Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel Manry 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 a Second Joint Status Report. On October 2, 2009, the Department received a copy of the Respondent's Withdrawal of Protest. Accordingly, it is hereby ORDERED that the Dealer Agreement between American Suzuki Motor Corporation and Con's Cycle Center, Inc. d/b/a House of Power is terminated. Filed October 23, 2009 9:48 AM Division of Administrative Hearings. DONE AND ORDERED this 22 ay of October, 2009, in Tallahassee, Leon County, Florida. tor Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 2,:. .ct. Filed with the Clerk of the Division of Motor Vehicles this n day of October, 2009. Vlriaylllc,O... Admlnlslrlltor 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: Alex Kurkin, Esquire Kurkin Brandes, LLP 4300 Biscayne Boulevard, Suite 300 Miami, Florida 33137 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Elizabeth W. McArthur, 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 no license will be issued to Gorilla Motor Works LLC and Sunset Point Scooters, Inc. to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 2300 Sunset Point Road, Clearwater (Pinellas County), Florida 33765. Filed June 23, 2011 8:00 AM Division of Administrative Hearings DONE AND ORDERED this _ 7 7 day of June, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Intérim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_/7 day of June, 2011. S ini 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. SCL:vlg Copies furnished: Diana Hammer Gorilla Motor Works LLC 12485 44" Street North, Suite A Clearwater, Florida 33762 Michelle R. Stanley Tropical Scooters LLC 11610 Seminole Boulevard Largo, Florida 33778 totent2inimbA gan yslssQ ASyRGIY ins Doug Vitello Sunset Point Scooters, Inc. 112 South Maywood Avenue Clearwater, Florida 33765 Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Section
The Issue Whether Respondent, Department of Highway Safety and Motor Vehicles, should grant Petitioners', Willis S. Brigham and Michael Wayne Hampton, application for a motor vehicle dealer license under Section 320.642, Florida Statutes (1979), on the ground that existing Kawasaki motorcycle dealers are providing inadequate representation in the territory or community involved.
Findings Of Fact Based upon the evidence presented at hearing, the following findings of fact are determined: Applicant, Protestant, and Kawasaki APPLICANT applied to the DEPARTMENT for a motor vehicle dealer license authorizing it to operate a KAWASAKI franchise motorcycle dealership in DeLand, Volusia County, at 1645 East New York Avenue. (P.E. 2.) PROTESTANT owns and operates an existing KAWASAKI franchise motorcycle dealership in Daytona Beach, Volusia County, at 700 Ballough Road, and protests licensing of APPLICANT on the ground that the existing KAWASAKI dealer(s) are providing adequate representation in the DeLand area. PROTESTANT also owns two Honda motorcycle dealerships in the county, and the sole Suzuki dealership. (Testimony of Russell, Warfel, Prehearing Stipulation.) KAWASAKI is the national distributor for Kawasaki brand motorcycles, parts, and accessories. PROTESTANT is the only existing KAWASAKI franchise dealer in Volusia County; Kawasaki has determined that a second franchised dealership should be located in DeLand, and has executed a franchise agreement with APPLICANT toward that end. (Testimony of Sutton; P.E. 1, 2, 5, 6.) KAWASAKI and its franchised dealers, including APPLICANT and PROTESTANT, operate under agreements which grant dealers a non-exclusive right to sell and service KAWASAKI products within an "area of primary responsibility"--defined as territory falling within a five-mile radius from the dealer's location. The dealer agrees to aggressively develop and promote the sale of Kawasaki products and maintain a specified level of market penetration in his area of primary responsibility. However, the dealer is free to promote and sell KAWASAKI products outside that five-mile area, and KAWASAKI expressly reserves the right to sell its products to other dealers or persons, whether inside or outside the dealer's area of primary responsibility. In this case, the PROTESTANT's area of primary responsibility includes Daytona Beach, Daytona Beach Shores, South Daytona Beach, Holly Hill, and Ormond Beach, with an approximate population of 90,000. APPLICANT's proposed area of responsibility includes DeLand, Lake Helen, and part of Orange City, with an approximate population of 16,700. (Testimony of Sutton; P.E. 1, 2, 5, 6.) Territory Involved Volusia County is a large county, over 33 miles wide and 42 miles in length, with a population of approximately 241,786. Daytona Beach, its largest city with 50,830 people, is located among a chain of interconnecting communities in the county's eastern coastal region: Ormond Beach, Holly Hill, Daytona Beach Shores, South Daytona, Port Orange, Ponce Inlet, New Smyrna Beach, and Edgewater. The county's population is split between these eastern coastal communities, and a group of communities located in the western part of the county: principally DeLand, Orange City, and Deltona. DeLand is the largest western community, with a population of 14,090. Both Daytona Beach and DeLand have experienced rapid population growth between 1970 and 1980: Daytona Beach, with a 12.1 percent increase, DeLand with a 21 percent increase. The eastern and western parts are separated by a broad, sparsely populated, central area. The eastern and western halves of the county are connected by two major federal highways, Interstate 4 and U.S. 92. The distance by car between PROTESTANT's existing dealership in Daytona Beach, and APPLICANT's proposed dealership in DeLand is 23 miles, and takes approximately 30 minutes to travel. Long distance telephone rates apply to telephone calls between the two cities. (Testimony of Warfel; P.E. 4, 6.) Largely because of wide geographic separation between the population located in the eastern and western parts of the county, each part has developed distinct, and identifiable marketing areas for general retail businesses. General retail shopping patterns establish that the DeLand area has a retail business market separate and apart from Daytona Beach. Numerous motor vehicle manufacturers and distributors have self-sustaining franchise dealerships in DeLand, including Chrysler-AMC, Volkswagen, Chevrolet-Cadillac, Oldsmobile, Pontiac-Buick, Ford, and Chrysler. These manufacturers also maintain separate franchise dealerships in Daytona Beach. In addition, DeLand supports numerous franchised businesses unrelated to motor vehicles. (Testimony of Ritchey; P.E. 5, 6.) PROTESTANT has aggressively and diligently developed and promoted the sale of Kawasaki products within its five-mile area of primary responsibility. In 1980, in numbers of motorcycles purchased from KAWASAKI for retail sale, PROTESTANT was in the top 15 of 200 Southern Region dealerships. Notwithstanding its geographical disadvantage, PROTESTANT has also actively promoted and sold products in the DeLand area, where it advertises by radio and telephone book yellow pages. Six franchise motorcycle dealerships are located in