Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal With Prejudice, 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. Filed October 1, 2010 4:40 PM Division of Administrative Hearings. DONE AND ORDERED this / & day of October, 2010, in Tallahassee, Leon County, Florida. Y , 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_/st day of October, 2010. loos y Nalini Vinayak, Dealer ‘Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Jason T. Allen, Esquire Bass, Sox & Mercer 2822 Remington Green Circle Tallahassee, Florida 32308 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue is whether the Department of Highway Safety and Motor Vehicles should approve the establishment of a proposed dealership by SunL Group, Inc., in Gulfport, Florida.
Findings Of Fact TRM is in the business of selling motor scooters in Gulfport, which is in Pinellas County. TRM is owned by Thomas R. Malin, III. TRM is currently an authorized dealer of scooters manufactured and/or imported by Carter Brothers and Tank Sports. Those scooters sell in the $2,000 to $3,000 price range. TRM is seeking through this proceeding to become an authorized dealer of scooters imported by SunL.1 Those scooters sell in the $1,450 to $1,995 price range. No evidence was presented at the hearing regarding the location or products sold by West Coast, and there is no evidence that West Coast sells SunL scooters. There are no dealers selling SunL scooters in the Pinellas County area, according to Mr. Malin. West Coast was provided due notice of the date, time, and location of the final hearing in this case. No representative of West Coast appeared at the final hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing West Coast’s protest and approving TRM’s proposed SunL dealership in Gulfport. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 12th day of March, 2007.
Findings Of Fact In November 1986, Sport Products received approval of its application with American Honda to establish a Honda motorcycle, all terrain vehicle (ATV), and motor scooter dealership in Fort Lauderdale, Florida. By application dated December 2, 1986, Sport Products applied to the Department for a motor vehicle dealer license to establish its dealership at 1030 West Sunrise Boulevard, Fort Lauderdale, Florida. The application of Sport Products was protested by Stanmar and Honda West, existing dealers in Broward County. Stanmar's dealership is located near the intersection of Copans and Powerline Roads, Pompano Beach, Florida. As sited, Stanmar is located approximately 9.5 miles due north of the proposed dealership. Honda West's dealership is located at the intersection of University Drive and Stirling Road, Davie, Florida. As sited, Honda West is located a straightline distance of approximately 9 miles southwest, but a substantially greater distance over any available route of travel, from the proposed dealership. 1/ Replacement Dealer Or New Dealer Point? The proposed site for the Sport Product dealership, 1030 West Sunrise Boulevard, Fort Lauderdale, Florida, is the same location previously occupied by another Honda dealer, Satnam Enterprises, Inc. (Satnam). Satnam conducted business at that location from 1979 until late December 1985, when it ceased doing business. Satnam's dealership agreements with American Honda were terminated on January 22, 1986. Upon termination of Satnam's dealership, American Honda immediately began its search for a replacement dealer in Fort Lauderdale. Typically, it takes from six months to one year to advertise open dealership points, evaluate applications, and select a replacement dealer. In this case, the replacement dealer, Sport Products, was located and approved within one year. If licensed, Sport Products would resurrect the third Honda motorcycle, all terrain vehicle (ATV) and motor scooter dealership in Broward County since the demise of Satnam. The issue of American Honda's right to establish a third Honda dealership in Broward County was previously addressed in the matter of Satnam Enterprises, Inc., d/b/a Honda of Fort Lauderdale, et al. v. S.G. Silverman, et al., DOAH Case No. 85- 0836. In that case, Satnam and Honda West protested Stan Silverman's (Stanmar's) proposal to establish a third dealership in Broward County at the intersection of Copans and Powerline Roads, Pompano Beach, Florida. The case proceeded to hearing on September 11 and 12, 1985, and the hearing officer entered his recommended order on November 13, 1985. The Department's final order, which adopted the recommended order in toto, was entered December 30, 1985, and found that Broward County was the relevant market area, community or territory to be considered and that American Honda was inadequately represented in that area by the two existing dealers. Subsequently, Stanmar received its dealer's license. 