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.
The Issue Whether the application of petitioner, STEVE SORENSEN CHEVROLET, INC. d/b/a STEVE SORENSEN CHRYSLER, PLYMOUTH, AND DODGE ("Applicant") for a new motor vehicle dealer license under Section 320.642, Florida Statutes, should be granted on the ground that existing Chrysler dealers, including respondent TOM EDWARDS, INC. ("Existing Dealer"), are not providing adequate representation of the manufacturer, Chrysler Corporation ("Chrysler") in the Lake Wales sales locality. Background Applicant STEVE SORENSEN CHEVROLET, INC. d/b/a STEVE SORENSEN CHRYSLER, PLYMOUTH AND DODGE, filed with the State of Florida, Department of Highway Safety, and Motor Vehicles, ("Department") an application for the issuance of a motor vehicle dealer's license under Section 320.642, Florida Statutes, to operate a Chrysler dealership in Lake Wales, Florida. TOM EDWARDS, INC., the existing dealer in Bartow, Florida--14 miles from Lake Wales--objected to the issuance of a license. The Department forwarded this matter to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57(1) hearing. Hearing was set for December 2, 1983. On November 9, 1983, the Existing Dealer moved for a continuance. The motion, opposed by the Applicant and Chrysler, was denied. At final hearing the Applicant and Chrysler presented the testimony of V. Hanwell, Richard Snyder, Steve Sorensen, Wayne Finley, and Vance Gordon. Petitioners' Exhibit Nos. 1 through 14 were received into evidence. The Existing Dealer presented the testimony of Tom Edwards. The transcript of hearing was filed on January 6, 1984, and the parties submitted proposed findings of fact and conclusions of law by February 16, 1984. Based on the evidence presented, the following facts are determined:
Findings Of Fact I. The Parties The Applicant seeks a license to operate a Chrysler, Plymouth, Dodge and Dodge Truck dealership two miles north of Lake Wales on U.S. Highway 27, Polk County, Florida. This would be a "dual" dealership, since the Applicant currently operates a Chevrolet dealership at that location--and has since 1979. 1/ It acquired the Lake Wales Chevrolet dealership in 1975 and operated his dealership at a location on Highway 60, east of Lake Wales, prior to moving to its current location. The Applicant is a successful Chevrolet dealer operating a 22,000 square foot facility located on approximately three acres, with an additional two acres available for future expansion. This is a complete sales and service facility, including 15 mechanical service stalls, 6 body shop stalls, and a large parts department. It exceeds Chevrolet's guidelines for space requirements. Chrysler is the licensed distributor of Chrysler, Plymouth, and Dodge cars, and Dodge truck vehicles. It supports the licensing of the Applicant's proposed dealership in Lake Wales on the ground that there are no dealers presently located in Lake Wales and dealers outside this locality are not adequately representing Chrysler in that sales locality. Since 1973, the Existing Dealer has continuously operated a licensed Chrysler dealership selling Chrysler and Dodge cars, and Dodge trucks, in Bartow, Florida. It opposes granting the requested license, contending it adequately represents Chrysler in the Lake Wales area and that the location of the proposed dealership in Lake Wales would adversely affect its business. II The Applicant's Qualifications to Operate a Chrysler Dealership The parties agree that the Applicant is financially qualified to operate a Chrysler dealership in Lake Wales. By its past performance, it has proved that it has the necessary talent and resources to capably operate a motor vehicle dealership. In anticipation of receiving a Chrysler dealership, the Applicant has hired additional personnel in its parts department, including an additional clerk, and a full-time sales manager. It also purchased a $40,000 Reynolds Vim- Net computer. These additional resources will also serve the existing Chevrolet dealership. Registration data reflects there are approximately 2,000 owners of Chrysler Corporation vehicles in the Lake Wales sales locality which could be served by a new Chrysler dealership. Market Area involved The Applicant's proposed dealership facility is in a trade area which Chrysler designates as the "Lake Wales sales locality," consisting of Lake Wales, Babson Park, Frostproof, and Waverly. Chrysler identified the Bartow sales locality, which is being served by the Existing Dealer, as consisting of the towns of Bartow, Alturas, Bradley, Fort Meade, Homeland, Mulberry, Nichols, and Pembroke. All of these communities are located in Polk County, Florida. Prior to May of 1980, when Scenic Chrysler-Plymouth business, a Chrysler dealer had been located in the Lake Wales sales locality. Since 1980, Chrysler has actively sought applicants to open a Chrysler dealership in Lake Wales. There are currently three Chrysler dealerships in Polk County: one in Lakeland, one in Winter Haven, and one in Bartow. These dealerships are reasonably available to residents of Lake Wales, both for sales and service. Lakeland is 20-25 miles (30 45 minutes' driving time) from Lake Wales; Winter Haven is 10-11 miles (15-20 minutes' driving time); and Bartow is 14 miles (20 25 minutes' driving time). Polk County has a population of approximately 330,000. In September of 1983, Ford Motor Company had nine dealerships in Polk County and General Motors, fifteen. Although Chrysler had fewer dealerships, the significance of this disparity