. Gunther Motor Company 1660 South State Road 7
Fort Lauderdale, Florida 33317
Peter G. Herman, Esquire
Tripp, Scott, Conklin and Smith
110 Southeast 6th Street, 15th Floor Fort Lauderdale, Florida 33302
John Forehand, Esquire Walter Forehand, Esquire Myers, Forehand & Fuller
402 Office Plaza Drive Tallahassee, Florida 32301
James D. Adams, Esquire Adams & Quinton, P.A.
7300 West Camino Real
Boca Raton, Florida 33433
Michael J. Alderman, Esquire Department of Highway Safety and
Motor Vehicles
Neil Kirkland Building, Room A432 Tallahassee, Florida 32399
Charles J. Brantley, Director Division of Motor Vehicles
Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500
Enoch Jon Whitney, General Counsel Division of Motor Vehicles
Neil Kirkman Building 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 | Proceedings |
|---|---|
| Mar. 08, 2000 | Final Order filed. |
| Jan. 28, 2000 | (R. Oyler) Petitioner`s Hearing Exhibit No. 61, Last page of Petitioner`s Hearing Exhibit No. 84, Petitioner`s Hearing Exhibit No. 87 w/cover letter filed. |
| Jan. 18, 2000 | Intervenor`s Exceptions to Recommended Order filed. |
| Dec. 28, 1999 | (J. Adams) Motion for Extension of Time to File Exceptions (filed via facsimile). |
| Dec. 17, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held January 19-21, and July 26-29, 1999. |
| Nov. 17, 1999 | Cases cited in Volkswagen of America, Inc.`s Proposed Recommended Order w/cover letter filed. |
| Nov. 16, 1999 | Disk (Volkswagen of America, Inc.`s Proposed Recommended Order); Exhibit 61 w/cover letter filed. |
| Nov. 15, 1999 | Petitioner Volkswagen of America, Inc.`s Proposed Recommended Order filed. |
| Nov. 12, 1999 | Respondent`s Proposed Recommended Order; Disk filed. |
| Nov. 12, 1999 | (J. Adams) Final Argument and Proposed Recommended Order of Intervenor, Borton Volkswagen filed. |
| Nov. 10, 1999 | Order sent out. (proposed recommended orders shall be filed by 11/12/99) |
| Nov. 09, 1999 | Volkswagen of America, Inc.`s Unopposed Motion for Extension of Time to File Proposed Recommended Order (filed via facsimile). |
| Oct. 28, 1999 | Order sent out. (proposed recommended orders shall be filed no later than 11/10/99) |
| Oct. 28, 1999 | Volkswagen of America, Inc.`s Second Unopposed Motion for Extension of Time to file Proposed Recommended Order (filed via facsimile). |
| Oct. 27, 1999 | Petitioner Volkswagen of America Inc.`s Admitted Hearing Exhibits (1 binder, tagged); Cover Letter filed. |
| Oct. 15, 1999 | Order sent out. (proposed recommended orders shall be filed no later than 11/1/99) |
| Oct. 14, 1999 | Volkswagen of America, Inc.`s Unopposed motion for Extension of Time to File Post-Hearing Memorandum (filed via facsimile). |
| Sep. 03, 1999 | Transcripts (Volumes VI, VII, VIII, IX, X, XI, X II, X III, tagged) filed. |
| Aug. 04, 1999 | (2 Notebooks) Respondent`s Exhibits filed. |
| Jul. 29, 1999 | Notice of Filing; (Volume 5) DOAH Court Reporter Final Hearing Transcript filed. |
| Jul. 26, 1999 | CASE STATUS: Hearing Held. |
| Jul. 26, 1999 | (W. Forehand) Re-Notice of Taking Telephonic Deposition filed. |
| Jul. 21, 1999 | (W. Forehand) Notice of Taking Telephonic Deposition filed. |
| Jun. 23, 1999 | (W. Forehand) Revised Notice of Taking Deposition filed. |
| Jun. 15, 1999 | (W. Forehand) Notice of Taking Deposition filed. |
| Jun. 15, 1999 | (W. Forehand) Notice of Taking Deposition filed. |
| May 27, 1999 | (W. Forehand) Notice of Taking Deposition filed. |
| May 06, 1999 | Order sent out. (hearing set for July 26 through 29, 1999; 9:15am; Tallahassee) |
| Apr. 26, 1999 | Letter to Judge Lerner from John Forehand (RE: available dates) (filed via facsimile). |
| Apr. 16, 1999 | (Respondent) Motion for Continuance filed. |
| Apr. 12, 1999 | (J. Adams) Response to Order (filed via facsimile). |
| Mar. 24, 1999 | Order sent out. (stipulation for substitution of counsel will be treated as a notice of Appearance filed by Mr. Herman) |
| Mar. 19, 1999 | Notice of Change of Location of Hearing sent out. (hearing will be held at DHSMV, beginning at 9:15am each day) |
| Mar. 19, 1999 | (T. Guzda, P. Herman) Stipulation for Substitution of Counsel; Order (for Judge Signature) filed. |
| Mar. 09, 1999 | Order sent out. (Petitioner ordered to file a new notice reflecting the investors in proposed additional point is granted) |
| Mar. 03, 1999 | (J. Adams) Notice of Telephonic Hearing (3/8/99; 1:00 P.M.) (filed via facsimile). |
| Mar. 02, 1999 | Petitioner Volkswagen of America, Inc.`s Memorandum in Opposition to Borton Volkswagen`s Motion to Intervene (filed via facsimile). |
| Mar. 02, 1999 | Affidavit of Joseph F, Gunther, Jr. in Support of Petitioner Volkswagen of America, Inc.`s Memorandum in Opposition to Borton Volkswagen`s Motion to Intervene (filed via facsimile). |