the eastern part of the county: Honda (2), Yamaha (2), Suzuki (1), and Kawasaki (1), while none are located in the DeLand, or western part, of the county. (Testimony of Sutton, Russell, Warfel; P.E. 5, 6.) Initially, PROTESTANT agreed with KAWASAKI that a KAWASAKI dealership was needed in the DeLand area, and asked for the first opportunity to open one. Later, PROTESTANT concluded that a DeLand dealership would not be economically successful, and changed its position. (Testimony of Sutton, Russell, Warfel; P.E. 1.) Kawasaki Representation and Market Penetration Market penetration relative to competitors is a standard tool for measuring the adequacy and performance of a motor vehicle dealership. In KAWASAKI franchise agreements, the parties agree that KAWASAKI may "expect" from the dealer a market penetration in its five-mile area of primary responsibility at least equal to KAWASAKI's national market penetration. Market penetration is ordinarily determined by use of R. L. Polk and Co., motor vehicle statistics based on new vehicle registrations categorized by zip code designation. (Testimony of Sutton, Warfel, Russell; P.E. 1, 2, 3, Tr. 30.) The four largest selling motorcycles in the United States are Honda, Yamaha, Kawasaki, and Suzuki. The relative penetration of KAWASAKI during 1979 in comparable market areas is: AREA of C0MPARISON HONDA YAMAHA KAWASAKI SUZUKI United States 39.20 33.82 14.94 13.34 Florida . . . . . . 17.03 . . . Volusia County 38.43 20.47 17.04 7.98 Daytona Beach 38.48 19.34 20.31 0.40 DeLand 38.89 20.47 13.19 13.89 (Testimony of Sutton, Warfel, Russell; P.E. 3.) R. L. Polk statistical surveys, based on new motorcycle registrations by post office town, show that KAWASAKI holds approximately a 20 percent share of the market in the PROTESTANT's primary area of responsibility (territory within five-mile radius) as compared to an approximate 12 percent share of the DeLand-Orange City area market. KAWASAKI's market share is less in the DeLand area than the Daytona Beach area, while its competitors' shares are greater. PROTESTANT admits that it would not be doing an adequate job in the Daytona Beach area if the KAWASAKI market share fell from 20 percent to 12 percent-- KAWASAKI's share of the DeLand area market: [Counsel for Applicant] Q: "If your market share in Daytona went down from 20 percent in the Daytona Beach area, close by home, if it went down from 20 percent to 12 percent this year, would you think that you were doing an adequate job within Daytona? [Robert Warfel] A: No, sir." (Tr. 106.) The population of the DeLand area, defined by a five-mile radius from the proposed dealership, is approximately 27 percent of the population of the comparable Daytona Beach area; however, PROTESTANT's sales in the DeLand area account for only 8 percent of its sales within its area of primary responsibility and 10 percent of its total sales. (Testimony of Warfel, Sutton; P.E. 3.) As a general rule, KAWASAKI dealers make 80 percent of their sales within their five-mile radius areas of primary responsibility. This is attributable to the shopping habits of customers: people prefer to purchase motorcycles from dealers which are convenient, close by, and readily accessible. In this case, PROTESTANT's sales experience is consistent with this customer preference--65 percent of its sales occur within its area of primary responsibility. In 1979, PROTESTANT sold 160 motorcycles within its Daytona Beach area of primary responsibility, and 19--10 percent of its sales--within the DeLand-Orange City area. Six additional sales were made by other KAWASAKI dealers to residents of Orange City residing outside of APPLICANT's proposed five-mile area of responsibility. If APPLICANT's proposed Kawasaki dealership is located in DeLand, KAWASAKI's representation and share of the DeLand area market would improve considerably. Even with a new dealership in DeLand, PROTESTANT expects to continue making substantial sales in that area. (Testimony of Sutton, Warfel; P.E. 5, 6.) Economic Viability of New Dealership in DeLand The APPLICANT now operates a profitable motorcycle service and repair shop in DeLand, although it sells only accessories. If its existing business was supplemented by sales of a major brand motorcycle--such as KAWASAKI--it is reasonable to expect that its business would increase and continue to flourish. (Testimony of Sutton, Russell.) Adoption and Rejection of Parties' Proposed Findings of Fact The parties' proposed findings of fact which are incorporated herein are adopted; in addition, PROTESTANT's proposed findings of fact Nos. 6, 7, 9, 10, 12, and 16 are adopted as supported by the evidence. However, PROTESTANT'S proposed finding of fact No. 11 is rejected as unsupported by the evidence. KAWASAKI presented evidence: (1) that the proposed dealership must make 50 motorcycle sales per year to operate profitably, assuming no income is received from other business operations (Tr. 57); (2) that sale of 65 percent of the units within the Proposed dealership's primary area of responsibility converts to 37.5 motorcycles per year, equivalent to a 26 percent market share of the total motorcycles (144 units) of all brands purchased in DeLand during 1979 (Tr. 58-61); and (3) that KAWASAKI has enjoyed market shares in excess of 26 percent in several urban areas: Jacksonville, 27 to 30 percent, and Tampa, 27 to 35 percent (Tr. 62). This constitutes substantial evidence that KAWASAKI has favorably evaluated the sales potential of the proposed new dealership in DeLand. Proposed finding of fact No. 13 is also rejected, as inconsistent with the evidence, infra, and finding of fact No. 13.
Conclusions Petitioners have sustained their burden of proof by demonstrating that existing Kawasaki motorcycle dealers are not providing adequate representation in the territory or community involved. Therefore, the application for license should be granted. Background On June 3, 1980, Petitioners, Willis S. Brigham and Michael Wayne Hampton, d/b/a Kawasaki of DeLand (hereinafter "APPLICANT") applied to the Respondent, Department of Highway Safety and Motor Vehicles (hereinafter "DEPARTMENT"), for a motor vehicle dealer's license authorizing it to operate a Kawasaki motorcycle dealership in DeLand, Florida. On June 30, 1980, Respondent, Daytona Sports Center, Inc. (hereinafter "PROTESTANT"), an existing Kawasaki dealership in Daytona Beach, Florida, protested licensing the proposed DeLand dealership, asserting that Petitioner, Kawasaki Motors Corp., U.S.A. (hereinafter "KAWASAKI"), was already adequately represented in the community or territory involved. PROTESTANT requested a hearing if the DEPARTMENT did not share its view, or was in doubt on this issue. On July 7, 1980, the DEPARTMENT forwarded this case to the Division of Administrative Hearings for the purpose of conducting the requested hearing. Hearing was thereafter set for September 19, 1980. On motion of the Petitioners, and without objection of the other parties, the hearing was continued, and reset for October 13, 1980. At final hearing, the Petitioners, APPLICANT and KAWASAKI, called as their witnesses: Dahlon G. Ritchey and Merrill Sutton, and offered Petitioners' Exhibits 1/ 1 through 11 into evidence, each of which was received. PROTESTANT called Robert R. Warfel and David B. Russell as its witnesses, and offered Respondent's Exhibits 1/ 1 through 3 into evidence, each of which was received. At close of hearing, the parties requested and were granted the opportunity to file proposed findings of fact and conclusions of law within 14 days from filing of the hearing transcript. It was also agreed that the 30-day period for submittal of the recommended order would begin when their proposed findings were filed. On November 10, 1980, the parties timely submitted their posthearing filings.