has not been shown since Ford and General Motors have consistently sold more vehicles and represent greater shares of the market. A comparison of the number of Chrysler dealerships with population served in other parts of Florida indicates that Polk County as a whole, does not have a disproportionately small number of Chrysler dealerships. In Hillsborough County, four Chrysler dealerships serve a population of 670,000. In Pinellas County, five Chrysler dealerships serve a population of 700,000. If the proposed dealership is licensed, Polk County would have the same number of Chrysler dealerships as Hillsborough County, which as more than twice the population. Lake Wales currently has, within its boundaries, Chevrolet, Ford, Buick-Oldsmobile, and Pontiac-Cadillac dealership. It does not have any imported car dealerships or Chrysler, Lincoln-Mercury or American Motors dealerships. IV. Adequacy of Existing Dealer's Representation of Chrysler in Lake Wales Chrysler measures the adequacy of its sales performance or representation in various sales localities by comparing its corporate penetration of total industry sales (by percentage) corporate, within a zone, 2/ to its corporate penetration of industry sales within a given sales locality, such as Lake Wales. This is the "benchmark for comparing how well we're doing in the various sales localities . . . ." (TR.-74) The Applicant and Chrysler rely on a comparison using new vehicle registration figures compiled by the R. L. Polk Market Action Report. For the years 1980-1983 Petitioners' Exhibit No. 9 shows the following comparison between Chrysler's Zone and Lake Wales' market penetration: Car Industry 1980 1981 *** 1982 1983* Zone Corporate Car Penetration 7.1 7.5 8.9 10.5 Lake Wales Sales Locality** 8.3 5.1 6.7 8.7 Truck Industry Zone Corporate Care 11.6 8.1 8.8 8.5 Lake Wales Sales Locality 8.3 2.9 6.3 4.0 *8 months-annualized. **Includes, Lake Wales, Babson Park, Frostproof, and Waverly. ***1981 was an unusually bad year for Chrysler because of weakness of the national economy and fears that Chrysler would go bankrupt. For car sales, this comparison shows that in 1980, Chrysler had better market penetration (as a percentage of total industry sales) in Lake Wales than in the Orlando Zone; but in 1981 through 1983, its zone penetration exceeded its Lake Wales penetration. These figures also show continuous penetration gains in both, areas since 1981, but the annual rate of increase in Lake Wales has been greater than in the zone. For truck sales, a similar relationship is found except for 1983, when both Lake Wales and Zone penetrations declined. In conjunction with this comparison, the Applicant and Chrysler rely on R. L. Polk Market Action Report vehicle registration figures showing that the Existing Dealer sold the following number of vehicles to persons residing in the Lake Wales Sales locality: 1980 1981 1982 8 mo. 1983 Lake Wales Sales by 14 10 6 10 Existing dealer (Petitioner's Exhibit No. 7) The R. L. Polk Market Action Report figures for Lake Wales, used in both of these comparisons, have been shown to be inaccurate and unreliable. These figures, and the conclusions based on their use, are rejected as suspect and unworthy of belief. The R. L. Polk figures show that in 1982, the Existing Dealer sold 6 Chrysler vehicles to persons in Lake Wales. In fact, he sold 8--a statistical error of over 33 percent. The Polk figures show that in 1983 (8 months) the Existing Dealer sold 10 units in Lake Wales, when, in fact, he sold 13--a 30 percent error. Finally, the Polk figures show that the Existing Dealer sold 82 vehicles residents of Polk County during the first 8 months of 1983; in fact, it sold 102. The Existing Dealer (in Bartow) has actively cultivated the Lake Wales area since mid-1980, when the Lake Chrysler dealership went out of business. It advertises newspapers, on radio, and in telephone directory yellow pages services Lake Wales. It is the only Chrysler dealership in Polk County which advertises in the Lake Wales telephone directory. The Existing Dealer's sales efforts in the Lake Wales area have recently begun to bear fruit. In 1982, its first profitable year since 1977--it earned profits of $13,000. Without the 8 sales in Lake Wales, it would have remained "in the red" another year. The opening of the Applicant's proposed dealership would decrease the number of sales which the Existing Dealer could otherwise reasonably expect to make in the Lake Wales area. During the first 9 months of 1983, the Existing Dealer's Lake Wales' sales accounted for gross profits of $28,000. The loss of sales of this magnitude to the Applicant would seriously impact the profitability--and continued viability--of the Existing Dealer. Chrysler has not previously expressed any serious dissatisfaction with the Existing Dealer's representation or sales performance. The only document used by Chrysler to openly "evaluate a dealer's annual performance is known as the "Sales Responsibility Review." For the year ending December, 1982, the Existing Dealer's Sales Responsibility Review showed it exceeding all of its fair market share requirements by over 100 percent. In Dodge cars, it exceeded sales requirements by over 200 percent; in Chrysler cars, by over 160 percent; and in Dodge trucks, by 104 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application by Steve Sorensen Chevrolet for a motor vehicle dealer's license be denied. DONE and ORDERED this 15th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 15th day of May, 1984.
