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 non-compliance to the requirements set out in the Order to Show Cause—for both parties to file responses no later than July 26, 2009 as to why this matter should not be closed based on lack of response to the Order of Pre-Hearing Instructions. 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 Galaxy Powersports, LLC d/b/a JCL International, LLC and Kitai Powersports, Inc. to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 228 North 3™ Street, Jacksonville, (Duval County), Florida 32250. DONE AND ORDERED this bu of August, 2009, in Tallahassee, Leon County, Florida. Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of August, 2009. i Vinayak, Dealer nat. 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. CAF/vig Copies furnished: Leo Su . Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Jim Lee Road Power USA, LLC 927 North 3 Street Jacksonville Beach, Florida 32250 Claudio Biltoc Kitai Powersports, Inc. 143 Belmont Drive St. Johns, Florida 32259 Pete Biltoc Kitai Powersports, Inc. 13887 Sea Prairie Street Jacksonville, Florida 32216 Rustin Murray Kitai Powersports, Inc. 400 North Pimlico Street St. Augustine, Florida 32090 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
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
Findings Of Fact Since 1976, DHRS has leased two Xerox 9200 copy machines for its Tallahassee headquarters. The two units together rent for a total of $9,945.11 per year. On September 27, 1984, Mr. Charles A. Stryker, account manager for Xerox in Tallahassee, by letter to the director of central general services for DHRS in Tallahassee, proposed several alternative plans for DHRS to obtain the equipment necessary to handle its central reproduction duplicating needs. Among the proposals submitted by Mr. Stryker was a purchase of the present Xerox 9200 units currently being leased from Xerox. This proposal pointed out that the machines in question had reached the maximum equity per machine that they could earn on a rental basis and that among other things, Xerox would be willing, if DHRS were to buy them, to provide nine months free maintenance on the units and a guaranteed 50 percent trade-in value if the units were to be traded in on new units from Xerox within 12 months from date of purchase. DHRS officials, recognizing the fact that maximum equity on the machines had been realized and foreseeing the opportunity to obtain the machines at a substantial dollar saving to the State, by letter dated October 10, 1984, contacted the appropriate officials at the Department of General Services (DGS), requesting authority to procure these particular used units from Xerox on a sole source procurement. On November 1, 1984, DGS responded denying sole source procurement authority, but granting authority to purchase two suitable duplicating systems through the competitive bid process. It was the opinion of DGS that the equipment was available and the fact that the total cost of the acquisition exceeded the upper limit of $2,500.00, the competitive bid process was necessary. Thereafter, a purchase requisition was submitted on November 2, 1984, by Mr. Vick which was approved. On November 7, 1984, Mr. Vick forwarded a memorandum to Mr. Cox which stated: "Please determine how we are going to purchase the (2) Xerox 9200's. Their offer ends December 15, 1984." An Invitation to Bid on Bid No. 85-41 BC for two used high speed, high volume xerographic duplicating systems was mailed to Xerox and Kodak on November 19, 1984. The Invitation to Bid form reflected the bids would be opened on December 7, 1984, at 2 p.m. The Invitation to Bid forms were sent to Xerox and Kodak only because they were the two companies in the area which manufactured and supplied equipment which would meet the specifications required by DHRS. Both Xerox and Kodak submitted their bids on December 6, 1984. Xerox's bid price was $29,764.00 per machine for a total price of $59,528.00 for the used machines that were currently in use at DHRS headquarters. As a part of its bid, Xerox offered a rebate voucher in the amount of $5,990.75 to cover the purchase of 4 620 Memorywriter typewriters and 7 printwheels. This rebate was part of a National promotion to all government customers. Kodak's bid was for $134,280.00 per machine for a total price of $268,560.00 for new Kodak model 250AF machines. Mr. Goodrich admits that Kodak does not manufacture a xerographic which meets the technical qualifications contained on page 5 of the Invitation to Bid. In addition to this, he points to the specifications listed in the special conditions and technical specifications section of the IFB contained on pages 3 and 4, specifically number 3 which calls for full maintenance for a period of 9 months following installation at no expense to the department and a guaranteed 50 percent trade-in allowance within 12 months of purchase. Kodak contends that since as Kodak has its own price specials which it could have offered if the terms of the IFB were not so narrowly defined, and it was thereby precluded from competitively bidding on this contract, the inclusion of those terms mentioned above effectively negated the competitive bidding process. Admittedly, Kodak did not submit a proposal to DHRS at the time Xerox did prior to the issuance of the IFB. It is for this same reason that Kodak's bid referred to new equipment rather than the used equipment called for under the IFB because at the time, Kodak did not have any used equipment which would meet the terms and conditions of the invitation to bid. Mr. Goodrich admits also that Kodak did not compete for the original contract to provide xerographic equipment in 1976 because it, was not in operation