The Issue The issue is whether Petitioners are entitled to a proposed motor vehicle dealership in Seminole County, Florida.
Findings Of Fact DOAH provided the parties with adequate notice of the final hearing. On December 11, 2008, DOAH mailed a Notice of Hearing to each of the parties, scheduling the final hearing for April 6, 2009. No Notice was returned as undelivered. No party objected to a final hearing on April 6, 2009. On December 11, 2008, DOAH also issued an Order of Pre- hearing Instructions that, in relevant part, required the parties to file a pre-hearing stipulation which was to include a list of witnesses and exhibits to be called and submitted at the final hearing. No party complied with the Order. The documents forwarded to DOAH by the Department support the findings. The Notice of Publication for a New Point Franchise Motor Vehicle Dealer in a County of More than 300,000 Population was published in the Florida Administrative Weekly, Volume 34, Number 43, on October 24, 2008. On behalf of Respondent, Mr. James Sursely timely filed a protest letter dated November 7, 2008, with Ms. Nalini Vinayak, the administrator at the Department responsible for receiving such protests. The remaining facts are undisputed in this proceeding. The proposed new point franchise motor vehicle dealer is for a line-make identified in the record as Chunfeng Holding Group Co. Ltd. (CFHG) motorcycles. The proposed location is in Seminole County, Florida. Seminole County has a population in excess of 300,000. The proposed new point franchise motor vehicle dealer is located at 3311 West Lake Mary Boulevard, Lake Mary, Florida. Respondent owns and operates an existing CFHG dealership that is located at 306 West Main Street, Apopka, Orange, County, Florida, 32712. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership. The petitioners submitted no evidence that Respondent is "not providing adequate representation" of the same line-make motor vehicles in the community or territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying the establishment of the proposed franchise dealership. DONE AND ENTERED this 21st day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2009.
The Issue The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Apopka, Florida.
Findings Of Fact Respondent is an existing franchised dealer of motorcycles manufactured by Chuanl Motorcycle Manufacturing Co., Ltd. (CHUA). Petitioners have proposed the establishment of a new dealership to sell the same line and make of motorcycles as those sold by Respondent. Respondent's dealership is located at 306 West Main Street, Apopka, Florida 32712. Petitioners' proposed dealership would be located at 1918 South Orange Blossom Trail, Apopka, Florida 32703. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation enter a final order denying the establishment of Petitioners' proposed franchise. DONE AND ENTERED this 14th day of January, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Mei Zhou SunL Group, Inc. 8551 Ester Boulevard Irving, Texas 75063 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Tina Wilson TGT Companies, Inc., d/b/a Extreme Motor Sales 1918 South Orange Blossom Trail Apopka, Florida 32703
The Issue The issue in these cases is whether an application for motor vehicle dealer licenses filed by SunL Group, Inc., and Auto Stop, Inc., d/b/a Motorsports Depot, should be approved.
Findings Of Fact There was no evidence presented at the hearing to establish that Scooter Depot has a franchise agreement to sell or service Chunl Motorcycle Manufacturing Co. Ltd. (CHUA) motor vehicles, a line-make to be sold by Motorsports Depot. There was no evidence presented at the hearing to establish that Scooter Depot has a franchise agreement to sell or service Shanghai Meitan Motorcycle Manufacturing Co. Ltd. (MEIT) motor vehicles, a line-make to be sold by Motorsports Depot. There was no evidence presented at the hearing that the Scooter Depot dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new point franchise motor vehicle dealerships.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the protests filed by Mobility Tech, Inc., d/b/a Charlie's Scooter Depot, in these cases. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Mei Zhou SunL Group, Inc. 8551 Ester Boulevard Irving, Texas 75063 Carlos Urbizu Mobility Tech, Inc., d/b/a Charlie’s Scooter Depot 5720 North Florida Avenue, Unit 2 Tampa, Florida 33604 Robert L. Sardegna Auto Shop, Inc., d/b/a Motorsports Depot 17630 US 41 North Lutz, Florida 33549 Carl A. Ford, Director Division of Motor Vehicles Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Petitioners are entitled to motor vehicle dealerships that are proposed to be located in Orange County, Florida.