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED: That the application of Willis S. Brigham and Michael Wayne Hampton d/b/a Kawasaki of DeLand be GRANTED. DONE and ENTERED this 10th day of December, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1980.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by J. D. Parrish, Administrative Law Judge 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 5:00 p.m.on December 03, 2009 as to why this matter should not be dismissed. The Department hereby adopts the Order Relinquishing Jurisdiction and 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 BMS Motorsports, Inc. and Scooter Depot, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 3651 Alafaya Trail, #102, Oviedo (Seminole County), Florida 32765. Filed December 17, 2009 8:29 AM Division of Administrative Hearings. DONE AND ORDERED this/ 5"i.f December, 2009, in Tallahassee, Leon County, Florida. A Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Divisu:,hf Filed with the Clerk of the Motor Vehicles . not-.. u this day of December, 2009. t :!ini Vinayak, Deelef' Admlnil1nllor 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: Patrick Kim BMS Motorsports, Inc. 1201 Jellick Avenue City of Industry, California 91748 Rob Loisel Scooter Depot, LLC 250 East Lake Mary Boulevard Sanford, Florida 32773 Tina Wilson TGT Companies, Inc. d/b/a Extreme Motor Sales 1918 South Orange Blossom Trail Apopka, Florida 32703 J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. 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 a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 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 ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator 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: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson 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 3
The Issue The issue in this case is whether the application of Stacy David, Inc. d/b/a Brandon Mitsubishi, ("Brandon Mitsubishi") and Mitsubishi Motor Sales of America, Inc. ("MMSA") to establish additional representation for Mitsubishi pursuant to Section 320.642, Florida Statutes, through the opening of a new dealership in Brandon, Hillsborough County, Florida, should be granted because of inadequate representation in the community or territory.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings: Petitioner, MMSA, seeks to permit the establishment of an additional Mitsubishi dealership for the sale of cars and trucks in Brandon, Hillsborough County, Florida. Brandon Mitsubishi is the proposed dealer/operator for the proposed facility. The proposed dealership would be located at 9909 Adamo Drive East, State Road 60, Brandon, Hillsborough County, Florida, which is a short distance east of the intersection of Adamo Drive and U.S. 301. Respondent, Courtesy Mitsubishi, is a franchised Mitsubishi dealer with facilities located on North Dale Mabry Highway, Tampa, Florida. Courtesy filed a timely protest to the application pursuant to Section 320.642, Florida Statutes. There is no dispute that Courtesy has standing to protest the establishment of the proposed dealership pursuant to Section 320.642, Florida Statutes, because the proposed location is less than 12.5 miles from the proposed Brandon Mitsubishi. Hillsborough County has a population of greater than 300,000 persons. Section 320.642(3)(b)1., Florida Statutes. 1/ The census tracts in Hillsborough and Pinellas Counties closest to the three existing dealerships and the proposed Brandon Dealership make up areas which are designated as the primary marketing areas, or PMAs, in which each dealership is located. A PMA represents the area in which an existing or proposed resident dealership has or should have a competitive advantage over same line-make dealers by virtue of the resident dealer's location. PMA sizes and their geographic areas are sometimes modified to reflect changing population patterns and consumer behavior. PMAs are defined by a census tract or, where census tracts cannot be used, by other geographic descriptions such as zip codes, which are assigned to the nearest dealer unless there is some overriding consideration, such as natural or man-made barriers or demonstrated consumer unwillingness to travel from one area to another as verified by consumer behavior data. Based upon the actual proposed location of Brandon Mitsubishi, the proposed dealership led to the creation of two PMAs. Here, for the purpose of the creation of the PMAs as reflected in MMSA's exhibits in this case, the actual location of the proposed dealership was utilized, and the PMAs were created based upon the census tracts closest to the actual location of Courtesy and the actual location of Brandon Mitsubishi. PMA 1, which is also referred to as the Tampa PMA, is the area in which Courtesy is located and has a geographic advantage. PMA 4, which is also referred to as the Brandon PMA, is the area in which the proposed Brandon Mitsubishi dealership would have an advantage. As discussed in more detail herein, Section 320.642 sets forth the conditions that must exist before a new motor vehicle dealership can be added to a market area. The statute provides that an application for a new dealership shall be denied if "the licensee [manufacturer or importer] fails to show that the existing franchise dealers . . . of the same line-make in the community or territory of the proposed dealership are not providing adequate representation of such line-make motor vehicles in such community or territory." This statute was amended in 1988 to specify several factors that can be considered in determining whether existing dealers are providing "adequate representation" of the manufacturer or importer in the "community or territory." Chapter 88-395, Laws of Florida, Section 320.642(2)(b).1-.11. Each of these factors is addressed below. In view of the first statutory framework, the first issue to be addressed is the identification of an appropriate community or territory. COMMUNITY OR TERRITORY The statute does not provide any specific criteria for identifying the "community or territory." 