Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by P. Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Moto Dealer Import, LLC and A-1 Scooters, LLC to sell motorcycles manufactured by Shanghai JMSTAR Motorcycle Co. Ltd. (IMST) at 2204 West 15" Street, Panama City (Bay County), Florida 32401. DONE AND ORDERED this 4, of July, 2009, in Tallahassee, Leon County, Florida. 'ARL A. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division Motor Vehicles this VA KE! day of July, 2009. 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 Rules of Appellate Procedure. CAF/vlg Copies furnished: Jack Lin Moto Dealer Import, LLC 4998-B South Royal Atlanta Drive Tucker, Georgia 30084 Wayne Wooten Moto Import Distributors, LLC 12202 Hutchinson Boulevard, Suite 72 Panama City, Florida 32407 Susan Viafora A-1 Scooters, LLC 2204 West 15'" Street Panama City, Florida 32401 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 P. Michael Ruff Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nov 7 2008 9:51 Fax: Nov 7 2008 09:50am 002/002 Moto Dealer import LLC nig, “4998-5 South Royat Atenas Dr, Tucker, GA 30084 TEL: (6781937-4000 FA (678 997-4695. . waruinotodealerimport.com 14-06-2008 Case # 08-5065 Case # 08-5080 To: P. Michael Ruff - Administrative Law Judge _ MDI no longer wants Big Boys Toys Florida, LLC as an appointed dealer distributor in Florida for line-make Zhejiang Summit Huawin Motoreycle Co. Ltd. (POPC) and Shanghai JMSTAR Motoreycle Co. Ltd (MST). We do not want to sell our products to this company. We do not wish to proceed with the hearing or any other action in this case. If you need any additional information please contact me at 678-937-1690. Thank You, Jack Lin COPIES FURNISHED: Wayne Wooten 770-539-4978 Mr. Michael Alderman -Esquire 850-617-3101 Dept. of Hwy Safety and Motor Vehicles 850-617-2827 — Deborah-Osman A-I Scooters, LLC Susan Viafora 2204 W. 15th St, Panama City, FL
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Administrative Law Judge Jeff B. Clark, of the Division of Administrative Hearings, pursuant to non-compliance to the requirements set out in the Order to Show Cause-—for both parties to file responses no later than August 7, 2009 as to why this matter should not be closed based on lack of response to the Initial Order. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Galaxy Powersports, LLC d/b/a JCL International, LLC and Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746. DONE AND ORDERED this /7“ day of September, 2009, in Tallahassee, Leon County, Florida. L A. FORD, Direct Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_/D#}) day of September, 2009. - Vinayak, Dealer Administrator 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 Rules of Appellate Procedure. CAFivlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Jeff B. Clark Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Findings Of Fact The Petitioner, Lake Wales Chrysler-Plymouth Dodge, Inc. has applied to the Department of Highway Safety and Motor Vehicles for a license as a motor vehicle dealer to sell new Chrysler, Plymouth, and Dodge vehicles. The Petitioner proposes to locate the new dealership at 1900 U.S. Highway 27 North, Lake Wales, Florida, which is in Polk County, Florida. The Petitioner, Chrysler Motors Corporation is willing to enter into an agreement with Lake Wales Chrysler-Plymouth Dodge, Inc., establishing a new dealership in Lake Wales if a license is obtained. Chrysler Motors Corporation is a licensed motor vehicle manufacturer qualified to do business in the State of Florida and licensed pursuant to Chapter 320, Florida Statutes. Tom Edwards, Inc., is a licensed and franchised new car dealership located at 690 East Main Street, Bartow, Florida, in Polk County, Florida. T. 308. Tom Edwards, Inc., initially opened in 1973 with four lines, Chrysler, Plymouth, Dodge, and Dodge Trucks. T. 309. Tom Edwards, Inc., has been in operation continuously since 1973, and now sells Chrysler, Dodge, and Dodge Trucks, but does not sell Plymouth. T. 98-99. On January 27, 1987, Tom Edwards, Inc., filed with the Department of Highway Safety and Motor Vehicles a formal protest against the grant of a license to Lake Wales Chrysler-Plymouth Dodge, Inc. On February 27, 1987, the Department of Highway Safety and Motor Vehicles referred the application and protest to the Division of Administrative Hearings to conduct a formal administrative hearing pursuant to section 120.57(1), Fla. Stat. (1986). Chrysler Corporation has not contended and does not now contend that Tom Edwards, Inc., has breached its sales agreement. Tom Edwards, Inc., has satisfactorily met its sales agreement requirements with respect to fair market share since 1982, and has received several "5 star awards" from Chrysler. Chrysler Corporation has never in writing advised Tom Edwards, Inc., that it was dissatisfied with penetration in the Bartow or Lake Wales sales localities, or in comparison to other dealerships in Polk County. Chrysler Corporation does contend, however, that recent registrations of Chrysler vehicles in Polk County and the Lake Wales sales locality are inadequate when compared to recent Chrysler registrations in the United States and in what is known as the Orlando zone, and that this inadequacy has occurred despite sales potential and efforts by all Chrysler dealers wherever located. Whether Chrysler Corporation has assigned Tom Edwards, Inc., to represent the Lake Wales sales locality In May, 1980, the Chrysler dealership in Lake Wales, Florida, closed. T. 310-11. Chrysler Corporation asked Tom Edwards, Inc., if it would advertise in the yellow pages of the telephone directory in Lake Wales, and offered to pay the cost. T. 310. Tom Edwards, Inc., agreed, and took out advertising in the 1981 Lake Wales yellow pages. T. 310-11. Tom Edwards, Inc., has advertised in the Lake Wales yellow pages continuously since then. T. 311. By 1985, Chrysler Corporation no longer paid the cost. The cost was billed to the parts account of Tom Edwards, Inc., by Chrysler. R. Ex. 7. Tom Edwards, Inc., does not limit its advertising to Lake Wales. It advertises in the telephone yellow pages in Bartow, Mulberry, Plant City, Lakeland, Winter Haven, Lake Wales, and Fort Meade. T. 375. Tom Edwards, Inc., also advertises in the Lakeland Ledger, a newspaper that circulates throughout all of Polk County, and on a radio station received throughout all of Polk County. T. 373-74. In short, all of the advertising by Tom Edwards, Inc., is county-wide. T. 375. In the sales agreement between Tom Edwards, Inc., and Chrysler Corporation, Tom Edwards, Inc., is assigned the Bartow sales locality, which includes post office towns near Bartow, but does not include the Lake Wales sales locality. T. 368. While Chrysler Corporation has encouraged Tom Edwards, Inc., to serve the Lake Wales sales locality through yellow page advertising, and has allowed Tom Edwards, Inc., to actively represent Chrysler Corporation in Lake Wales, Chrysler Corporation has not contractually assigned that sales locality to Tom Edwards, Inc. Economic impact upon Tom Edwards, Inc. for purposes of determining the existence of a substantial interest In 1986, Tom Edwards, Inc., sold 25 new motor vehicles in the Lake Wales sales locality for a gross profit of $31,257.93. T. 317-18. The total gross profit from Lake Wales customers in 1986, including service and parts, was $44,000. T. 320. It is inferred that Tom Edwards, Inc., would lose some of that gross profit if a new competing Chrysler dealership is established by the Petitioners. Determination of the community or territory of representation The Chrysler Corporation identifies sales localities for potential placement of dealerships, defining a sales locality as a principal town reasonably close and accessible from surrounding communities. T. 90. Chrysler Corporation designates sales localities in sales agreements with dealers. T. 91. Pursuant to such sales agreements, Chrysler holds the dealer responsible only for performance and adequacy of facilities with respect to the designated sales locality. T. 94. Chrysler has identified four sales localities in Polk County: Lakeland, Winter Haven, Bartow, and Lake Wales. T. 91; P. Ex. 0-6 and 1. These sales localities are separate geographic areas of Polk county. Chrysler has new vehicle