in the Tallahassee area at that time and could not have bid competitively. However, they have equipment which can do substantially what the Xerox 9200, in use since 1976, can do and more, and this was the item they offered in their response to the IFB. The IFB in this procurement was developed by Mr. Cox who built the solicitation utilizing the general conditions dictated by DGS for all procurements, the technical specifications developed by DHRS' technical services division, and the special conditions which he developed to satisfy the needs of the department in this procurement. Specifications calling for used equipment was utilized because it was felt that a purchase of the used, in place xerox equipment would permit a substantial monetary savings while still getting equipment which had been proven satisfactory to do the job. Nonetheless, if new equipment from either Xerox or Kodak would have done the job required and still saved money, that would have been the route taken. This was not the case, however. According to Mr. Vick, the request to go sole source on this procurement was prompted by a desire to take advantage of the Xerox proposal of late September 1984 which, it was felt, would result in a substantial dollar savings for the State while still providing equipment which was satisfactory for the task required. DHRS maintains an open door policy toward vendors to encourage them to come in and attempt to sell their product. Mr. Cox has dealt with Kodak on several occasions in the past but never in the area of copying equipment. At the time in question, there was nothing at all to preclude Kodak from coming in with their own offers. DHRS officials do not deny that they wanted to accept Xerox's proposal. Offers by several other vendors had been turned down in the past, but this one looked so good and appeared to have the promise of substantial dollar savings to the State, that a request was made to DGS to go single source procurement so that this proposal could be accepted. However, once this request was turned down, an Invitation for Bids was sent out to competing vendors and while the terms paralleled those offered by Xerox and it was obvious that Xerox's bid would comply with them, there was nothing in the procedure on DHRS' part that would preclude Kodak from offering the same terms. The officials at DHRS had no way of knowing that Kodak's internal policies would not permit the meeting of the same terms as to free maintenance and trade in allowance. If Kodak had been willing to meet those terms, it could thereafter have battled Xerox head to head on the one issue where they could compete - price. DHRS also admits that generally, it is reluctant to make outright purchases of technical equipment, preferring to lease as was done here for several years, because of the changing state of the art. It is for that reason that the invitation to bid specified used equipment here to keep costs down and to allow upgrading in the reasonably near future. To go even further, Mr. Cox admitted that while the bid was open to others, it was aimed at getting the Xerox proposal which would save a total of $76,000.00 on this purchase and trade-in. Considering the evidence in its totality, it is clear that the officials at DHRS were attempting to save state funds in this procurement. Their method of handling this procurement lacks finesse, perhaps, but cannot be said to be ill-motivated, arbitrary, capricious, or unreasonable.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s withdrawal of his objection to the establishment of a new dealership, filed April 5, 2011. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Scott Koster d/b/a Sunrise Scooters, Inc., be granted a license for the sale of motorcycles manufactured by Taizhou Chuan! Motorcycle Manufacturing Co. Ltd. (CHUA) at 1923 South Federal Highway, Fort Lauderdale (Broward County), Florida 33316, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 19, 2011 12:28 PM Division of Administrative Hearings DONE AND ORDERED this Sh day of April, 2011, in Tallahassee, Leon County, Sandra C. Lambert, Seon Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motor Vehicles this_+Y day of April, 2011. alias Virogsl ‘Ramninistrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Noel Farbman USA Wholesale Scooters, Inc. 4316 North Dixie Highway Oakland Park, Florida 33334 * eel \ “FotattainimbA eango 1elsa ,AByeniV ini Scott Koster Sunrise Scooters, Inc. 300 Southwest 7 Street Fort Lauderdale, Florida 33316 Gloria Ma EI Sol Trading, Inc. 19877 Quiroz Court City of Industry, California 91789 Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McK.ibben, 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. Accordingly, it is hereby ORDERED that the Dealer Agreement between Qlink, LP and Mega Power Sports, Corporation is terminated. DONE AND ORDERED this z/.ayofOctober, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed October 15, 2009 3:41 PM Division of Administrative Hearings. Filed with the Clerk of the Division of Motor Vehicles this day of October, 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: Mark L. Ornstein, Esquire Killgore, Pearlman, Stamp, Ornstein & Squires, P.A. Post Office Box 1913 Orlando, Florida 32802 David Levison Mega Power Sports, Corp. 921 West International Speedway Boulevard Daytona Beach, Florida 32114 R. Bruce McKibben 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
The Issue Whether the application of Peace Industry Group (Peace) and Bayside Auto Sales, Inc. (Bayside) to establish an additional franchised dealership for the sale of Astronautical Bashan motorcycles to be located at Bayside Auto Sales, 1301 Harrison Avenue, Panama City, Bay County, Florida, should be granted.