2/ Consumer behavior is also properly used to identify any separate interconnected markets within the Tampa Metro. For example, in this case, cross-sell data is used to determine whether the two sides of Tampa Bay, i.e., Pinellas and Hillsborough Counties, properly constitute a single community or territory or, in the alternative, are two separate markets from the standpoint of Mitsubishi consumers. Consumer behavior data is utilized in making decisions concerning the definition of community or territory because of the uniqueness of the automobile business in gathering a complete set of data for all vehicles which are registered in the United States. This data facilitates examination of what consumers actually did, as opposed to projecting or predicting what they probably did based upon a sample of data. Because of the availability of this data reflecting actual consumer behavior, it is a more valid basis for making decisions concerning the automobile market than surveys which attempt to gather the state-of-mind perceptions of consumers. In determining the community or territory, it is appropriate to begin with a consideration of the contractual areas assigned to the three dealers in the Tampa Metro by their contracts with MMSA. 3/ Each of the three dealers have separate geographical areas assigned to them in their contracts or dealer agreements with MMSA. Courtesy is assigned the City of Tampa and Crown is assigned the City of Clearwater. (MX Exhibits 1,2 & 3.) Since accepting this contractual definition of the City of Tampa would exclude consideration of the proposed Brandon site, which is outside of Tampa, it cannot be determined to be the community or territory for purposes of Section 320.642, Florida Statutes. It should be noted, however, that the three existing dealers are assigned separate contractual areas, and are not combined in one larger area which is assigned in common to all three dealers. This facet of the contractual definition is consistent with the definition of the community or territory as determined by consumer behavior. Two Mitsubishi dealers, called fringe dealers, occupy the areas contiguous to the Tampa Metro area. There is insufficient cross-sell to warrant inclusion in any of these areas occupied by fringe dealers in the community or territory. After excluding the potential fringe dealers from the community or territory, it is then appropriate to determine whether the Tampa Metro area constitutes a single homogeneous and interconnected automobile market, or two distinct markets separated by Tampa Bay. If Pinellas residents constitute a significant percentage of Courtesy's customers, and if Hillsborough residents constitute a significant percentage of the customers of Crown and Clearwater, then the two sides of Tampa Bay might be considered a single interconnected market. However, Courtesy registers approximately 75 percent of its retail registrations in Hillsborough County, whereas Crown, in St. Petersburg, and Clearwater Mitsubishi, register only 5.26 percent and 13.79 percent of their registrations, respectively in Hillsborough County. Based thereon, it is found that Mitsubishi shoppers generally shop on the side of the bay where they live, and Hillsborough County constitutes a separate community or territory, for the purpose of examining the Mitsubishi dealer network from Pinellas County. However, from the standpoint of the representation which Mitsubishi is receiving in the identifiable plot of the Brandon area, PMA 4, it would make no difference if the Tampa Metro (including Pinellas and Hillsborough Counties), were taken as a single community or territory. That is, the Brandon PMA would be a separate and identifiable plot regardless of the size of the community or territory chosen. Courtesy presented no alternative definition of the community or territory. Similarly, Courtesy made no similar evaluation of the definitions of the PMAs. However, Courtesy utilized data from early MMSA studies in which the location of the Brandon dealership was different from that location which is now the actual proposed location. Accordingly, the geographic definitions of the PMA's utilized by Courtesy, and the data based upon these definitions, were not based upon the actual proposed location and are rejected for use in this proceeding. II. ADEQUACY OF REPRESENTATION Having determined the community or territory, it is next determined whether the existing franchised dealers are providing "adequate representation" in the community or territory. In this regard, Section 320.642 specifies 11 factors that may be considered. These items were not intended to be all inclusive. No evidence was presented by either party concerning factors 5, 7 and 8 of Section 320.642. Factor 5 pertains to attempts by a manufacturer to coerce an existing dealer into not protesting the establishment of an additional dealership. Courtesy offered no proof that MMSA had attempted to coerce it into not protesting this application. Factor 7 provides the opportunity for a dealer to offer proof that the benefits to consumers, which would result from the addition of the proposed dealership, may be achieved by some demographic or geographical changes or expected changes. For example, if a manufacturer proposed to add a dealer on an island or other area to which access was difficult, the dealer could offer proof that a bridge was under construction to the island which would improve accessibility, and afford the same benefits to consumers that the addition of a dealership would offer. Courtesy offered no such proof. Factor 8 provides that an existing dealer's breach of his dealer agreement may be evidence of inadequate representation. MMSA did not contend, for the purposes of this proceeding, that Courtesy was in violation of its dealer agreement. The evidence which was presented by the parties regarding Factors 1, 2, 3, 4, 6, 9, 10 and 11 are analyzed below, in the order which follows from the presentation of the evidence. Development of a Reasonable Standard Factor 3 The reasonably expected market penetration of the line-make motor vehicle for the community or territory involved, after consideration of all factors which may affect said penetration, including, but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, or other factors affecting sales to consumers of the community or territory. This factor requires that a standard for market penetration be developed to measure the performance of a dealer network. Market penetration is the traditional standard utilized for this purpose. In other words, market penetration reflect the competitive efforts of all the different dealers of all brands into a single fairly simple indicator called market share, which is probably the single most important standard. Courtesy presented no penetration standard which it contended represented an appropriate level to support a conclusion that Mitsubishi is receiving adequate representation. MMSA, on the other hand, presented a comprehensive and reasonable process for developing a market standard, including a three-step process. First, a standard for comparison was presented. In looking for a comparison standard, the local area was surveyed first. If that local area is receiving adequate representation then that area is the beginning place for the selection of a standard. If the local area is not receiving adequate representation, then it would be invalid to use such an area that is receiving inadequate representation to build a standard for adequate representation. It would therefore be necessary to search for an area that is receiving adequate representation on average to build a standard. The next