dealerships in Lakeland, Winter Haven, and Bartow, but not in Lake Wales. P. Ex. 0-35 and 1. All of these dealerships carry Chrysler, Dodge, and Dodge Truck. The dealerships in Lakeland and Winter Haven also carry Plymouth. T. 99. Chrysler has selected a proposed site for a dealership in Lake Wales. T. 83. The driving time and distance between existing Chrysler dealerships or the proposed Lake Wales new dealership site are as follows: Lake Wales to Bartow: 17.3 miles, 22:20 minutes. Bartow to Lakeland: 15.6 miles, 27:43 minutes. Lakeland to Winter Haven: 17.5 miles, 31:40 minutes. Winter Haven to Lake Wales: 11.6 miles, 17:45 minutes. Bartow to Winter Haven: 11.0 miles, 17:05 minutes. T. 83-88. It is inferred that one-way driving times of 17 to 31 minutes, while not a major impediment to travel, are sufficiently large that for some types of social and economic activity, a resident of one of the four urban areas (Bartow, Lakeland, Winter Haven, and Lake Wales) may choose to stay within the area rather than to invest the round-trip time to travel to another area. The post offices serving Polk County serve only Polk County, and no part of Polk County is served by a post office outside of Polk County. T. 39. Polk County is designated by the United States Bureau of the Census as a statistical metropolitan area (SMA). T. 82. The statistical metropolitan area that is Polk County is composed of census tracts as depicted in P. Exs. C-7 and C-8. T. 109. The four Chrysler sales localities are roughly composed of the census tracts depicted on P. Ex. 9. T. 111. The differences between the sales localities as designated by Chrysler and the census tract boundaries are negligible for purposes of demographic analysis with respect to the four sales localities. T. 111-12. The estimated population for Polk County in 1986 was 375,997. T. 116. P. Ex. C-14 is a computer-generated map. Each dot represents 75 persons, but has been randomly placed within each discrete census tract by the computer, rather than located by actual residence. T. 114-16. With that limitation, P. Ex. C-14 shows that the census tracts associated with the cities of Lakeland and Winter Haven have the greatest concentrations of Polk County population, with secondary centers of population in Bartow, Haines City, and Lake Wales. From 1980 to 1986, Polk County population increased by 16.9 percent. T. 119; P. Ex. C-15. For the same period, Florida grew 18.9 percent, which was more than three times the national growth rate. T. 119. Almost all of the census tracts in Polk County experienced gain in population from 1980 to 1986. T. 118. The areas experiencing the highest net gain in population were the areas near the cities of Lakeland, Winter Haven, Haines City, and Bartow. P. Ex. C-15. The population of the Lake Wales sales locality increased by 13.47 percent. P. Ex. C-22. From 1986 to 1991, it is projected that the population of Polk County will grow by 11.9 percent, to a population of 420,606. T. 120; P. Ex. C-17. By 1991, the concentrations of population will continue to be in the same areas of concentration as in 1986. P. Ex. C-16; T. 120. The areas expected to have the greatest population gains are those near Lakeland, Winter Haven, Haines City, and Bartow. P. Ex. C-17. Census tracts 143 and 155, which comprise Lake Wales, indicate that Lake Wales itself will not have the same degree of population growth as the other four cities. Compare P. Exs. C-17 and C-7. T. 130-31. The Lake Wales sales locality is nonetheless expected to grow from about 35,447 persons to 38,887 persons from 1986 to 1991, a gain of about 9.7 percent. P. Ex. 0-22. A major portion of the growth of the Lake Wales sales area is expected to be in census tracts 154 and 156, which are southeast of the City of Lake Wales, as well as to the east. T. 129-132; P. Ex. C-22. The same demographic pattern is shown by analyzing the distribution and estimated change of households in Polk County. From 1980 to 1986, the number of households in Polk County increased by 21.12 percent, and the number is expected to increase by 15.3 percent by 1991. Areas nearest Lakeland and Winter Haven, followed by Haines City, and Bartow, showed the greatest concentration of gain in number of households in the 1980 to 1986 period, and are expected to see the greatest gains by 1991. P. Exs. C-18, C-19, C-20, and C-21; T. 122-24. However, households in the Lake Wales sales locality increased by 18.3 percent in the period 1980 to 1986, and the locality is expected to grow from about 13,487 households in 1986 to 15,321 households in 1991, an expected gain of 13.6 percent. P. Ex. C-22. New vehicle dealers all over Polk County advertise the sale of their new vehicles in the Lake Wales telephone directory. T. 89. At least one dealer, the Respondent, also advertises in telephone directories in other cities in Polk County, T. 375, and it is inferred that other dealers also advertise in such directories. The Lakeland Ledger is a newspaper published in Lakeland that is circulated throughout all of Polk County. T. 89-90. One new vehicle dealer advertises in the Lakeland Ledger, T. 373, and it is inferred that competitor dealers also advertise in the Lakeland Ledger. At least one new vehicle dealer advertises by radio that reaches all of Polk County, T. 374, and it is inferred that other dealers advertise by radio as well. With the exception of a few new vehicle dealerships in nearby Fort Meade, Haines City, and Frostproof, all new vehicle dealerships in Polk County that directly compete with the Chrysler line, not including foreign imports, are in and very near the four principal towns designated by Chrysler as the centers of sales localities. T. 97, 99-101; P. Ex. C-35 and 1. At least one new vehicle dealer in Polk County, the Respondent, sells a significant number of vehicles to purchasers located throughout Polk County, P. Ex. C-66, and it is inferred that competitor new vehicle dealers do likewise. Based upon the designation of Polk County by the Bureau of the Census as statistical metropolitan area, the location of the four major market areas within the interior of the county, the travel distances between the centers of those four markets, and the county-wide advertising and marketing behavior of existing new vehicle dealerships, Polk County is an appropriate geographical area to use for consideration of the market for the sale of new vehicles. Based upon the location of major highways, growth patterns and location of population centers, and location of retail trade centers, Polk County contains four major metropolitan centers for the marketing of new vehicles: Lakeland, Winter Haven, Bartow, and Lake Wales. T. 81-82; P. Ex. C- Each of these four markets are appropriate for consideration of the market for sale of new vehicles. In particular, the Lake Wales sales locality is an appropriate separate market with respect to analysis of the sale of new vehicles. Standards for determination of adequacy of representation "Penetration" is the term used in the marketing of new motor vehicles for the market share of a line of motor vehicles, or the degree of acceptance of that line of motor vehicles by the consumer in a given market area. T. 133-34. "Industry" means marketing performance of a particular product within a relevant market. One reliable way of measuring industry is by counting the number of new vehicle registrations in a market area. Such records are available in the official records of the State of Florida, and can be grouped into market areas by post office locality. T. 19-33. Registrations reflect the vehicles registered to persons located in a given area. The actual sale of the vehicle may have occurred in any area of the country, but is counted by the registered location of the new vehicle. T. 19- 20. The data presented by the Petitioners concerning new vehicle registrations was reliable. The Respondent did not present any evidence to cause a doubt as to reliability. Determination of the adequacy of Chrysler's current market share of new motor vehicles in Polk County and the four sales localities of Polk County requires the establishment of a benchmark of adequacy. T. 134, 190-91. A reasonable benchmark may be established by reference to market behavior in a geographic area that encompasses a broader spectrum of types of dealers and