Findings Of Fact Based on the Notices of Publication, Respondent's protest letters which were forwarded to DOAH, and the testimony presented at the final hearing, the following Findings of Fact are made: Respondent is an existing franchised dealer for motorcycles manufactured by Benzhou Vehicle Industry Group Company, Ltd. Petitioners have proposed the establishment of new dealerships to sell the same line-make of motorcycles as those sold by Respondent. Respondent's dealership is located at 3838 John Young Parkway, Orlando, Orange County, Florida. Petitioners' dealerships are proposed to be located in Orange County, Florida, at: 4535 34th Street, Orlando, Florida (Case No. 09-3489); and 2650 West Fairbanks Avenue, Winter Park, Florida (Case Nos. 09-3499 and 09-4750). The proposed dealerships are within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealerships. No evidence was presented showing that Respondent was "not providing adequate representation" of the same line-make vehicles in the community or territory.
Recommendation Based upon 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 denying the establishment of Petitioners' proposed franchise dealerships for Case Nos. 09-3489, 09-3499, and 09-4750. DONE AND ENTERED this 12th day of November, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Jude A. Mitchell Jude's Cycle Service Post Office Box 585574 Orlando, Florida 32858 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Randy Lazarus Scooter City USA, LLC 4535 34th Street Orlando, Florida 32811 Bobbette Lynott Classic Motorcycles and Sidecars, Inc. Post Office Box 969 Preston, Washington 98050 Lou Ronka Scooter City USA, LLC 2650 West Fairbanks Avenue Winter Park, Florida 32789
The Issue The issue in the case is whether an application for a new point franchise motor vehicle dealership filed by Keeway America, LLC, and Sunset Point Scooters, Inc. (Petitioners), should be approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the protest filed by Retro in this case and granting the Petitioners' request to establish a new point franchise motor vehicle dealership for the sale of ZHQM motorcycles. DONE AND ENTERED this 23rd day of October, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2009. COPIES FURNISHED: Gary Parr Sunset Point Scooters, Inc. 6481 27th Avenue North St. Petersburg, Florida 33710 Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Doug Vitello Sunset Point Scooters, Inc. 112 South Maywood Avenue Clearwater, Florida 33765 Zhong Zhuang Keeway America, LLC 2912 Skyway Circle, North Irving, Texas 75038 Edward Dreyer, Jr. Retro Unlimited, Inc. 3200 Dr. Martin Luther King, Jr. Street, North St. Petersburg, Florida 33704 Carl A. Ford, Director Division of Motor Vehicles Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Petitioner's applications to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN), should be granted. PRELIMANARY STATEMENT In the Florida Administrative Weekly, Volume 34, Number 21, May 23, 2008, the Department of Highway Safety and Motor Vehicles (DHSMV) published two Notices of Publication for a New Point Franchise Motor Vehicle Dealer in a County of Less than 300,000 Population. Said notices advised that Petitioner Gator Moto, LLC and Gator Moto, LLC (Petitioner) intended to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN). On or about June 3, 2008, Respondent Austin Global Enterprises, LLC, d/b/a New Scooters 4 Less (Respondent) filed two complaints with DHSMV about the proposed new motorcycle dealerships. DHSMV referred both complaints to the Division of Administrative Hearings on June 10, 2008. On July 2, 2008, Respondent filed its Compliance with Initial Order. On July 7, 2008, Petitioner filed Petitioner's Compliance with Initial Order Division of Administrative Hearings (DOAH) Case Nos. 08-2735 and 08-2736. This is the only communication that DOAH has received from Petitioner. On July 23, 2008, Administrative Law Judge Barbara J. Staros entered an Order of Consolidation for DOAH Case Nos. 08-2735 and 08-2736. On July 24, 2008, Judge Staros issued a Notice of Hearing, scheduling a final hearing on December 4, 2008. On November 26, 2008, Respondent filed its Compliance with Pre-hearing Instructions. Petitioner did not respond to the Order of Pre-hearing Instructions. On December 1, 2008, Judge Staros issued an Amended Notice of Hearing. The amended notice only changed the commencement time for the hearing. DOAH subsequently transferred these consolidated cases to the undersigned. On the morning of the December 4, 2008, hearing, DHSMV advised the undersigned's office that DHSMV had failed to arrange for the appearance of a court reporter at the hearing. Accordingly, the undersigned issued an Order Granting Continuance and requiring the parties to confer and provide DOAH with mutually-agreeable dates for re-scheduling the hearing. On December 17, 2008, Respondent filed its unilateral Compliance with Order Granting Continuance. Respondent filed this pleading after an unsuccessful attempt to confer with Petitioner. On December 18, 2008, the undersigned issued a Notice of Hearing and Order of Pre-hearing Instruction. The notice scheduled the hearing for February 9, 2008. On February 3, 2007, Respondent filed its unilateral Compliance with Order of Pre-hearing Instructions. Petitioner did not file a response to the Order of Pre-hearing Instructions. When the hearing commenced, Petitioner did not make an appearance. Respondent made an appearance and presented the testimony of Colin Austin, Respondent's Managing Member. Respondent did not offer any exhibits. The hearing transcript was not filed with DOAH. Neither party filed proposed findings of fact and conclusions of law.