step in searching for a standard would be to look at a larger territory such as the State of Florida. If the State of Florida is receiving adequate representation then it would not be necessary to search further. If, on the other hand, Florida, on average, was not receiving adequate representation then it would be necessary to go to a larger area, such as the United States as a whole to ascertain an appropriate standard. In this case, because the Mitsubishi network is a relatively young network, having been started in the early 1980's, it is not reasonable to say that Mitsubishi has representation throughout the United States or even through the State of Florida. For example, Tallahassee did not have a Mitsubishi dealer until very recently. So, in reviewing a relatively immature dealer network, it would not be reasonable to take an overall average for the entire State of Florida, or the entire United States, as some indication of market share that you could expect if the dealer network were mature, and there were Mitsubishi dealers assigned territories throughout the entire state or throughout the entire United States. Mr. Wooley, the owner of Courtesy, agreed that it would not be reasonable to include an area such as Tallahassee in computing the national average if there were not a Mitsubishi dealership in Tallahassee. Accordingly, the Florida and national averages are based upon market penetration for the major markets, which are the markets in the United States in which Mitsubishi is represented. A standard of penetration which is used to determine whether there is adequate representation is a standard which Mitsubishi could expect if they have an adequate number of dealers, in adequate locations, who have adequate operations. Therefore, it is necessary to exclude areas from the computation of an average market penetration for areas which Mitsubishi does not have dealers. On the basis of reviewing the local area where Mitsubishi does have a dealer, the Florida areas where Mitsubishi is represented, and the national average of areas where Mitsubishi is represented, it appears that the Tampa PMA, or the area in which Courtesy is located, is receiving adequate representation. Accordingly, since Mitsubishi is registering 2.28 percent of the automotive industry in the Tampa or Courtesy PMA, that becomes a starting point to determine a standard for adequate representation in the Brandon PMA. The influence of local conditions such as demographic and lifestyle characteristic on consumer's auto purchasing decisions may justify deviations from the standard. All these factors may be accounted for by ascertaining the relative popularity of various vehicle types in Brandon, independent of brand, compared to their popularity in Tampa. Mitsubishi has traditionally arranged vehicles into seven automobile types (small/mini, low/middle, small sporty specialty, sports car, upper middle, luxury, and balance of industry). By calculating vehicle popularity deviations in Brandon from the Tampa PMA popularity, the market penetration for Mitsubishi in Tampa can be adjusted to attain an appropriate and conservative standard for what the Brandon PMA should expect if it is receiving adequate representation. The segment popularity analysis measures demand by actual consumer purchases rather than speculation on select demographic variables, providing a more reliable measure of unique local consumer preferences. In the truck market, the trucks are broken down into the three categories in which Mitsubishi offers a competing truck: compact pickup truck, compact cargo van, and compact sport utility. Utilizing the segment popularity analysis, the following reasonable minimum conservative market share expectations for Mitsubishi are determined: 2.27 percent for the Brandon PMA, and 2.26 percent for the Hillsborough Comm/Terr as a whole. Registration data reflects actual consumer purchases, implicitly reflecting effects of all demographic characteristics, including age and income, and local car-buying behavior. Additional demographic data confirms the results of the product popularity analysis. As further confirmation of expected penetration as an achievable minimum standard, Mitsubishi penetration in ten out of fourteen PMAs with existing dealerships exceeds the expected penetration for Mitsubishi in those markets. There is yet further evidence that the expected penetration standard is attainable and reasonable. In the Tampa PMA, and even in the Brandon PMA, numerous individual census tracts meet or exceed expected penetration. Also, looking at the fact that Brandon is lower in penetration than any other representation PMA in the State of Florida, leads to the conclusion that even with lower standards, Mitsubishi is not receiving adequate representation in the Brandon PMA. Looking at age and income characteristics, there are no extreme differences in the demographic characteristics of the population of Brandon versus the demographic characteristics of the population of the Tampa PMA, which would explain the difference in market penetration. Performance of the Dealer Network in Comparison to the Standard Factor 11 The volume of registrations and service business transacted by the existing dealer or dealers of the same line-make in the relevant community or territory of the proposed dealership. Mitsubishi penetration in the critical areas in this case was well below expected levels in 1989. Penetration in the Brandon PMA in 1989 was only 63.8 percent of Mitsubishi's minimum expected penetration (actual penetration of 1.13 percent as compared to expected penetration of 1.77 percent). In 1990, the situation worsened to the point where Mitsubishi was achieving only 38.8 percent of Mitsubishi's minimum expected penetration (actual penetration of 0.88 percent compared to expected penetration of 2.27 percent). Market penetration for Mitsubishi is the result of the efforts of all dealers in the U.S., not solely Courtesy. The difference between the Brandon PMA's market penetration and the Courtesy PMA's much higher market penetration of 2.28 percent is a very significant short-fall, given that the higher penetration rates are in an area immediately adjacent to Brandon, and strongly suggest that it will not be possible for a dealer in the Tampa area, no matter how effective that dealer is, to provide adequate representation in the Brandon PMA. This market penetration is a reflection of the fact that Brandon has been the site of many new car dealerships in the last five years, and further confirms that as more and more competitors come to Brandon, Mitsubishi will be in worse shape in its efforts to provide adequate inter-brand competition without having a dealership there. Other line-makes representation in Brandon, both traditional domestic brands and others, demonstrate the importance of having a dealership in Brandon and the effect of not having one. For example, Honda, which is the leading Japanese-named line-make, does not have a dealer in Brandon. Its market penetration in the Brandon PMA is one-half of its market penetration in the Tampa PMA. Lexus, Infinity, Acura, Mazda, Subaru, Diahatsu, Suzuki, and Hyundai have dealers in Tampa, but not in