geographic characteristics than Polk County alone. T. 134. The benchmark geographic market areas proposed by the Petitioners are the Orlando zone and the United States. T. 134-36. Use of registrations performance in the United States for purposes of comparison to smaller markets is a standard practice in the new vehicle industry. T. 136. The Orlando zone is all of the State of Florida with the exception of the counties west of the Apalachicola River. T. 140. The Orlando zone contains only territory within the State of Florida. Id. Fleet sales are defined as the sale of ten or more new vehicles to a single purchaser in a calendar year. T. 137, 44. Fleet sales are not counted as retail sales. Id. The Orlando zone contains large metropolitan areas that have a substantial amount of rental car and other fleet business; Orlando, Miami, and Ft. Lauderdale are examples. T. 135. With its heavy fleet sales influence, the Orlando zone is less like Polk County and its four sales localities, and is more like the United States. T. 139, 150; P. Exs. C-36, C-38. The Lake Wales sales locality is almost exclusively an area of retail sales, with only about 3 percent of the industry of both cars and trucks devoted to fleet registrations. P. Ex. C-36, C-38. Nonetheless, the Lake Wales sales locality is more like the United States than the Orlando zone. Id. The Bartow sales locality is mixed. It has 17.1 percent of its car registrations in 1986 devoted to fleet registrations, which is the same as the United States, at 17.9 percent. P. Ex. C-36. The truck registrations are quite unlike either the United States or Orlando zone registrations. In 1986, Bartow had 36.6 percent fleet truck registrations, compared to 15.6 percent for the United States and 20.6 percent for the Orlando zone. P. Ex. C-38. The Winter Haven sales locality is more like Lake Wales. In 1986, its car sales registrations were 7.9 percent fleet, and 13.1 percent fleet for truck registrations. P. Exs. C-36, C-38. The Orlando zone is less like Polk County and its four sales localities than the United States with respect to imports and other vehicles as a percentage of total truck industry. T. 152; P. Ex. 39. With respect to imports as a percentage of car industry, the Orlando zone and the United States seem to be functionally the same, but each show larger percentages of imports than either Polk County or Lake Wales. P. Ex. C-37. Based upon the foregoing comparisons of fleet versus retail registrations, as well as comparison of the percentage of imports in the truck industry, it is more appropriate to compare Polk County and Lake Wales with the United States rather than to the Orlando zone. Comparison to the Orlando zone is still acceptable, however, though less acceptable than comparison to the United States. T. 140, 149, 216, 238-39. Adequacy of representation in Polk County and in the Lakes Wales sales locality The retail car industry in Polk County is about 86 percent of the total motor vehicle industry as measured by registrations in Polk County. T. 154. Thus, retail car sales is an important matter to consider in determining the adequacy of Chrysler penetration of the relevant market area. In 1984, the Chrysler corporate line registrations in Polk County were 8.9 percent of the retail car industry and 7.7 percent of the retail truck industry. The corporate registrations in the United States market 1984 were 9.9 percent and 12.7 percent, respectively. Thus, Chrysler registrations in Polk County lagged behind the United States market by 1.0 percent in cars and 5.0 percent in trucks. P. Ex. C-45. In 1985, the Polk County registrations for retail cars were 9.0 percent, 2.1 percent less than the United States percentage of 11.1 percent, and for retail trucks were 8.5 percent, which were 4.2 percent less than the United States percentage of 12.7 percent. P. Ex. C-45. In 1986, the Polk County registrations for retail cars were 7.1 percent, which were 4.0 percent less than the United States percentage of 11.1 percent, and for retail trucks were 7.0 percent, which were 5.0 percent less than the United States percentage of 12.0 percent. T. 154-58; P. Ex. C-45. Analysis of Chrysler penetration of the Lakeland, Winter Haven, Bartow, and Lake Wales sales localities in Polk County reveal substantially the same loss of market penetration as shown for Polk County as a whole. P. Exs. C- 46, C-47, C-48, C-49, and C-50; T. 159-69. In particular, registrations of new retail cars in the Lake Wales locality was 0.6 percent less than United States registrations in 1984, was 1.4 percent less in 1985, and was 4.1 percent less in 1986. Registrations of new retail trucks in the Lake Wales locality was 5.3 percent less than United States registrations in 1984, was 5.1 percent less in 1985, and was 4.8 percent less in 1986. P. Ex. C-50. For these years, Chrysler had registrations of 9.9 percent, 11.1 percent, and 11.1 percent for retail cars, and 12.7 percent, 12.7 percent, and 12.0 percent for retail trucks in the United States. Id. These are significant shortfalls. For example, the 1986 shortfall for retail cars in Polk County of 4.0 percent is, comparatively speaking, a loss of 36 percent of the potential market shown by the United States registrations. That is, United States registrations were 11.1 percent of total car retail industry, while Polk County registrations were only 7.1 percent; the shortfall, 4.0 percent, is 36 percent of 11.1 percent. The other shortfalls both in Polk County and in the Lake Wales sales locality are similar in comparison to the United States potential. The shortfall of penetration of the Polk County and Lake Wales markets has come during a period when the overall retail trade for cars in those markets has been increasing. In Polk County, the total number of cars registered at retail went from 11,530 to 12,191 from 1984 to 1986, but Chrysler registrations dropped from 1,025 to 866 in the same period. P. Ex. C-45. Similarly, retail truck registrations in Polk County increased in those years from 5,836 to 6,434, but the Chrysler share of those registrations held steady, from 448 to 451. Id. In Lake Wales, retail car registrations increased slightly, from 1,210 to 1,237 from 1984 to 1986, but the Chrysler share dropped from 113 to 86. P. Ex. C-50. The same analysis of Chrysler penetration of Polk County and the four sales localities was made, but comparisons were made to the Orlando zone statistics for registrations rather than to the United States registrations. P. Exs. C-60 through C-65; T. 171. The results were substantially the same as discussed with respect to the United States registrations. Retail buyers of new vehicles are motivated to buy due to price, style, and convenience. T. 177. While it is arguable that a round-trip of from 30 to 60 minutes is not a major impediment to a potential buyer of a new vehicle, nonetheless the buyer will very likely first stop at nearer dealerships, and may enter into a contract for purchase before reaching the more distant dealership. Thus, for the initial sale, a travel distance one-way of from 17 to 31 minutes could have a significant impact upon the sales by the more distant dealership. But more important, a buyer will tend to buy as close to home as possible since it is inferred that there may be a number of service trips during the warranty period of a new vehicle. A round-trip of from 30 to 60 minutes to deliver a car for service in the morning and again to pick up the car in the evening would be a significant impediment to sales by the distant dealership. Retail buyers, therefore, are more likely to buy close to home to avoid longer drives for the initial sale and subsequent service trips. T. 178. Polk County has substantially more Ford and General Motors dealerships than Chrysler dealerships. T. 174; P. Ex. C-35. There are nine Ford dealerships (two Lincoln-Mercury dealers), an apparent fifteen General Motors dealerships, and only three Chrysler dealerships in Polk County. Id.; T. 99- 100. Ford has 11 car line outlets represented through a storefront, General Motors has 20 car line outlets, and Chrysler has 8 line outlets in Polk County. P. Ex. 41; T. 176. Polk County has 7 places to buy a Ford, 6 places to buy a Chevrolet, 2 places to buy a Mercury, 2 places to buy a Lincoln, 4 places to buy a Buick, 4 places to buy