2/ As appears more fully from the findings of fact which address the adequacy of the existing two dealers representation of Honda in Broward County, infra, there have been no changes in circumstance that would warrant a departure from the final order rendered in Satnam Enterprises, Inc., d/b/a Honda of Fort Lauderdale, et al. v. S.G. Silverman, et al., supra. The need for three dealership points having been established in that case, it is concluded that the subject application is for a replacement dealership and not a new dealership point. Adequacy Of Existing Dealer Representation Broward County is the relevant market area, community or territory under consideration in this case. The proof establishes that American Honda is not being adequately represented in Broward County. This is evidenced by the following: As of November 1986, R.L. Polk & Co. reported that Honda's market share in the entire State of Florida was 51.06 percent, while Honda's market share in Broward County was 26.65 percent. Simply stated, this means that whereas throughout the State of Florida 51 of every 100 motorcycles and motorscooters sold was a Honda vehicle, only 27 of every 100 sold in Broward County was a Honda vehicle. 3/ By comparison, at the time of Case No. 85-0836, supra, which concluded that a third dealership in Broward County was needed, Honda's market share for Broward County was 48.07 percent, whereas its state- wide share was 55.73 percent. The R.L. Polk Reports demonstrate that Honda's market share in Broward County has been steadily erroding over the past five years. Currently, there are 52 Honda dealerships in the State of Florida. Since the population for the entire state was estimated in 1986 to be 11,668,638 people, there is currently one Honda dealer for every 224,397 people in the State of Florida. There are now only two Honda dealers in Broward County, which had an estimated population in 1986 of 1,203,210 people. This equates to a dealership per population ration of one dealership for every 603,605 people. With the re-establishment of the third dealership in Broward County, that ratio would be reduced to one dealership for every 401.070 people in Broward County, whereas the state ratio, calculated with the additional dealership, would then be one dealership for every 220,163 people. Clearly, the dealership per population ratio in Broward County far exceeds the state-wide ratio, and would continue to greatly exceed the state- wide ratio even if Sport Products is licensed. Since 1982, there have been an increasing number of Broward County residents who have gone outside Broward County to purchase their Honda vehicles. In contrast, a significantly lesser number of customers from outside Broward County have traveled into Broward County to purchase their vehicles. In 1984, one Honda vehicle was sold in the State of Florida for every 367 people within the state. In Broward County for 1984, that figure was one vehicle for every 503 people. In 1985, whereas one Honda vehicle was sold throughout the state for every 402 people, that figure in Broward County was one Honda vehicle for every 702 people. In 1986, whereas one Honda vehicle was sold throughout the state for every 516 people, that figure in Broward County had plummeted to one Honda vehicle sold for every 1,133 people. If the ratio of sales to population in Broward County had been the same as the state-wide ratio in 1986, 2,332 American Honda units would have been sold. In fact, the two existing Broward County dealers sold 638 units, while non-Broward County dealers sold 424 units to Broward County residents. Consequently, there was an estimated unmet sales potential of 1,270 units for 1986. Even if sales by Stanmar for 1986 are doubled (in essence, providing Stanmar with 14 months of sales to account for the fact that it started in business in June 1986), the unmet sales potential in Broward County still exceeds 1,000 units, which is more than sufficient to support the proposed dealership and still leave substantial room for sales increases by the two existing dealers. The foregoing sales projection figures are based upon emperical data showing the sales per population of Broward County residents, and is therefore intrinsically credible. Further, such projections have been validated. Hence, the evidence establishes not only the reasonableness of the projections calculated by Honda's expert, Dr. Ford, but also the inadequacy of current representation. The evidence establishing inadequacy of representation was particularly acute with respect to American Honda's motor scooter product line. Whereas in the state and throughout the nation more than 7 out of every 10 motor scooters sold is a Honda vehicle, in Broward County, less than 3 out of every 10 motor scooters sold is a Honda vehicle. This situation is particularly significant in that the motor scooter product line, which was introduced by American Honda in 1983, is very important to American Honda, since it is intended to be marketed to persons outside the traditional motorcycle market. Through such marketing, American Honda should be able to introduce a new segment of the population to its product line, and thereby increase its consumer base. Broward County is a good motor scooter market, as it is blessed with year-round favorable weather, many beach communities, and an emphasis on recreation. In addition, in the Fort Lauderdale area, there are a number of low income households. Low