Brandon, and have market penetrations which are substantially less in Brandon than in Tampa. A striking example of the impact of the addition of a dealership in PMA 4, occurred after August 1989 when Nissan added a dealership. Nissan's market penetration in PMA 4 (Brandon) as compared to its market penetration in PMA 1 (Tampa) rose from 64 percent efficient in 1988 to 77 percent efficient in 1989, to 90 percent efficient in 1990. Nissan's Brandon dealership was licensed to do business in August 1989. If the community or territory is viewed as a whole, Mitsubishi achieved only 86 percent of its expected market penetration in 1989 and only 75.7 percent of its expected market penetration in 1990. Therefore, if viewed as one market, the community or territory as a whole is also receiving inadequate representation. However, the primary culprit or the primary reason for the community or territory to have a below average penetration rate is not the Tampa PMA, but solely the Brandon PMA. A similar pattern emerges when other potential standards are reviewed. Another potential standard is the three PMAs in which Mitsubishi has representation, namely Tampa, Clearwater and St. Petersburg. When broadening the size of the community to include these three represented PMAs, and utilizing this as a standard, Mitsubishi achieved only 60.8 percent of this standard in 1989, and 41.7 percent of this standard in 1990, which is also identical to the effectiveness standards provided by looking at the Tampa PMA as a standard alone. Similar patterns emerge when Mitsubishi's penetration in Brandon is compared with the Florida represented markets for Mitsubishi and for the United States represented markets. In comparison to Florida, Mitsubishi was only 60.5 percent effective in 1989 and 50.2 percent effective in 1990. Compared to the represented markets in the United States, Brandon was 84.6 percent effective in 1989 and 57.4 percent effective in 1990. In summary, whether the standard is the local area, the State of Florida, or the national average, Mitsubishi is not receiving adequate representation in the Brandon PMA, which means that the existing dealers are not providing adequate inter-brand competition. Moreover, Courtesy offered no evidence of any alternative standard against which to measure the performance of the Mitsubishi dealer network. Likely Cause of the Inadequacy of Representation Factor 10 Whether the establishment or relocation of the proposed dealership appears to be warranted and justified based on economic and marketing conditions pertinent to dealers competing in the community or territory, including anticipated future changes. After determining that an inadequacy of representation exists, it is helpful to determine a likely cause. In determining a likely cause, the economic and marketing conditions in the area are reviewed. These economic and marketing conditions also provide data with which to consider Factor 10, which deals with whether the establishment of the dealership is justified in terms of economic and other conditions. With respect to inter-brand competition, market share is a primary measure of inter-brand competition. Given Mitsubishi's very poor market penetration in Brandon, after adjusting for consumer characteristics, the inter- brand competition for Mitsubishi in Brandon is inadequate and is worsening. There is a significant population density in the Brandon PMA and the eastern portion of Hillsborough County, although it is not as dense as the population in the Tampa PMA. Both the Tampa and Brandon areas of Hillsborough County have experienced significant growth from 1980 to 1990. The location of the proposed dealership for Mitsubishi in Brandon, has experienced a significant growth from 1980 to 1991. The area north of the existing Wooley dealership has also experienced a significant amount of growth, indicting increased opportunity for that dealership within its own PMA, including increased opportunity for growth not only of vehicles but also market opportunity. These trends are also reflected in driving age, population and household increases from 1980 through 1991. In terms of future growth, Hillsborough County is projected to continue its substantial growth, both in terms of population, population 16 and over, and household trends, through 1996. These trends of increased growth in population and households are consistent for the Brandon open point. Even if there were to be growth and new car purchasers from these households, there would certainly be an implication for increased congestion and increased utilization of roads leading to greater travel time to get between dealerships, which would result in putting greater weight in the consumer's mind on convenience. Increased growth results in increased road congestion which, totally independent of the growth and new car automobile registrations, results in a growth and opportunity for Brandon. Demographic factors indicate Brandon is conducive to selling new motor vehicles. It contains a reasonable mix of upper and middle income areas and has no low income areas. The average or median new car buyer, and Mitsubishi buyer, will fall into the range around $45,000 of household income with most new vehicle purchasers of any brand having household incomes greater than $15,000. In addition to the increased growth in the area, the evidence indicated that economic conditions of potential car buyers are such that they are certainly going to be in the new car market in the years to come. This, in addition to providing additional opportunity for dealers in Brandon, also would lead to additional congestion which would place increased emphasis on customer convenience of new car dealerships. Average annual employment in Hillsborough has increased by approximately 160,000 jobs between 1980 and 1990, indicating a generally healthy economy, and confirming the overwhelming growth in the area. In terms of new car purchase opportunities, employed persons are those who will generally purchase a car. Therefore, increased employed population change, over time, is a good indicator of market opportunity. Factor 6 4/ Distance, travel time, traffic patterns, and accessibility between the existing dealer or dealers of the same line-make and the location of the proposed additional or relocated dealer. Factor 9 Whether there is adequate inter-brand and intra-brand competition with respect to said line-make in the community or territory and adequately convenient consumer care for the motor vehicles of the line-make, including the adequacy of sales and service facilities. In comparison to the nation as a whole, the Brandon PMA, between 1980 and 1991, had an annual compound growth rate in population, driving age population, households, and employment substantially greater than the State of Florida and the nation as a whole. This growth rate confirms additional opportunity and also confirms increased congestion in the transportation network. Growing marketing opportunities have let other brands of automobiles and trucks, who decide to locate in the Brandon area, offer greater levels of convenience. This confirms that the reason or explanation for the low penetration for Mitsubishi in