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
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Ella Jane P. Davis, 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 Voluntary Dismissal with prejudice. Accordingly, it is hereby ORDERED that the Dealer Sales and Service Agreement between Kawasaki Motors Corporation, U.S.A. and Fun By Land and Sea, Inc. is terminated. DONE AND ORDERED this yA 4, of August, 2009, in Tallahassee, Leon afl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 County, Florida. Filed with the Clerk of the Division of Motor Vehicles this _Tthday of August, 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: Donald St. Denis, Esquire St. Denis & Davey 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 Dean Bunch, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32309 Administrator Ella Jane P. Davis 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-432-02 Tallahassee, Florida 32399-0504 ‘Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS KAWASAKI MOTORS CORPORATION, _) USA, ) Petitioners, vs. Case No.: 09-0720 FUN BY LAND AND SEA, INC.,, Respondents. | NOTICE OF VOLUNTARY DISMISSAL Respondents, FUN BY LAND & SEA, INC., by and through its undersigned counsel and pursuant to Rule 1.420(c) of the Florida Rules of Civil Procedure, hereby files this Notice of Voluntary Dismissal with prejudice of its Petition for Administrative Proceedings and determination of unfair termination under § 320.641(3), Florida Statutes, by Petitioner, KAWASAKI MOTORS CORPORATION, U.S.A., in the above titled action. Each party to this action shall bear their own attorney fees and costs. ST. DENIS & DAVEY, P.A. DONALD W. ST. DENIS, a Florida Bar Number 0794864 MICHAEL J. LUFKIN, ESQUIRE Florida Bar Number 0030492 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 (904) 396-1996 — Telephone (904) 396-1991 — Facsimile Attorneys for Respondents Filed July 24, 2009 4:46 PM Division of Administrative Hearings. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by facsimile and U.S. Mail this 24th day of July, 2009, to C. Everett Boyd, Jr., Esq., Atiorney for Petitioner, : Nelson Muilins Riley & Scarborough, LLP, 3600 Maclay Boulevard South, Suite 202, Tallahassee, FL 32312; and Dean Bunch, Esq., Attorney for Petitioner, Nelson Mullins Riley & Scarborough, LLP, 3600 Maclay Boulevard South, Suite 202, Tallahassee, FL 32312; and by U.S. Mail to Michael J. Alderman, Esq., Department of Highway Safety and Motor Vehicles, Nei] Kirkman Building, Room A-432, 2900 Apalachee Parkway, Tallahassee, FL 32344.
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 Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746. 4 DONE AND ORDERED this /2.’~ day of September, 2009, in Tallahassee, Leon County, Florida. LA. 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 of Motor Vehicles this [oth day of September, 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: 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
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
The Issue Whether El Sol Trading, Inc. (El Sol) should be permitted, over Respondent's protest, to establish an additional dealership for the sale of motorcycles manufactured by Jiangmen Qipai Motorcycle Co, Ltd. (QIPA Motorcycles) at 7000 Park Boulevard, Pinellas Park, Florida.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is an existing franchised dealer of QIPA Motorcycles. Its dealership is located at 6239 Park Boulevard, Pinellas Park, Florida. The driving distance between Respondent's dealership and the location of the new dealership El Sol proposes to establish at 7000 Park Boulevard, Pinellas Park, Florida, is roughly one mile.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles issue a Final Order denying El Sol approval to establish a new QIPA Motorcycle dealership at 7000 Park Boulevard, Pinellas Park, Florida. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010. COPIES FURNISHED: Julie L. Jones, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Steve Hume, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Gloria Ma El Sol Trading, Inc. d/b/a Motobravo, Inc. 19877 Quiroz Court City of Industry, California 91789 Lindsey Park Eco Green Machine, LLC 7000 Park Boulevard, Suite A Pinellas Park, Florida 33781 David Dubin Seminole Scooters, Inc. 6239 Park Boulevard Pinellas Park, Florida 33781