Findings Of Fact Respondent has standing to protest Petitioner's applications pursuant to Section 320.642(3)(a)2., Florida Statutes (2008). According to DHSMV's published notice, Petitioner intended to establish two new motorcycle dealerships at 2106 Northwest 67th Place, Suite 15, Gainesville, Florida, on or after May 9, 2008. This location is only 4.5 miles from Respondent's place of business. At some point in time, Petitioner relocated its business to 7065 Northwest 22nd Street, Suite A, Gainesville, Florida. This location is only 5.3 miles from Respondent's place of business. Petitioner's application indicated that Petitioner intended to establish itself as a dealer of SHEN and JMSTAR motorcycles. Currently, Respondent sells those motorcycles under License No. VF/1020597/1. Respondent currently supplies itself with SHEN and JMSTAR products from a United States distributor. Respondent has a good faith belief that Petitioner intends to import the motorcycles and related products directly from the Chinese manufacturers. In that case, Petitioner would be able to sell the products at a lower price than Respondent and thereby deny Respondent the opportunity for reasonable growth. Petitioner did not notify DOAH about a change of address. DOAH's notices and orders directed to Petitioner at its address of record have not been returned. Petitioner has not communicated with DOAH since filing a response to the Initial Order. Petitioner did not make an appearance at the hearing. Apparently, Petitioner has abandoned its applications to establish the new dealerships.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's applications. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Collin Austin Austin Global Enterprise, LLC 118 Northwest 14th Avenue, Suite D Gainesville, Florida 32601 Justin Jackrel Gator Moto, LLC 4337 Northwest 35th Terrace Gainesville, Florida 32605 Justin Jackrel Gator Moto, LLC 2106 Northwest 67th Place, Suite 15 Gainesville, Florida 32653 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Longwood, Florida.
Findings Of Fact Respondent is an existing franchised dealer of motorcycles manufactured by Chunfeng Holding Group Co. Ltd. (CFHG). Respondent also has an existing distribution arrangement with Petitioner CF Moto Powersports, Inc. Petitioners have proposed the establishment of a new dealership to sell the same line and make of motorcycles as those sold by Respondent. Respondent's dealership is located at 306 West Main Street, Apopka, Florida 32712. Petitioners' proposed dealership would be located at 821 South Highway 17-92, Suite 101, Longwood, Florida 32750. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership.
Recommendation 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 denying the establishment of Petitioners' proposed franchise. DONE AND ENTERED this 29th day of April, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2009. COPIES FURNISHED: Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkland Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 David Levison Mega Powersports Corp. 390 North Beach Street Daytona Beach, Florida 32114 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Ivan Escalante CF Moto Powersports 3555 Holly Lane North, No. 30 Plymouth, Minnesota 55447 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712
The Issue Whether Dadeland Dodge, Inc. (Dadeland) should be permitted to relocate a motor vehicle dealership from 8455 South Dixie Highway, Miami, Dade County, Florida, to a proposed location at 16501 South Dixie Highway, Miami, Florida.