Brandon is the lack of customer convenience derived from congestion, and the increased number of dealers from other brands. Mitsubishi's chances of achieving a reasonable and adequate level of representation are tied directly to how well the size of its dealer network keeps pace with expanding sales opportunities. Mitsubishi averages 83.3 percent effectiveness in markets between 0 and 15,000 industry registrations per Mitsubishi dealer. In Florida markets exceeding 15,000 industry registrations per dealer, only 37.5 percent achieve expected penetration. (MX 4, Pg. 43). If there continues to be only one Mitsubishi dealer in all of Hillsborough County, the opportunity in Hillsborough County would be larger, on a per-dealer basis, than any other area in Florida in any of the markets for which Mitsubishi maintains data. In fact, the Tampa market is almost twice as large as the average and at least 50 percent larger than the second largest market. (MX 4, Pg. 42). Accordingly, it is clear that an absence of adequate intra-brand competition is a cause for the inadequacy of representation of Mitsubishi in the Brandon PMA and in the Hillsborough County as a whole. In order to even approach reaching the critical size of 15,000 industry registrations per dealer, 2.2 dealers are needed in the Hillsborough Comm/Terr. (MX 4, Pg. 44). With only one dealer in operation at present, the need for one additional dealer to achieve adequate inter-brand and intra-brand competition is demonstrated. Accordingly, there is ample opportunity for two dealers to share the Hillsborough market, because even with two dealers in the Hillsborough community or territory, the opportunity for each on average falls in about the middle of the distribution of opportunity per dealer in the state of Florida major markets. The overwhelming size of the market, which is attempted to be served by one dealer, confirms that the likely cause of the low penetration in Brandon is simply that the market has grown too large for a single dealer to adequately serve, especially given the growth conditions in Hillsborough County and the existence of other brand dealerships who have chosen to locate in Brandon. The effect of distance and proximity upon Courtesy's ability to adequately represent Mitsubishi is demonstrated by Mitsubishi's diminishing market share as the distance from Courtesy's location increases. In an absolute sense, the number of Mitsubishi registrations decrease precipitiously as the distance from Courtesy increases. (MX 4, Pg. 45). From a market share perspective, comparing Mitsubishi registrations to the total industry, Courtesy alone (without consideration of the efforts of all other dealers) is able to achieve 2.5 percent of total car and compact truck retail industry registrations within 2 miles of its dealership. (MX 4, Pg. 46) Between 2 and 4 miles of Courtesy, Courtesy is similarly able to penetrate the total market at the rate of 2.1 percent. However, Courtesy's market penetration thereafter drops dramatically. At the 10-12 mile ring, which is where the proposed dealership is to be located, Courtesy achieves only 1.3 percent of the market. Courtesy is not able to provide adequate inter-brand competition in the Brandon PMA. Based upon the cross-sell data, there is essentially no intra- brand competition going on in the Brandon PMA, and very little such competition in the Hillsborough Comm/Terr as a whole. This inadequacy of inter-brand competition also suggests that there is not adequately convenient customer care because customers are opting for the brands which are represented in Brandon, as opposed to Mitsubishi which is not represented in Brandon. Courtesy is simply too far from the proposed location to overcome the convenience disadvantage with respect to consumers there. The inadequacy of convenient customer care for Mitsubishi, in comparison to its competitors, is demonstrated by the average distance which consumers must travel to reach the closest dealership of various lines. Without a dealer in PMA 4, consumers there are, on average, 15.77 miles from the nearest Mitsubishi dealer, or more than three times as far as are consumers in PMA 1 (5.66 miles). (MX, Pg. 48; T 107). With the proposed dealer in PMA 4, convenience is improved to 8.51 miles on average, which is still not as good as that provided in PMA 1. The convenience offered to customers in PMA 1 remains the same, whether or not a dealer is added to PMA 4. Without the proposed dealer, Mitsubishi offers consumers who reside in PMA 4 the worst convenience of 31 line-makes. (MX 4, Pg. 47). With a dealer in PMA 4, Mitsubishi would offer convenience levels in the mainstream of the competition. The likely cause of low penetration in PMA 4 is the rapid growth in that area, coupled with the rapid establishment of additional inter-brand competition, offering superior levels of convenience with respect to the new market opportunities which cannot be overcome by the existing dealers at their current locations. Since the problem is with network design, i.e. that there are too few dealers, the only solution is to add representation to add comparable and reasonable levels of convenience. Previous experience confirms that improved convenience in a market can result in increased efficiency. Optimal location analysis demonstrates that the proposed Brandon location would maximize customer convenience in the Hillsborough Comm/Terr. Factor 4 Any actions by the licensees in denying its existing dealer or dealers of the same line-make the opportunity for reasonable growth, market expansion, or relocation, including the availability of line-make vehicles in keeping with the reasonable expectations of the licensee in providing an adequate number of dealers in the community or territory. Courtesy did not offer any evidence that it had sought to relocate to the Brandon area or otherwise offer representation there. Courtesy's expert opined that, to the extent there was any lack of adequacy of representation, it could be cured by allowing Courtesy to open a satellite operation in the Brandon area. However, there was no evidence that Courtesy had suggested to MMSA that any such operation be established. Impact of the Establishment of the Proposed Dealer Factor 1 The impact of the establishment of the proposed or relocated dealer on the consumers, public interest, existing dealers, and the licensee; provided, however, that financial impact may only be considered with respect to the protesting dealer or dealers. The statute only permits financial impact to be considered in connection with the protesting dealer which, in this case is Courtesy. Market penetration and other data, however, includes the efforts of all Mitsubishi dealers in the U.S. as reflected in the Hillsborough Comm/Terr. Courtesy is a financially strong dealership, having made a profit of $276,981 for the first seven months of 1991. On an annualized basis, Courtesy is projected to show a profit of $474,636. For the entire year 1990, Courtesy was not profitable. However, lack of profitability was due to the first 9 months which were not profitable, whereas the last three months (just like every month of 1991) were profitable. (MX 7, Wooley