| Mar. 02, 1999 | Affidavit of Debra L. Kingsbury in support of Petitioner Volkswagen of America, Inc.`s Memorandum in Opposition to Borton Volkswagen`s Motion to Intervene (filed via facsimile). |
| Mar. 02, 1999 | Petitioner Volkswagen of America, Inc,`s Memorandum in Opposition to Borton Volkswagen`s Motion To Intervene (filed via facsimile). |
| Feb. 23, 1999 | Respondent`s Response to Motion to Intervene rec`d |
| Feb. 19, 1999 | Order sent out. (no later than 3/1/99, Petitioner shall file written response to motion explaining why the motion should be denied) |
| Feb. 16, 1999 | (Borton Volkswagen) Motion to Intervene (filed via facsimile). |
| Feb. 10, 1999 | Order sent out. (hearing to resume on May 10-13, 1999; 9:15am; Tallahassee) |
| Jan. 29, 1999 | Notice of Filing; (Volumes 1-4 of 4 DOAH Court Reporter Final Hearing Transcript filed. |
| Jan. 20, 1999 | Excerpt of Proceedings ; Notice of Filing rec`d |
| Jan. 19, 1999 | Hearing Partially Held, continued to date not certain. |
| Jan. 14, 1999 | (W. Forehand) Additions to Pretrial Order rec`d |
| Jan. 13, 1999 | (J. Vogler, W. Forehand) Prehearing Stipulation filed. |
| Jan. 07, 1999 | (W. Forehand) Amended Notice of Taking Deposition filed. |
| Jan. 05, 1999 | Order sent out. (agreed motion for extension of time to file trial exhibits & prehearing stipulations is granted) |
| Jan. 05, 1999 | Agreed Motion for Extension of Time to File Trial Exhibits and Pre-Hearing Stipulations filed. |
| Dec. 18, 1998 | (W. Forehand) Notice of Continuation of Taking Deposition; (W. Forehand) Amended Notice of Taking Deposition filed. |
| Dec. 04, 1998 | (W. Forehand) 2/Notice of Taking Deposition filed. |
| Nov. 09, 1998 | (W. Forehand) Amended Notice of Taking Deposition (filed via facsimile). |
| Nov. 05, 1998 | (W. Forehand) (2) Notice of Taking Deposition filed. |
| Oct. 30, 1998 | (W. Forehand) Notice of Withdrawal of Motion to Compel filed. |
| Oct. 16, 1998 | Respondent`s Motion to Compel filed. |
| Oct. 08, 1998 | Respondent`s Response to Petitioner`s First Request for Production of Documents; Respondent`s Response to Petitioner`s First Request for Production of Documents filed. |
| Oct. 08, 1998 | Notice of Filing Respondent`s Answers to Petitioners` First Set of Interrogatories; Volkswagen of America, Inc.`s First Set of Interrogatories to Pompano Imports, Inc. d/b/a Vista Motor Company filed. |
| Sep. 28, 1998 | Amended Joint Response to Initial Order filed. |
| Sep. 23, 1998 | Order sent out. (10/26/98 hearing continued to 1/19/99) |
| Sep. 23, 1998 | Notice of Hearing sent out. (hearing set for Jan. 19-22, 1999; 9:15am; Tallahassee) |
| Sep. 22, 1998 | Amended Joint Response to Initial Order (filed via facsimile). |
| Aug. 20, 1998 | Joint Motion to Reschedule Hearing and to Set Agreed Case Management Schedule filed. |
| Aug. 20, 1998 | Joint Motion to Reschedule Hearing and to Set Agreed Case Management Schedule filed. |
| Jul. 08, 1998 | Notice of Hearing by Video Teleconference sent out. (Video Hearing set for Oct. 26-30, 1998; 9:15am; Ft. Lauderdale & Tallahassee) |
| Jul. 08, 1998 | Order Requiring Prehearing Stipulation sent out. |
| Jun. 24, 1998 | Order sent out. (J. Vogler, R. Oyler & J. Turner Accepted as Qualified Representatives) |
| Jun. 19, 1998 | Order Granting Verified Motion of Volkswagen of America, Inc. for Admission Pro Hac Vice of James R. Vogler, Randall L. Oyler, and Jason C. Turner (For Judge Signature) filed. |
| Jun. 19, 1998 | (R. Davis) Notice of Appearance; Verified Motion of Volkswagen of America, Inc. for Admission Pro Hac Vice of James R. Vogler, Randall L. Oyler, and Jason C. Turner filed. |
| Jun. 09, 1998 | (Petitioner) Answer to Petition or Complaint Protesting Establishment of Dealership (filed via facsimile). |
| Jun. 09, 1998 | Joint Response to Initial Order (filed via facsimile). |
| Jun. 01, 1998 | Notice of Service of Respondent`s First Set of Interrogatories to Petitioner, Volkswagen of America, Inc. filed. |
| Jun. 01, 1998 | Respondent`s First Request for Production of Documents to Petitioner, Gunther Motor Company filed. |
| Jun. 01, 1998 | Respondent`s First Request for Production of Documents to Petitioner, Volkswagen of America, Inc.; Notice of Service of Respondent`s First Set of Interrogatories to Petitioner, Gunther Motor Company filed. |
| May 27, 1998 | Initial Order issued. |
| May 21, 1998 | Agency Referral Letter; Petition or Complaint Protesting Establishment of Dealership; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 08, 2000 | Agency Final Order | |
| Dec. 17, 1999 | Recommended Order | Licensee proved it was being inadequately represented in the community or territory of proposed dealership; notice of intent sent by licensee to Department was not defective; proposal to establish dealership should be approved. |