Findings Of Fact Chrysler manufacturers Dodge automobiles and trucks which are sold by a network of motor vehicle dealerships. In Florida, such dealerships are governed by the provisions of Chapter 320, Florida Statutes. Dadeland and Spitzer are dealerships selling Dodge motor vehicles in Dade County, Florida. There are five Dodge dealers in the community or territory, all of which are within Dade County. Three of the dealers are located north of the existing Dadeland site: Maroone Dodge is near the Broward County line at a point which sells into Broward; Potamkin Dodge North is in North Miami, and Potamkin Dodge is in Hialeah. Dadeland is currently located at 8455 South Dixie Highway (U.S. 1), Miami, Florida. It seeks to relocate its place of business to 16501 South Dixie Highway, Miami. Spitzer is also located on South Dixie Highway just north of Homestead, Florida. Its current location is 17.3 miles south of the existing Dadeland dealership and 11.5 miles south of the proposed Dadeland location. The criteria applicable to this case are found in Section 320.642, Florida Statutes. Such provision requires a determination of whether there is adequate representation in the community or territory. The term "community or territory" is not defined by law. In this case, the community or territory is the area used by the manufacturer to define the dealers' trading zones. Geographically the community or territory includes all of Dade County and small portions of Broward and Monroe Counties. In determining whether Chrysler has adequate representation in the community or territory, sales data was compiled for all new motor vehicle sales registered within the geographic area defined as the community or territory. Such data was for 1994 and 1995 years with projections calculated based upon actual past performance. The automobile industry classifies motor vehicles in segments lumping cars with cars and trucks with trucks. Typically, segments are designated or defined by companies such as R.L. Polk which tracks new vehicle sales. The segments group vehicles which presumably compete against one another for buyers. Dodge does not compete in all car segments. For example, it has no vehicle which is classified as mini-subcompact. Similarly, trucks are also classified into segments. Dodge competes in five of the manufacturers' ten segments. In this case, Dodge sales in the community or territory (Comm/Terr) have been compared to Dodge sales in the nation as a whole. In order to account for the buying preferences of the community or territory, the Dodge sales for this community or territory have been adjusted to consider the segment preferences of the Dade Comm/Terr buyers. In computing these projections all sales, foreign and domestic, have been considered. Chrysler does not distinguish between imports and domestics because all vehicles within the segments compete against the Chrysler entry in the segment. While some entries may, by historical buying pattern, have proved more successful, Dodge registers sales in all segments in which it competes. In some instances Dodge has competed well. For example, Chrysler was the originator of the minivan, both domestics and import manufacturers have introduced vehicles to compete in those segments. Customers looking for a vehicle in the minivan segment are going to look for the best minivan they can find, regardless of whether an import or domestic. By comparing Dodge's sales penetration in each vehicle segment in the nation with the industry available in each segment in the community or territory, an appropriate standard is established to determine whether this area is receiving adequate representation. Measuring penetration within each segment takes into account differences in consumer preferences between the two areas without regard to brand. Utilizing this segment analysis, the reasonably expected market share for Dodge in the Comm/Terr is 5.89% of retail industry for cars and trucks. Dodge penetration in the community or territory has been below expected levels in 1994 and 1995. Dodge penetration compared with its expected share (utilizing the national average area as a standard and adjusted for local segment preferences) was between 51.35% and 59.69% effective. On the basis of the net shortfall in units, or number of vehicles which, at the minimum, would be required to be registered in order to bring the community or territory up to the expected performance, the 1994 shortfall was 1075 units, and in 1995 was 907 units. Even using a Florida sales average (as opposed to the national average) as a standard for measuring whether Dodge is receiving adequate representation in this Comm/Terr, the performance of the Dodge network in this community or territory falls short. Based upon the foregoing it is concluded that Dodge has lost sales opportunity in the community or territory and that the network of Dodge dealers within this Comm/Terr have failed to adequately represent Chrysler. The community or territory has experienced growth in population, driving age population, and households during the last ten years. This growth is expected to continue. Employment has also grown and corresponds to a predominance of census traits reflecting average household incomes of over $25,000. Presumably such households represent potential new vehicle buyers. Total industry car and truck registrations in the community or territory have grown from 108,483 in 1993 to 112,767 in 1995. Spitzer sales increased in the aftermath of Hurricane Andrew and have continued to increase. Spitzer's sales history is as follows: 369 (1991); 527 (1992); 506 (1993); 567 (1994); and 644 (1995). 