an Oldsmobile, 4 places to buy a Pontiac, and 2 places to buy a Cadillac. Polk County has only 2 places to buy a Plymouth, 3 places to buy a Chrysler, and 3 places to buy a Dodge. Id. Tom Edwards, Inc., asserts that Polk County has comparatively more Chrysler sales outlets than Hills borough or Pinellas Counties. Since those counties have greater populations than Polk County, Tom Edwards, Inc., argues that there are too many Chrysler outlets now in Polk County. Respondent's proposed finding of fact 8. But an outlet in Hillsborough County, for example, typically has a much larger planning potential than an outlet in Polk County. Some have a planning potential of as much as 1,797. T. 305-07. Thus, an outlet in Hillsborough County may well be expected to serve many more people than an outlet in Polk County having a planning potential of only 225. (See the discussion of planning potential ahead.) The record lacks the type of comparative evidence and expert opinion to establish a proper comparative standard between counties. Thus, Ford and General Motors vehicles are more likely to be purchased than Chrysler vehicles by residents of Polk County due to the comparatively greater number of such dealerships and line outlets. T. 179-80; P. Exs. C-40. Chrysler Corporation establishes its own concept of the "planning potential" for a given sales locality based upon the size of the market, past sales, and zone penetration. T. 253. Chrysler Corporation sets its own standards for the size and character of buildings and land that should be a part of a dealership in a sales locality having a particular planning potential. T. 255. The Respondent's dealership is in the Bartow sales locality. The Bartow sales locality has a planning potential set by Chrysler of 225. T. 257. Chrysler's standard for the square footage of buildings and land for the Bartow sales locality is 40,950 square feet. T. 255. Thus, Respondent's dealership does not meet the standards set by Chrysler for the square footage of buildings and land. The Chrysler dealership in the Lakeland sales locality similarly has buildings and land of lesser square footage than set by Chrysler as a standard for the planning potential of that locality. T. 259-60. The Chrysler dealership in the Winter Haven sales locality has adequate land for its planning potential by Chrysler standards, but has inadequate square footage for buildings by Chrysler standards. T. 262-63. Based upon all of the foregoing, Chrysler Motors Corporation is not being adequately represented in either Polk County or the Lake Wales sales locality by Chrysler dealers located in Polk County, in Florida, or elsewhere in the United States. T. 183-84.
Recommendation For these reasons, it is recommended that the Department of Highway Safety and Motor Vehicles enter its final order approving the application of Lake Wales Chrysler Plymouth Dodge, Inc., for a license as a dealer of Chrysler, Plymouth, and Dodge automobiles, and Dodge trucks, Lake Wales, Florida. DONE and ENTERED this 24th day of September, 1987. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0962 The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioners: 24 through 28. These proposed findings of fact are true, but are subordinate to findings of fact adopted in the recommended order. These findings of fact, however, are adopted by reference. 38. Cumulative to other findings of fact, and thus not necessary. 42 through 44. These proposed findings of fact are true, but are subordinate to findings of fact adopted in the recommended order. These findings of fact, however, are adopted by reference. 47 through 65. These proposed findings of fact are true, but are subordinate to findings of fact adopted in the recommended order. These findings of fact, however, are adopted by reference. 74, 76, and 77. These proposed findings of fact are true, but are subordinate to findings of fact adopted in the recommended order. These findings of fact, however, are adopted by reference. 81 through 84. The statistics relative to domestic-import mix were significant only with respect to trucks. The truck percentages of penetration in Polk County (24.5 percent and 23.8 percent) were very similar to the percentages for respective penetration in the United States (23.1 percent and 23.4 percent). Lake Wales (20.0 percent and 20.5 percent) was less similar. The percentages in Polk County and Lake Wales for car were not sufficiently similar to either the zone or the United States for any conclusion to be drawn. Thus, the conclusion in proposed finding of fact 84 is rejected. 93 and 94. Cumulative to other findings of fact, and thus not necessary. 95. Cumulative to other findings of fact, and thus not necessary. Failure to meet the national average penetration is, by definition, failure of average penetration. 96 through 100. True, but cumulative to other findings of fact, and thus not necessary. The analysis in these proposed findings of fact simply views the numbers from another perspective. The basic numbers are the same. 101. The third sentence is an issue of law, not fact. 103. The fact that Mr. Edwards could not remember the name of the Chrysler representative is true, but does not persuade the Hearing Officer that his memory of the contact with a Chrysler representative was faulty. R. Ex. 7 clearly shows that the Chrysler Corporation took the initiative in a general sense to encourage Tom Edwards, Inc., to advertise in the yellow pages. 105. While R. Ex. 7 shows that Tom Edwards, Inc., alone paid for yellow pages advertising in the Lake Wales telephone directory in 1985, this is not evidence as to what happened in 1981. Mr. Edwards' testimony that Chrysler paid for such advertising in 1981 is believed rather than an inference to be drawn from 1985 evidence. Findings of fact proposed by the Respondent: 4. As discussed in the conclusions of law, the qualifications of the applicant to operate a new vehicle dealership are not relevant in this case. Further, the qualifications of the protesting dealership are not relevant either. There is no issue in this case concerning noncompliance with dealership agreements. The only issue is the adequacy of representation in the community or territory as shown by registrations of new Chrysler vehicles, regardless of origin. This proposed finding of fact is rejected for the reasons stated in finding of fact 63. This proposed finding of fact is rejected for the reasons stated in finding of fact 66. That the Respondent has been allowed and encouraged to sell vehicles in Lake Wales, or may be harmed economically if the Lake Wales dealership is established, may be important to show that the Respondent has a substantial interest and is entitled to a formal administrative hearing, but is essentially irrelevant to the question of whether the Petitioner's application should be approved. The question is whether Polk County and Lake Wales have adequate representation as shown by registrations of new vehicles, regardless of the origin of the sale. The Respondent did not present any evidence as to the historic comparative sales of General Motors, Ford, and Chrysler, or how such comparative data might be instructive as to the proper number of outlets that should be allowed based upon historic market share. If such evidence exists within the data presented by the Petitioners, it was the Respondent's burden to identify it either by testimony or by argument. It has done neither. Thus, the fifth through ninth sentences of this proposed finding of fact are rejected for lack of citation to evidence in the record. 12. This proposed finding of fact is irrelevant. The performance of Tom Edwards, Inc., is not at issue in this case. The issue is whether there have been an adequate number of registrations in either Polk County or the Lake Wales area. The failure of such registrations to reach an adequate level, as shown by the evidence, is the failure of all Chrysler dealerships, despite what may have been relatively good, or at least acceptable, performance by Tom Edwards, Inc. COPIES FURNISHED: Allan M. Huss, Esquire Senior Staff Counsel Chrysler Motors Corporation Post Office Box 1919 Detroit, Michigan 48288 Dean Bunch, Esquire Rumberger, Kirk, Caldwell Cabaniss & Burke, P.A. Suite 900, 101 North Monroe Street Tallahassee, Florida 32301 Frank J. Rouse, Esquire 680 East Main Street Bartow, Florida 33830 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, Esquire General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lisa Shearer Nelson, 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 Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent's notice of withdrawal. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Gas Sippers, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 6480 20th Street, #106, Vero Beach (Indian River County), Florida 32966 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed October 15, 2009 3:39 PM Division of Administrative Hearings. DONE AND ORDERED this ;J? ay of October, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this _/;JJJ day of October, 2009. . 0..- .t.dmlnlstrallo 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 Rules of Appellate Procedure. CAF:vlg Copies furnished: John Dikov Valley Scooters, LLC 1687 Blythe Island Drive Brunswick, Georgia 31523 2