income areas are fertile markets for the motor scooter product line. Notwithstanding these factors favoring the sale of the Honda motor scooter product line, the existing Broward County dealers are either unwilling or unable to adequately represent that product line in this community, particularly in the Fort Lauderdale area. For example, neither of the protesting dealers participated significantly in a recent promotion conducted by American Honda with respect to the lower priced model motor scooter, notwithstanding the fact that a representative from American Honda visited both dealers to explain the program and its benefits, and to recommend that the dealers participate. It appears that Honda West considers itself too far removed from what it considers the primary market for the motor scooter, and Stanmar considers itself unable to compete with the local Yamaha motor scooter dealer. Further, the evidence established that the motor scooter purchaser is more likely to be a localized shopper, such that the physical separation of the two protesting dealers from the greater Fort Lauderdale area is a significant factor contributing to the inability of those dealers adequately to represent American Honda's motor scooter product line. Failure of a dealer to adequately represent a particular product line is tantamount to inadequate representation of the manufacturer or distributor. The population in Broward County has shown tremendous growth, as has Florida, and is projected to continue that growth through at least the year 2020. Significantly, the east central sector of Broward County, in which the proposed dealership would be established, is the most densely populated sector of Broward County, and is likewise projected to increase its population through the year 2020. Substantial growth is also projected for the southwest and southeast sectors, in which Honda West's dealership is located, and in the northwest and northeast sectors, in which Stanmar's dealership is located. Accordingly, it is anticipated that there will be an increasing need for the third Broward County dealership in the future. Broward County is an economically viable market, ranking second among all counties in such things as total and per capita Effective Buying Income, Buying Power Index, and total per capita Retail Sales. Additionally, Broward County has shown substantial growth in these figures through 1986. These are the economic indices typically used to gauge the vitality of a market. The protesting dealers did not dispute the deficient market share for Honda products in Broward County, but attempted to rationalize the disparity by citing to a number of factors. One such factor was certain adverse publicity associated with the previous Fort Lauderdale Honda dealership. Such evidence was, however, unpersuasive. First, protestants offered no proof that a nexus existed between the previous dealer's reputation and the inadequate market share. Second, the proof established that the previous dealer was a Honda- Yamaha-Suzuki dealer and, consequently, any adverse impact would have afflicted those product lines also. Other factors cited by the protesting dealers in an attempt to explain or rationalize Honda's poor market penetration in Broward County included the timing of product releases by the manufacturer, pricing policies, the quantity and models available for dealers to sell, insurance rates, the lack of off-road riding areas, and safety concerns regarding the 3-wheeled ATVs. Such factors are, however, unpersuasive in explaining Honda's lack of penetration into the Broward County market. To the extent such factors existed, they would have affected either all brand vehicles equally, or at least all Honda dealers equally if the factor was peculiar to a specific Honda product. Other evidence presented by the protesting dealers, such as Mr. Silverman's contention that an American Honda representative told him that the Fort Lauderdale dealership would not be replaced, is not only inherently improbable, but was rebutted by credible proof. That proof established that American Honda consistently advised Mr. Silverman that the Fort Lauderdale dealership would be re-established, and that Mr. Silverman's only concern was that it not be located any closer to his dealership than previously sited. Finally, protestants suggest that Honda's poor performance in the Broward market in 1986 can be explained by the fact that following Satnam's closure in December 1985, there was only one Honda dealer, Honda West, for Broward County until Stanmar opened in June 1986. While such dealer turnover and lack of representation could have affected Honda's performance in 1986, it does nothing to explain Honda's consistently poor market penetration in the preceding years. Consequently, protestants' assertion does not detract from the conclusion that American Honda is not adequately represented in Broward County, and more particularly in Fort Lauderdale. "Market share" and "sales penetration" are reliable measures of dealer representation. "Market share" measures a manufacturer's percentage of a given market based upon registration