24. Since 1980, the number of Dodge dealers in the community or territory has decreased by one. Thus, it is important to assure that the remaining Dodge dealerships are appropriately located to serve the car buying population of the market. The importance of the number of dealers also relates to Dodge's major competitors in Dade. Six different brands have more than five points: Ford(10); Chevrolet (7); Honda (7); Chrysler-Plymouth (6); Jeep-Eagle (6); and Toyota (6). There are five dealerships within the Comm/Terr for Lincoln-Mercury, Pontiac, Nissan, and Mazda. The current Dadeland facility is a small facility with no room to expand. Other dealerships in the area offer modern, large facilities. The current Dadeland facility has no enclosed showroom with a very small sales area. The current Dadeland facility is leased by its owner to Chrysler Realty, which in turn leases it to Dadeland. The lease on this real property expires in 1997. Chrysler Realty has no right to renew it. Despite searching for land since 1992, Chrysler Realty has not been able to locate any land within two miles of the existing Dadeland dealership upon which this dealer could relocate. Although the most preferable relocation of Dadeland would move the dealership to the west, there is no site available for use as an automobile dealership in that area either. Other competitive dealerships are located south of the existing Dadeland location along U.S. 1. If Chrysler is not able to relocate Dadeland and were to lose the point, the reduction of the dealerships by one would have an adverse impact on competition, the consumer, and on dealer sales by leaving a void in an interconnected market. Dadeland proposes to relocate from its current location at the extreme far north end of the Dadeland auto cluster, into the center of an auto cluster on U.S. 1, in the immediate vicinity of many other dealerships. The auto cluster in which Spitzer is located in Homestead contains most of the same franchises which are in the auto cluster into which Dadeland proposes to relocate. Many of the same line-make dealerships, located in both clusters, are closer to one another, or about as close, as would be Dadeland and Spitzer if the relocation is permitted. The proximity of intra-brand competition promotes same line-make competition which in turn, makes strong inter-brand competitors out of both dealers. Close proximity is, generally, a positive factor for both dealerships. The pattern of Spitzer's sales, which extend in a broad pattern, suggests that Spitzer does and will continue to, make sales in close proximity to other Dodge dealers in the Comm/Terr, especially Dadeland. Spitzer penetrates the market within two miles of its dealership at a rate of 4.9%. This level of penetration falls below the national average and indicates that there is additional sales opportunity to Spitzer within two miles of its dealership. While Spitzer maintains a higher level of penetration within a six-mile radius of its dealership, its share drops after that. Whether at the distance of the proposed Dadeland relocation or where it is now, Spitzer's sales penetration in those areas is low. The relocation of the Dadeland dealership will likely benefit consumers and the public interest. It will provide the growing population of the community or territory with a more convenient place to shop for Dodges in close proximity to the other dealerships where they shop for other brands. Because of the untapped opportunity for Dodge in the community or territory, and depending on Spitzer's response to the competition, ample opportunity exists for both dealers to increase sales by capitalizing on the available sales opportunity in the area. If the relocated Dadeland dealership performs in the future in a similar manner to the way in which it is currently performing at its current location, there should be no adverse impact on the existing dealers, including Spitzer. Dealers are accustomed to the cyclical nature of the automobile business. Sales go up and down through the cycle. Any number of factors could contribute to an individual dealer's sales going up or down. Dealers make adjustments in the operation of their businesses in order to maximize their profits. Within the industry cycle, there are also shifts in the dealers' business between new and used car sales. If new cars are not popular in a down cycle, used cars become far more popular. When buyers don't have the money to buy new vehicles, they will look at used ones. Typically, when the new car business is down, the used car business will be up and service business will be up. Consequently, a dealership's profit should not correlate solely with new car sales. All of Spitzer's estimations of lost new vehicle sales, and the lost profits resulting from those lost sales, were based upon the premise that Spitzer (and the other Dodge dealers) can compete only in the domestic industry market. The persuasive evidence presented in this cause does not support that premise. Accordingly, Spitzer's sales and economic loss estimates are rejected. The Spitzer facility is adequate to serve the Homestead area and to sell into the community or territory as a whole. Spitzer should continue to increase its sales and receive a return on its investment in the facility. Chrysler is attempting to relocate Dadeland in order to promote the existing dealer network as opposed to seeking a new point to address lost market opportunity. Chrysler Realty has executed an agreement with Dadeland which provides that Chrysler Realty will build a new facility for Dadeland on property that it has purchased. All of the costs for that facility, including the purchase price of the land and all costs incurred in the construction of the building, including surveys, impact fees, architect and engineering costs will form the basis for a monthly rental amount. Chrysler Realty's return on the total amount is fixed at eleven percent. All dealerships who rent from Chrysler Realty, including one owned by Spitzer in Ohio, pay rent in accordance with the uniform policy and computation proposed for this relocation. There is no evidence that Chrysler has denied its existing dealers opportunities for growth. There is no evidence that Chrysler coerced its existing dealers to consent to the proposed relocation. Spitzer achieved its minimum sales responsibility for 1995; therefore, there is no evidence that Spitzer is not in compliance with its dealer agreement with Chrysler.