Findings Of Fact The Parties. Chrysler is a manufacturer of trucks and automobiles, including Jeep trucks and Eagle automobiles. Milton Dodge is a proposed dealer/operator of a proposed new Jeep-Eagle dealership. Milton Dodge currently sells Chrysler, Plymouth, Dodge and Dodge trucks. Don Dawson is an existing franchised Jeep-Eagle dealership located on U. S. 29, Pensacola, Escambia County, Florida. Don Dawson is located approximately 17.5 miles from the proposed Milton Dodge dealership location. Santa Rosa County, where the new dealership is to be located, has a population of less than 300,000 persons. All of the parties have standing to participate in this proceeding. The Application for A New Dealership. Chrysler has sought a permit to establish an additional Jeep-Eagle dealership for the sale of Jeep trucks and Eagle automobiles in Milton, Santa Rosa County, Florida. Don Dawson filed a timely protest to Chrysler's application pursuant to Section 320.642, Florida Statutes. The Community or Territory. The Milton Dodge proposed new dealership is to be located on U. S. 90, West of Milton, Santa Rosa County, Florida. Chrysler assigns its franchised dealerships a primary area of responsibility called a "sales locality." The sales locality of each dealer is specified in the dealer agreement between the dealer and Chrysler. Each sales locality consists of post office towns. A post office town is an area within which mail is delivered from a particular post office. Post office towns are not limited to political boundaries. The sales locality for Milton Dodge, the Milton sales locality, consists of the towns of Milton, Bagdad, and Harold, all of which are located in Santa Rosa County, Florida. To the west and southwest of the Milton sales locality is the Pensacola sales locality. The Pensacola sales locality consists of the towns of Molino, Cantonment, Gonzalez, Gulf Breeze, Lillian and Pensacola. All of the towns, except Lillian, Alabama, are located in Escambia County, Florida. Pursuant to its dealer agreement with Chrysler, Don Dawson is located in the Pensacola sales locality. To the east and southeast of the Milton sales locality is the Fort Walton Beach sales locality. This sales locality consists of the towns of Niceville, Shalimar, Destin, Mary Esther, Valparaiso and Fort Walton Beach, and Eglin Air Force Base, all of which are located in Okaloosa County, Florida. There is a Jeep-Eagle dealership, Lee Jeep Eagle, located in Fort Walton Beach. The sales locality assigned to a dealer is representative of the area in which the dealer is expected to have a competitive advantage over the same line-make dealers simply because of location. The Milton sales locality and the Pensacola sales locality are separate and distinct markets. The evidence proved, and the Petitioners and Don Dawson both agreed in their proposed recommended orders, that the relevant community or territory in this proceeding is the Milton sales locality. Adequacy of Representation. General. Once the community or territory has been identified, Section 320.642, Florida Statutes, requires a determination as to whether existing dealers have been providing "adequate representation" of the line-make of the new dealership. In order to determine whether there has been adequate representation in the Milton sales locality of Jeep trucks and Eagle automobiles, eleven factors set out in Section 320.642(2)(b), Florida Statutes, are to be considered. In order to determine whether existing dealers have been providing adequate representation, a reasonable standard of performance may be determined as a measure of proper performance. The standard(s) for comparison in this matter is described, infra, in section II.D. of this Recommended Order. Section 320.642(2)(b)1, Florida Statutes; Impact on Existing Dealers. Only the possible impact on Don Dawson, the protesting dealer in this proceeding, may be considered in applying this factor. New vehicle transactions, including sales, servicing, parts' sales and financing and insurance, represent approximately 70% of Don Dawson's income. In 1990, Don Dawson sold new motor vehicles to persons whose addresses were within the Milton sales locality. In 1989, Don Dawson sold nine automobiles and trucks (5% of its total 178 sales) to customers whose addresses were within the Milton sales locality. In 1989, approximately 59% of Don Dawson's total sales were to persons whose addresses were within the Pensacola sales locality. During 1990, approximately 55% of Don Dawson's new motor vehicle sales were to persons whose addresses were within 20 miles of the proposed new dealership location. In 1989, Don Dawson had a gross profit per new vehicle of $1,322.00. Don Dawson lost $101,004.00 on the sale of 179 new vehicles. Don Dawson was profitable in 1990 ($13,102.00; gross profit per new vehicle of $1,503.00 on 195 new vehicles) and the first eight months of 1991. During 1990, Don Dawson paid a total of $75,000.00 to $80,000.00 to its equity owners. Although the evidence supports a conclusion that it is possible that Don Dawson may suffer some loss in sales of Jeep trucks and/or Eagle automobiles, the weight of the evidence failed to prove what the total or general financial impact of the proposed new dealership might be on Don Dawson. Based upon the findings of fact, infra, concerning inadequate market penetration in the Milton sales locality, it is likely that the addition of the proposed new dealership will not negatively impact on Don Dawson's sales opportunities. Section 320.642(2)(b)2, Florida Statutes; Investment and Obligations of Existing Dealers. Don Dawson has a considerable investment in tools, parts and improvements to the property it leases from Chrysler. The evidence failed to prove that Don Dawson's investment is inadequate. Section 320.642(2)(b)3, Florida Statutes; Reasonably Expected Market Penetration for the Community or Territory. In analyzing the proper performance in a market, it is appropriate to compare the market share or market penetration of vehicle registrations within a target market with the share of vehicle registrations in an appropriate comparison market. It is appropriate to use a "segmented" approach in comparing markets. For example, in order to determine Jeep truck (or Eagle automobiles) market share, the total truck industry (or similar automobiles to those manufactured by Eagle) are compared. Jeep and Eagle market penetration in the nation as a whole and in Florida sales localities is represented by national averages and Florida sales locality averages. National markets and markets in the Florida sales localities include adequately and inadequately represented Jeep and Eagle represented markets. Therefore, these averages are very conservative. In light of the fact that the averages are the conservative it is reasonable to use the higher of the national or the Florida sales localities averages as a starting point. For Jeep, the higher standard is the national average penetration. For Eagle, the higher standard is the Florida sales localities average penetration. Florida penetration is based upon all of Florida except four small towns which are included in Alabama sales localities. It also includes one town in Alabama included in the Pensacola sales locality. After determining the national and Florida averages, it is appropriate to compare how other