Depo., Ex. 4). The major change which occurred at Courtesy during 1990 was the return of Jeffrey Wooley to the management of the day to day operation of the dealership. Prior to April, 1990, Mr. Wooley had, in his words "my eye off the ball." (MX 7, Wooley Depo. Pg. 48). He thereafter returned to the dealership and it almost immediately returned to profitability. Courtesy presented no evidence concerning the financial impact which the addition of a dealership would have upon its profitability, and further presented no evidence concerning the number of sales that it would lose if the proposed dealership were established in Brandon. Mitsubishi presented evidence which demonstrated that, because of the large untapped opportunity for Mitsubishi in the Tampa Comm/Terr, and especially in the Brandon PMA, the addition of a dealership will not cause a decrease in Courtesy's sales, and indeed will have a positive impact upon Courtesy's sales opportunities. The impact on Mitsubishi of not having a dealer in Brandon, and the potential impact of establishing a dealer there is substantial. The gross registration loss in the Hillsborough Comm/Terr, as measured in those census tracts which did not reach the reasonably expected market penetration, was 291 units for 1990. In addition to this opportunity being available to the proposed and existing dealers, there were 139 units of insell, or Mitsubishi units sold by dealers outside Hillsborough County to local customers. These units also represent lost opportunity to Courtesy, which would be available to Courtesy and Brandon Mitsubishi. (MX 4, Pg. 53). If the proposed Brandon Mitsubishi dealer performs in a similar manner to Courtesy, in terms of penetration rates at the various distances from the proposed dealership, the new dealership could be expected to sell 294 units or only 68.37 percent of the lost opportunity available to Mitsubishi dealers in the market. (MX 4, Pg. 53). Further, the addition of a dealership in the market will increase consumer interest in the product and result in increased total Mitsubishi registrations in the market. The increased total registrations will have a positive impact both on MMSA and Courtesy. Further, the additional competition for Courtesy will have a beneficial impact upon the consumers. They will have a more easily accessible Mitsubishi dealership in Brandon at which to shop. Further, this additional dealership will have a positive effect upon Courtesy, in that it will offer additional competition and cause Courtesy to be more aggressive in serving the consumers of the market. The establishment of the Brandon dealership will likely benefit consumers and the public interest. It will provide the growing number of PMA 4 residents with a more convenient place to shop for new Mitsubishi vehicles and more convenient Mitsubishi locations. It will also provide customers with an increased new car and truck inventory to choose from, and expanded opportunities to compare value and service offered by Mitsubishi and all other brand dealers. Prior experience with the addition of a Mitsubishi dealer in a metropolitan area confirms the benefits to all parties which will result. Further, this experience also confirms that the market penetration selected here is a minimum standard, and not a ceiling limiting the potential market penetration. For example, when Stadium Mitsubishi was added to the Dallas, Texas, market in 1989, Mitsubishi's market penetration in the Stadium PMA went from 58 percent of the standard, prior to the opening of the dealership, to 241 percent of the standard after the opening of the dealership. (MX 4, Pgs. 55-6). Similarly, the addition of a dealership in a market with inadequate representation has a positive impact upon the entire market, not only upon the PMA where the dealership is added. (MX 4, Pg. 57). In Dallas, for example, prior to the addition of two dealerships, the market as a whole was 88 percent of the standard, whereas after the dealership was added, the market penetration for Mitsubishi more than doubled to 192.5 percent of the standard. (MX 4, Pg. 57). In terms of the impact upon existing Mitsubishi dealers, the overall market for Mitsubishi products expanded, rather than additional dealers competing for a "fixed pie" of Mitsubishi registrations. The other dealers in Dallas saw their sales increase from 1600 to 4400 over the same periods that Stadium Mitsubishi was added, and their sales went from zero to 600. (MX 4, Pg. 57-8, T 143-4). This experience in Dallas confirms the conclusion that, in a case where a large part of a market has inadequate representation, the projected sales for the new dealer will come from lost opportunity, not from the existing dealers, as long as the existing dealers choose to compete for the available lost opportunity. Factor 2 The size and permanency of investment reasonably made and reasonable obligations incurred by the existing dealer or dealers to perform their obligations under the dealer agreement. The net worth of the dealership, as of July 1991, was $675.033. The real estate utilized by the dealership, however, is not owned by the dealership, but is owned by Jeffrey Wooley and rented to the dealership. No evidence was presented that the existing Courtesy facility is inadequate. However, the market penetration deficiencies suffered by Mitsubishi in the Brandon PMA demonstrate that the facilities are not appropriately located to serve the Brandon PMA. Further, with respect to the investment which Courtesy could reasonably have made in its current facility, it is important to note that Courtesy was informed by MMSA, at the beginning of its dealership in 1982, that there would be another dealership in the area. (Wooley Depo. Ex 6.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A Final Order be issued approving the application of Brandon Mitsubishi to establish a new Mitsubishi dealership at 9909 Adamo Drive, Hillsborough County, Florida. DONE and ENTERED this 18th day of December, 1991, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by James H. Peterson, III, 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 correspondence filed by Respondent, withdrawing its petition. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Swanders, Inc. d/b/a Swanders Auto Mart be granted a license for the sale of motorcycles manufactured by Qianjiang Motorcycles Group Corporation (QINJ) at 5546 North Lecanto Highway, Beverly Hills (Citrus County), Florida 34465 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed February 26, 2010 8:00 AM Division of Administrative Hearings. DONE AND ORDERED this 2'/'iofFebruary, 2010, in Tallahassee, Leon County, Florida. or 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 11.5-1- day of February, 2010. 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: Derick David Affordable ATV's, Inc. d/b/a Axis Powersports 3131 East Gulf to Lake Highway Inverness, Florida 34453 Bobbette Lynott Classic Motorcycles and Sidecars, Inc. Post Office Box 969 Preston, Washington 98050 Carl Swanders Swanders, Inc. d/b/a Swanders Auto Mart 5546 North Lecanto Highway Beverly Hills, Florida 34465 James H. Peterson, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