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered granting Dadeland's request to relocate its dealership. DONE AND ENTERED this 8th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997. APPENDIX At the conclusion of the hearing, the parties stipulated to September 30, 1996, as the deadline for filing proposed recommended orders. This date was presumably selected to secure rulings on the proposed findings of fact. While the parties later waived that opportunity and agreed to submit their proposed orders on October 2, 1996, specific rulings are included below where citation to the record was noted by the party. Where no citation was listed, the proposed finding of fact is rejected unless otherwise stated in the findings of fact above. Rulings on the proposed findings of fact submitted by Chrysler: 1. Paragraphs 1 through 3, 5, 6, 12, 13, 16, 17, 18, 23, 24, 25, 26 through 30, 31, 55, 56, 57, 63, 65, 71, 72, 74, 75, 76, 78, 79, 80, 81, 85, 86, 87, 88, 90, 91, 92, 93, 94, 97, 98, 100, 101, 102, 103, 108, 109, 110, 111, 112, 113, 117, 136, 137, 138, 139 and 140 are accepted. Paragraph 4 is rejected as argument or comment of law. Paragraphs 8 through 11 are rejected as irrelevant. Paragraphs 14 and 15 are rejected as comment of law or argument. Paragraphs 19 through 21 are rejected as unnecessary or irrelevant. Paragraph 22 is accepted with the deletion of the word "very" before "conservative" which is contrary to the weight of credible evidence or not defined adequately in the record. Paragraphs 32 through 54 are rejected as argument or comment on the evidence unnecessary to the conclusions reached. Paragraphs 58 through 62 are rejected as argument or comment on the evidence unnecessary to the conclusions reached. Paragraph 64 is rejected as unnecessary to the conclusion reached. Paragraphs 66 through 70 are rejected as comment or argument not necessary to conclusions reached. Paragraph 73 is comment on the evidence. The relocation of the dealership is justified because it can't continue where it is; and, in terms of economic and other conditions, it would be damaging to the Dodge product sales which is already inadequately represented in the Comm/Terr. Paragraph 77 is rejected as comment and unnecessary. 13 Paragraphs 82 through 84 are rejected as irrelevant or unnecessary. Paragraphs 89 is rejected as irrelevant. Paragraphs 95 and 96 are rejected as argument. Paragraph 99 is rejected as argument. Paragraphs 104 through 107 are rejected as unnecessary. Paragraphs 114 through 116 are rejected as unnecessary. Paragraph 118 is rejected as comment or speculation unnecessary to the conclusions reached herein. Paragraphs 119 through 135 are unnecessary and comment on the evidence more in the form of argument than fact. To the extent findings have been made which support Chrysler's argument, such findings are accepted. Paragraph 138 is comment and the editorial quality of its statement is rejected as argumentative. Rulings on the proposed findings of fact submitted by Spitzer: 1. Paragraphs 1 through 5, 7, 10, 13, 14, 16, 17, 18, 21, 25, 28, 29, 30, 64, 65, 66, 67, 68, 73, 75 through 80, 87, 91 are accepted. Paragraphs 6, 8, 9 and 11 are rejected as contrary to the weight of the persuasive evidence. Paragraphs 12 is rejected in that it considers only geographic proximity as an impacting factor and ignores dealer performance opportunities and the opportunity for additional sales in the Comm/Terr. Paragraph 15 is rejected as it ignores the opportunity for new sales in the Comm/Terr which should offset adverse effects, if any. With regard to paragraph 16, it is accepted that the optimal location for the relocation would be north and west of the proposed site, however, no such site is available. Therefore, references to such site are rejected as irrelevant albeit factually correct. Paragraph 18 is rejected as irrelevant; Dadeland will have to future sales at its current location. Paragraphs 19, 20, 22, 23, 24, 26 and 27 are rejected as irrelevant, contrary to the weight of persuasive evidence, or argument. With regard to paragraph 31, with the addition of "and west" such paragraph is accepted as factually accurate but ultimately irrelevant. Paragraphs 32 through 47 are rejected in their conclusions as contrary to the weight of persuasive evidence. Paragraphs 48 through 63 are rejected as argument, comment on evidence or contrary to the weight of persuasive evidence. Paragraphs 69 through 72 are rejected as contrary to the weight of the credible evidence. Paragraphs 74 through 86 are rejected as comment, argument, irrelevant or contrary to the weight of the persuasive evidence. Paragraphs 88 and 90, 92, 93, and 94 are rejected as comment, incomplete, or contrary to the weight of the evidence. COPIES FURNISHED: Dean Bunch, Esquire Sutherland, Asbill & Brennan, L.L.P. 909 East Park Avenue Tallahassee, Florida 32301 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Robert A. Bass, Esquire Myers, Forehand & Fuller 402 North Office Plaza Drive Tallahassee, Florida 32301 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Michael J. Alderman, Esquire Division of Motor Vehicles Room A432, Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue The issue is whether the Petitioners' proposal for a dealer to sell two new lines of motorcycles should be approved.