areas lived up to these standards. Of 68 sales localities in Florida, 32 performed above national averages for Jeep. Thirty of those that performed above national average and all that are above the Florida average (12 sales localities) have Jeep representation. A similar result is reached when Eagle penetration is reviewed. A consideration of demographics and lifestyle characteristics, based upon a comparison of the relative popularity of various vehicle types in the Milton sales locality, independent of brand type, compared to the relative popularity of the same vehicle types in Florida and nationally, confirms the reasonableness of the use of Florida and national average penetration rates as a standard. A reasonable market share expectation for Jeep for the Milton sales locality is 4.74%. A reasonable market share expectation for Eagle for the Milton sales locality is 0.95%. As is discussed, infra, Jeep-Eagle penetration in the Milton sales locality has been below these expected penetration rates indicating inadequate representation in the community or territory. The proposed new dealership location is part of a geographic area designated by Chrysler as the New Orleans Zone. This zone consists of part of the panhandle area of Florida (the northwest portion of Florida), Alabama, Mississippi and Louisiana. Like Florida and the nation as a whole, there are areas within the New Orleans Zone that do not have Jeep-Eagle dealers. Unlike Florida, where there are only 38 sales localities and 20 markets without a Jeep-Eagle dealer, there are 111 sales localities and 47 markets in the New Orleans Zone where there is no Jeep-Eagle dealer. Each Jeep-Eagle dealership is in effect assigned a minimum sales responsibility review. This review is based upon a comparison of a dealer's sales with average sales in the zone the dealer is assigned to. The weight of the evidence, however, failed to prove that dealers who meet their minimum sales responsibility are necessarily providing adequate representation. Although a comparison of sales performance of each dealer in the New Orleans Zone is made by Chrysler with the average performance within the zone as a whole, and the proposed new dealership location is within the New Orleans Zone, the weight of the evidence failed to prove that the penetration rate in the New Orleans Zone is the appropriate standard for measurement of adequate representation. The New Orleans Zone is an area established for administrative convenience. The New Orleans Zone was not established for marketing comparisons. The evidence did not prove that, other than geographic proximity, the zone is comparable. Section 320.642(2)(b)4, Florida Statutes; Actions of the Licensee Denying Existing Dealers Opportunity for Reasonable Growth, Market Expansion or Relocation. The weight of the evidence failed to prove that Chrysler has taken any action to deny Don Dawson or any other exiting dealer opportunity for reasonable growth, market expansion or relocation. The site that Don Dawson is located at is controlled by Chrysler. Don Dawson must negotiate a lease of its facilities from Chrysler and must get approval from Chrysler to add additional vehicle types. Don Dawson has had difficulty at times getting certain vehicle types from Chrysler. The weight of the evidence, however, failed to prove that any of these facts constituted any action by Chrysler to prevent Don Dawson from growing or expanding its market, or that these facts relate to any request of Don Dawson to relocate. Section 320.642(2)(b)5, Florida Statutes; Attempts by the Licensee to Coerce Existing Dealers into Consenting. The weight of the evidence failed to prove that this factor is relevant in this proceeding. Section 320.642(2)(b)6, Florida Statutes; Geographic Factors. It is approximately 17.5 miles from the proposed Milton Dodge dealership location and Don Dawson. It takes approximately 29 minutes to travel by automobile from Milton Dodge to Don Dawson. It takes approximately 51 minutes to drive the 40.4 miles from Milton Dodge to Lee Jeep Eagle in Fort Walton Beach. Jeep Eagle buyers in Pensacola and Fort Walton Beach must travel fairly extensive distances to comparison shop. Evidence concerning relevant geographic factors support approval of the new Milton Dodge dealership. Section 320.642(2)(c)7, Florida Statutes; Benefits to Consumers. Consumers in the Milton sales locality will benefit because they will not have to travel to Pensacola or Fort Walton Beach if they are interested in Jeep-Eagle vehicles. It will be easier for consumers in Pensacola to comparison shop. There will be some slight benefit to consumers in the Milton sales locality because Jeep trucks and Eagle automobiles will be more readily accessible to them if a new dealership is located in the proposed new location. The possible benefits to consumers supports approval of the proposed new dealership. Section 320.642(2)(b)8, Florida Statutes; Compliance with Dealer Agreements. The weight of the evidence failed to prove that any existing dealers are not in full compliance with the dealer agreements with Chrysler. Section 320.642(2)(b)9, Florida Statutes; Adequate Inter- and Intra-Brand Competition. There is a lack of intra-brand competition in the Milton sales locality. This contributes to inadequate representation for Jeep-Eagle vehicles in the Milton sales locality. The negative impact of the lack of proximity of a Jeep-Eagle dealer to the Milton sales locality on representation is evidenced, in part, by a comparison of market penetration in Milton compared with market penetration in Pensacola, where a dealer is located. Existing Jeep-Eagle dealers are not providing adequate intra-brand competition in the Milton sales locality. Because of high population growth in Santa Rosa County and high inter- brand competition in the Milton sales locality, representation of Jeep-Eagle is inadequate based upon inter- and intra-brand competition. Adding a Jeep-Eagle dealership to the Milton sales locality is a reasonable solution to the inadequate representation in the Milton sales locality when the performance of similar line-makes with dealerships located in the Milton sales locality are compared to national and Florida average penetration rates. Line-makes not represented in the Milton sales locality have low penetration rates. Section 320.642(2)(b)10, Florida Statutes; Economic and Marketing Conditions. On a nationwide basis there have been significant declines of approximately 21% in the sales of Jeep trucks and Eagle automobiles between 1989 and 1990. Looking at the trend in sales of Jeep and Eagle vehicles over a longer period of time, however, indicates the very cyclical nature of vehicle sales. Although the current condition of vehicle sales and the economy as a whole gives reason to consider the new dealership with some skepticism, the weight of the evidence failed to prove that the recent trend in the economy or vehicle sales should be determinative in this case. Pensacola, Milton and the surrounding areas have experienced a significant growth between 1980 and 1990. Santa Rosa County, where Milton is located, is projected through 1995 to experience substantial growth in total population, population 16 (the driving age) and over, and in household trends. Although much of the projected growth will occur along the Gulf of Mexico coast, as opposed to around Milton, Santa Rosa, including Milton, should continue to be an attractive area for vehicle sales. This finding is based upon the data concerning income of the population and the favorable economic conditions existing and forecasted for the area (see Petitioner's proposed finding of fact 73). Section 320.642(2)(b)11, Florida Statutes; Volume of Registrations By the Existing Dealer in the Community or Territory of the Proposed Dealer. The penetration by Jeep in the Milton sales locality during the period 1987-1990 was significantly less that the penetration which reasonably could be expected (see finding of fact 39) based upon national and Florida penetration rates. Although Eagle performed a little better in more recent years than Jeep, the penetration by Eagle during the period 1987-1990 was also significantly less that the penetration which reasonably could be expected based (see finding of fact 39) upon national and Florida penetration rates. Conclusion. Based upon a balanced consideration of the factors of Section 320.642(2)(b), Florida Statutes, the proposed new Jeep-Eagle dealership should be approved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order approving the application to establish a new Jeep-Eagle dealership on 800 West Highway 90, Milton, Santa Rosa County, Florida. DONE and ENTERED this 18th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Chrysler's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 and 6. 