Findings Of Fact Petitioner Peace is a licensed distributor of motor vehicles in Florida and is authorized to sell motor vehicles to its dealers in Florida. Petitioner Bayside is a licensed motor vehicle dealer in Florida and is located at 1301 Harrison Avenue, Panama City, Florida. Respondent Moto is a licensed motor vehicle dealer in Florida and an existing Astronautical Bashan dealer located at 12202 Hutchison Blvd Suite 72, Panama City Beach, Florida. Currently, Moto sells the product line of Peace, including the Astronautical Bashan product line. Additionally, Moto has a franchise agreement with Peace. The agreement establishes a franchise territory with a 25-mile radius around Moto’s location. Petitioner Peace proposes to establish Bayside as a dealership for the sale of Astronautical Bashan motorcycles. The proposed dealership would be within six miles of Moto’s dealership. The two dealerships are located in Bay County and are separated by the Hathaway Bridge. Both draw customers from Bay County, with at least 20 percent of Moto’s customers located within 20 miles of Moto’s location. There was no consumer data or analysis of sales in the motorcycle industry offered into evidence. However, Moto’s franchise agreement with Peace establishes a market area of at least a 25-mile radius from Moto’s location. Bayside clearly is located within Moto’s market area. There was no evidence which demonstrated Peace’s market share in the motorcycle market. There was no evidence presented analyzing the motorcycle market in the Panama City area. Likewise, there was no evidence presented regarding anticipated growth in the market area. This type of evidence is generally presented by the distributor or manufacturer of the product. As indicated, Peace did not appear at the hearing. Given this lack of evidence, the market share for Peace or Astronautical Bashan motorcycles cannot be established. Moreover, a determination that the establishment of a second dealership in the Panama City territory is warranted must be based on the economic and marketing conditions pertinent to dealers competing in the territory. Given this lack of evidence, Petitioners failed to establish that Peace was underrepresented in the Panama City/Bay county area. Since there is no evidence to support the establishment of a second dealership, Petitioners’ application to establish such a dealership should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the establishment of Peace's dealership at Bayside, 1301 Harrison Avenue, Panama City, Florida. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Larry Bradberry Bayside Auto Sales, Inc. 1301 Harrison Avenue Panama City, Florida 32401 Wayne Wooten Moto Import Distributors, LLC 12202 Hutchison Boulevard, Suite 72 Panama City Beach, Florida 32407 Lily Ji Peace Industry Group, Inc. 6600-B Jimmy Carter Boulevard Norcross, Georgia 30071 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety And Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety And Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, 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 Relinquishing Jurisdiction and 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 and ADJUDGED that Petitioner, Jealse Scooters, Inc., be granted a license for the sale of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 572 East Osceola Parkway, Kissimmee, (Osceola County), Florida 34744, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed January 7, 2010 10:39 AM Division of Administrative Hearings. DONE AND ORDERED this ;(/day of January, 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 Divis)On of Motor Vehicles this Jtf!1._ day of January, 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: Fabio Jealse Jealse Scooters, Inc. 572 East Osceola Parkway Kissimmee, Florida 34774 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Jeff Lampe Kissimmee Motorsports, Inc. 2881 North John Young Parkway Kissimmee, Florida 34741 William F. Quattlebaum 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