Findings Of Fact On October 10, 2008, in the Florida Administrative Weekly, Volume 34, Number 41, two separate Notices of Publication for a New Point Franchise Motor Vehicle Dealer in a County of More than 300,000 Population were published. The first notice provided, in relevant part, as follows: Pursuant to Section 320.642, Florida Statutes, notice is given that [Galaxy] intends to allow the establishment of [Treasure Coast] as a dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 7320 South U.S. 1, Port St. Lucie (St. Lucie County) Florida 34952 on or after September 26, 2008. The second notice provided, in relevant part, as follows: Pursuant to Section 320.642, Florida Statutes, notice is given that [Galaxy] intends to allow the establishment of [Treasure Coast] as a dealership for the sale of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd (ZHEJ) at 7320 South U.S. 1, Port St. Lucie (St. Lucie County) Florida 34952 on or after September 26, 2008. On October 16, 2008, Respondent filed the following letters of protest with the Department of Highway Safety and Motor Vehicles: In regards to the intent of [Galaxy] to establish a Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) with [Treasure Coast] for the sale of motorcycles at 7320 South U.S. 1, Port St. Lucie, Fl [sic] 34952. This letter represents a written complaint to their application for this dealership, because we already represent said dealership. and In regards to the intent of [Galaxy] to establish a Zhejiang Taizhou Wangye Power Co. Ltd (ZHEJ) with [Treasure Coast] for the sale of motorcycles at 7320 South U.S. 1, Port St. Lucie, Fl [sic] 34952. This letter represents a written complaint to their application for this dealership, because we already represent said dealership. Both letters made the following additional representations: The proposed dealership would be within 20 miles of our dealership, as measured by straight line distance. They are 8.61 miles away per mapquest. The proposed dealership is to be located within the contractual area outlined in our dealer agreement, as we have a 20 mile exclusivity. We have made more than 25% of our retail sales to persons whose registered household addresses are within 20 straight line miles of the proposed dealership during the past 12 month period. By letter dated October 22, 2008, the Department apparently tried to refer this matter to DOAH. For reasons that were not explained, however, this matter was not received at DOAH until it was referred again by letter dated June 3, 2009. The protest filed by Respondent was timely. The parties agreed that the population of St. Lucie County is over 300,000, and that Respondent's dealership is 8.61 miles from the proposed site. Respondent has dealer agreements to sell various lines of motorcycles, including motorcycles manufactured by Zhejiang Taizhou Wangye Power Co., Ltd. (ZHEJ); and motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG). At the hearing, Mr. Young agreed that the evidence showed that, as a dealer for Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ), Respondent has adequately promoted that line and has made 25 percent or more of its retail sales to household addresses within 12.5 miles of the proposed dealership. At the hearing, Mr. Young said that the only motorcycles at issue were those manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG). Specifically, he questioned whether the line represented sufficient numbers of sales within the territory. Mr. Mourning explained that the ZHNG line was also called ZNEN before 2009. He produced records that confirm that Taizhou Zhongneng Motorcycle Co. Ltd., used ZNEN as the make of its vehicles in 2008. Taken together, his sales records for ZHNG and ZNEN motorcycles demonstrated that he also adequately and successfully represents that line in the territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying Treasure Coast's applications to become the licensee to sell motorcycles line-makes manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ); and by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at the proposed site. DONE AND ENTERED this 2nd day of November, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2009 Apalachee Parkway Tallahassee, Florida 32399-0500 Guy Young J & F South Florida Investments, Inc. d/b/a Treasure Coast Scooters and Things 7320 South US 1 Port St. Lucie, Florida 34952 Mark Mourning WenMark Inc., d/b/a All The Wheel Toys 1540 Northwest Federal Highway Stuart, Florida 34994 Jennifer Clark, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Leo Su Galaxy Powersports, LLC, d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229