3 and 6. 3 3-5 and 7. Conclusions of law. See 19-21. Conclusions of law. Hereby accepted. 7 9-10. 8 12-13. 9 11 and 14. Cumulative. 16 and hereby accepted. 12-14 Cumulative. 15 24 and hereby accepted. 16-18 Hereby accepted. 19-22 Although these findings of fact are correct, it is unnecessary to consider the alternative community or territory of the Milton/Pensacola area identified by Chrysler. 23 See 18. Don Dawson did not have the burden of proof. 24 19. 25 See 47, 53-54 and 57. See 47. Hereby accepted. See 57. No a finding of fact. 30 32-33. 31 Don Dawson did not have the burden of proof. Don Dawson did provide some proof concerning this issue. 32 32-34. 33 35. 34 37. 35 37 and hereby accepted. 36-38 Subordinate facts. 39-41 See 38. 42 39. 43-44 Not necessary. See proposed findings of fact 19-22. 45-46 39 and hereby accepted. Not necessary. See proposed findings of fact 19-22. Subordinate fact. See 69. 50 69. 51-53 Cumulative facts. Not necessary. See proposed findings of fact 19-22. Cumulative facts. Not necessary. See proposed findings of fact 19-22. Hereby accepted. 58 See 41-44. 59 43-44. 60 41. 61 Hereby accepted. 62 See 41-44. 63-64 Hereby accepted. 65 See section K. 66 61. 67 Hereby accepted. 68 See 61, 66-67. 69 66-67. 70 67. 71-72 68 and hereby accepted. Cumulative facts. 66 and hereby accepted. 75-76 59 and hereby accepted. 77 58 and 60. 78-79 Too speculative. 80 48-49. 81 51. 82 61. See 58-62 and hereby accepted. See 59 and hereby accepted. 85 62. 86 Hereby accepted. 87 See 45-46. 88 22. 89 26. 90 See 28. 91 29. 92-93 Hereby accepted. Cumulative facts. See 35. 96 See 30-31. 97 Not relevant. Don Dawson's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 11-12. 3 Hereby accepted. 4 17. 5* 24. 6* 48. 6* See 18. 5* 32. 6* 33 and hereby accepted. 7 40. See 42. Hereby accepted. Not supported by the weight of the evidence. See 42- 44. Not relevant. Not supported by the weight of the evidence. Based on hearsay. Not relevant. See 42-44. Not relevant. 15 63. 16 Not relevant. At issue is the penetration rate in the Milton sales locality. 17 25-26. 18 27. 19 See 46. 20 23. 21 30. 22 Not relevant. Nor did the evidence prove why the offer was withdrawn. 23 2. 24-26 Not supported by the weight of the evidence. 27 See 25-26. The last sentence is not supported by the weight of the evidence. * These duplicative numbered findings of fact all appear on page 4 of Don Dawson's proposed recommended order.e COPIES FURNISHED: Dean Bunch, Esquire Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301 Edward H. Weeby, Esquire Office of General Counsel Chrysler Corporation 12000 Chrysler Drive Detroit, Michigan 48288 John L. Fiveash, Jr., Esquire Rhodes Building, Suite 106 41 North Jefferson Street Pensacola, Florida 32501-5643 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Myers & Forehand 402 North Office Plaza Drive Suite B Tallahassee, Florida 32301 Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles Room A432 Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500
Findings Of Fact By an application dated October 19, 1982 Petitioner Losada applied for a license to engage in the business of buying, selling, or dealing in motor vehicles bearing the name plates of Volvo, White, Autocar and Western Star in the State of Florida with an area of responsibility (AOR) of Dade County. The address of the dealership to be franchised by Petitioner Volvo White is 6000 Northwest 77 Court, Miami, Florida 33166. Volvo White came into existence as a corporate entity in the United States in June of 1981. It began business operations in September of the same year. Volvo White distributes trucks under the name plates of Volvo, White and Autocar throughout the Continental United States. The company previously distributed Western Star trucks until March 1983, at which time its agreement with the manufacturer terminated. Prior to September 1981 Volvo trucks were distributed in the United States by the Freightliner Corporation. White, Autocar and Western Star trucks were distributed by the White Motor Corporation which Subsequently went into Chapter 11 bankruptcy proceedings. McCasland and Volvo White entered into a Dealer Sales and Service Agreement on September 1, 1981. According to that Agreement Volvo White granted to McCasland the non-exclusive right to purchase White, Western Star and Autocar trucks and parts. In a subsequent Dealer Sales and Service Agreement dated January 1, 1982 Volvo White granted to McCasland a franchise right to purchase Volvo trucks and parts. Both agreements specify that the geographical area of responsibility in which McCasland is required to fulfill its dealer's obligation are the counties of Broward, Collier, Glades, Monroe and Palm Beach in Florida. Prior to entering into an agreement with Volvo White, McCasland had been selling the same products as a dealer for both the now defunct White Motor Corporation and the Freightliner Corporation. McCasland has two facilities. One is in Broward County and the other is in Dade County. The Broward County facility located at 2431 State Road 7 in Fort Lauderdale is its headquarters from which it sells and services the vehicles listed above. In Dade County it operates a parts sales facility at 7388 Northwest 72nd Avenue, Miami, Florida. In the summer of 1982 Volvo White and McCasland discussed an application by McCasland to increase its area of responsibility to include Dade County. In July of 1982 McCasland submitted a Marketing and Sales Action Plan for Dade County which included proposals to hire additional truck salesmen, parts counter people and mechanics. The plan did not include financial information acceptable to Volvo White however. As indicated by the subsequent application of Losada for a dealership license, Volvo White later determined that Losada was better able to serve the Dade County AOR. This decision was based on Losada's existing facilities on a one and one-half acre site, shop facilities of approximately 15,000 square feet, and personnel including five new truck salesmen, nine mechanics, and seven parts men. Another consideration was the capitalization of Losada which was very sound as compared to McCasland's. McCasland had fallen so far behind on payments for his parts ordered from Volvo White that the dealership had to be placed on a C.O.D. status for parts. That status remained in effect as of the date of the final hearing. Both the area of responsibility already assigned to McCasland and the Dade County territory are each larger than the average area of responsibility usually franchised by Volvo White. If the two were combined under a single dealer, the resulting AOR would be the second largest in the southeast region, and would be the largest area of responsibility served by a franchise dealer rather than by a factory branch. It would be extremely difficult for an independent dealer to obtain the necessary capital to adequately serve a market as large as Dade County and McCasland's AOR combined. Due to the size of the Dade County area in terms of population and potential truck sales Volvo White's determination that it should be a separate area of responsibility is not an unreasonable one. The company's primary competitors, International Harvester, General Motors Corporation, Ford Motor Company and Mack Trucks have dealerships both in Broward County and Dade County. McCasland's Fort Lauderdale AOR and an AOR composed of Dade County would each constitute reasonably separate and independent markets capable of supporting independent Volvo White dealerships. The potential growth in both markets, while higher in the existing Fort Lauderdale AOR, is more than adequate for two dealerships. Since truck manufacturers are in the business of selling trucks and truck parts, the primary method of evaluating the adequacy of a dealer's representation in a particular community or territory is to examine the sales made by that dealer. These evaluations are usually competitive. That is, a dealer's sales are compared with the sales of all other competing dealers who sell competing truck lines. Such an evaluation is usually based on a percent of market share. 2/ The following table illustrates Volvo White's percentage of market share for the year of 1982 in the areas indicated: VOLVO WHITE 1982 PERCENT OF MARKET SHARE Ft. Laud National S.E. Region AOR Class 3/ 8 5.77 8.67 1.53 Class 7 1.69 2.42 0.00 Orlando Ft. Pierce AOR Dade AOR Class 8 8.45 20-25 13.64 0.67 /4 0.00 Tampa AOR Class 8 6.53 Class 7 0.00 As can be seen on the above table the percentage of market share for Dade County is from 20 to 25 percent. This high figure is the result of a large sale by McCasland to Metro-Dade County of 56 units. This sale, because of its magnitude, was certainly an unusual event. Because of its size Volvo White was willing to accommodate the county's specifications and to make unusually large concessions on the purchase price. The probability that such a large sale will be made by McCasland in the Dade County area in the future is not high. Nevertheless the sale was most definitely in the interest of Volvo White as the franchising manufacturer. During the 1982 sales year McCasland sold seven Volvo White trucks in the Fort Lauderdale AOR to a total of five customers. Only two of these were new customers. Of the sales made in Dade County only six customers were involved and of these only two were new customers. This is an inadequate development of what is known in the industry as a customer base for Volvo White products. When compared with dealers in Florida having comparable areas of responsibility, the Volvo White sales of truck parts in the Fort Lauderdale AOR is below standard. The sale of truck parts is a significant portion of Volvo White's overall income and is important to the company's interests. The poor sales performance of McCasland in both the Fort Lauderdale area of responsibility for trucks and truck parts and for truck parts in the Dade County area can be explained in a large part by McCasland's not employing sufficient truck salesmen and parts sales personnel. Additionally McCasland's efforts at advertising have been less than minimal in spite of joint participation plans sponsored by Volvo White. At the final hearing Mr. Merritt McCasland explained that if prospective truck customers sincerely wanted to purchase a truck they would discover his facility on their own. For instance, McCasland's salesmen do not contact potential customers in any of the counties within his assigned area of responsibility other than Broward County and to a lesser extent in Palm Beach County. His only advertising is one obsolete mailer. While McCasland does have a yellow page listing for the Broward County telephone directory, Mr. McCasland wasn't sure if he had one for Dade County and remembered that he does not have one for Palm Beach, Glades, Collier and Monroe counties. Mr. McCasland was particularly apathetic about developing customers among the Hispanic community. He saw no need to have salesmen of a Hispanic background able to speak Spanish. In his opinion if someone of a Hispanic background wants to buy a truck, they are only interested in the truck and don't care what language the salespeople speak. This attitude is extremely detrimental to properly representing the interest of Volvo White in Dade County which is the fifth largest Hispanic market in the United States. Volvo White offers training programs for both dealer sales personnel and maintenance people, yet during the period of its franchise, McCasland has not sent any of its staff to any Volvo White sponsored training school. Mr. McCasland believes that they are a waste of time. The agreements between Volvo White and McCasland require McCasland: to diligently and aggressively promote the sale of covered products within the AOR; to advertise and promote the sale of covered products throughout the AOR, making maximum use of advertising, sales promotion, and merchandising materials and programs provided by the company; to provide a full range of service for covered products and maintain equipment and tolls which are required or desirable to provide economical and efficient service to users; to handle customer complaints in a manner which will secure the goodwill of customers and the public toward the dealer, the company, and its products; to maintain its premises in good repair and appearance; to maintain adequate working capital; to employ and compensate trained and competent employees, trained sales and service personnel, and send reasonable numbers of employees to company-sponsored training schools or programs; and to maintain and timely furnish to the company the records and reports specified in the agreements. The terms of paragraphs (1), (2) and (7) of the agreements have been breached by McCasland by its failure to aggressively promote the sale of Volvo White products throughout the entire Fort Lauderdale area of responsibility; by McCasland's failure to advertise Volvo White products and to participate in the company-sponsored cooperative programs for advertising; and by McCasland's failure to send a reasonable number of employees to company-sponsored training schools or programs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Director of the Division of Motor Vehicles enter a Final Order approving the application of Losada Truck and Equipment, Inc. to become a motor vehicle dealer in Dade County, Florida, under a dealer sales agreement with Volvo White Truck Corporation. DONE and RECOMMENDED this 2nd day of November, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1983.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Robert E. Meale, 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 Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s withdrawal of his objection to the establishment of a new dealership, filed April 5, 2011. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Scott Koster d/b/a Sunrise Scooters, Inc., be granted a license for the sale of motorcycles manufactured by Taizhou Chuan! Motorcycle Manufacturing Co. Ltd. (CHUA) at 1923 South Federal Highway, Fort Lauderdale (Broward County), Florida 33316, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 19, 2011 12:28 PM Division of Administrative Hearings DONE AND ORDERED this Sh day of April, 2011, in Tallahassee, Leon County, Sandra C. Lambert, Seon Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motor Vehicles this_+Y day of April, 2011. alias Virogsl ‘Ramninistrator 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 Rules of Appellate Procedure. SCL:vlg Copies furnished: Noel Farbman USA Wholesale Scooters, Inc. 4316 North Dixie Highway Oakland Park, Florida 33334 * eel \ “FotattainimbA eango 1elsa ,AByeniV ini Scott Koster Sunrise Scooters, Inc. 300 Southwest 7 Street Fort Lauderdale, Florida 33316 Gloria Ma EI Sol Trading, Inc. 19877 Quiroz Court City of Industry, California 91789 Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order by, Daniel Manry, 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 as its Final Order in this matter. Accordingly, it is hereby ORDERED that Petitioner's, Galaxy Powersports, LLC d/b/a JCL International, LLC and TGT Companies, Inc., d/b/a Extreme Motor Sales, request to establish a new dealership for the sale of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) and Filed December 23, 2009 3:50 PM Division of Administrative Hearings. Benzhou Vehicle Industry Group Co. Ltd. (SHWI) at 1918 South Orange Blossom Trail, Apopka (Orange County), Florida 32703 is DENIED. DONE AND ORDERED this y /Id of December, 2009, in Tallahassee, Leon County, Florida. LCARL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of r¥otor Vehicles this P: day of December, 2009. N alini .DNlerUAdministrator 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 Rules of Appellate Procedure. CAF/vlg Copies furnished: Jude A. Mitchell Jude's Cycle Service Post Office Box 585574 Orlando, Florida 32858 Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Tina Wilson TGT Companies, Inc., d/b/a Extreme Motor Sales 1918 South Orange Blossom Trail Apopka, Florida 32703 Daniel Manry Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