data obtained by R.L. Polk from the various states, and recorded monthly on a county-by-county, state-by-state, and national basis. All terrain vehicle sales are not reflected in R.L. Polk data for the State of Florida since they are not used on the roads and highways and therefore are not registered in the state. "Sales penetration" measures actual unit sales compared with total sales potential using manufacturer warranty data, whether or not the vehicle is registered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles process Sport Products' application for a motor vehicle dealer license, and that the protests of Stanmar, Inc. and International Cycle, Inc. be dismissed. DONE AND ORDERED this 17th day of April, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1987.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Errol H. Powell, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's Withdrawal of Notice of Establishment and Motion to Dismiss Protest, 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 Mazda Motor of America, Inc. d/b/a Mazda North American Operations and BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach to sell automobiles manufactured by Mazda (MAZD) at 1801 West Atlantic Boulevard, Pompano Beach (Broward County), Florida 33069. Filed September 21, 2009 2:40 PM Division of Administrative Hearings. DONE AND ORDERED this /7iy 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 this {i{j.h day of September, 2009. 1¼in'·ap·k, uDealer AdmlnilllalDf 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: Louis C. Bachrodt, III BCSS, Ltd. d/b/a Bachrodt Mazda Pompano Beach 1801 West Atlantic Boulevard Pompano Beach, Florida 33069 John J. Shahady, Esquire Adorno & Yoss, LLP 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301-4217 2 Dean Bunch, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32309 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Errol H. Powell 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 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 T. Kent Wetherell, II, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon Respondent's notice of withdrawal. Accordingly, it is hereby ORDERED that the Dealer Agreement between JH Global Services, Inc. and Golf Cart Connection, Inc. is terminated. DONE AND ORDERED this I fP: I '1 day of September, 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 September 15, 2009 3:32 PM Division of Administrative Hearings. Filed with the Clerk of the Division of Motor Vehicles this /ifll 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: Les Levy c/o Golf Cart Connection, Inc. 1220 Camp Avenue Mount Dora, Florida 32776 Jane Zhang JH Global Services, Inc. 52 Pelham Davis Circle Greenville, South Carolina 29615 T. Kent Wetherell, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 2 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 3
Findings Of Fact Petitioner, Dean's Kawasaki, Inc., d/b/a Dean's Honda-Kawasaki-Suzuki (Dean's), is an authorized dealer for Suzuki brand motorcycles, all terrain vehicles (ATV's) and generators in Vero Beach, Indian River County, Florida. Dean's is also an authorized dealer for similar Honda and Kawasaki products. Lorre Dean Mays is the president and owner of Dean's. Mr. Mays purchased the dealership, then known as Suzuki of Vero Beach, on July 31, 1981, for approximately $80,000. The purchase price reflected consideration of all assets of the business, except motorcycles, 1/ and included $7,238 of Suzuki parts and accessories and $5,690 of other accessories. Dean's currently has approximately $8,000 worth of Suzuki parts and accessories in inventory. At the time of its acquisition, the Vero Beach dealership sold exclusively Suzuki products and had been, for the year preceding July 1981, one of the top one hundred sales producers in the United States. At hearing, Mr. Mays claimed to have won this award from Suzuki, however, the evidence is clear that such award was not attributable to Mr. Mays' efforts in the dealership. While the award was given to the dealership, it was based on the dealership's performance prior to its purchase by Mr. Mays. Although not an award winning dealer, there is no suggestion that Dean's performance prior to the 1985 model year (October 1, 1984, through September 30, 1985) was anything short of satisfactory. On February 12, 1985, Suzuki's district sales manager, Charles Barrett, made his semi-annual visit to Dean's. During the course of that 31 hour visit, Mr. Barrett inventoried Dean's product lines and reviewed, with Mr. Mays, Dean's sales figures. Mr. Barrett's inspection revealed that Dean's had in stock 19 Suzuki units (11 old model motorcycles, 4 current model motorcycles, and 4 current model ATV's), and no Suzuki units on order. Comparatively, Dean's had on hand 20 Kawasaki units and 100 Honda units. Dean's Suzuki sales figures and market share for Indian River County were substantially below those of the previous year. Since the commencement of the 1985 model year on October 1, 1984, Dean's had sold only 7 Suzuki units, 2/ compared with 45 units the previous year. During the same time period, Dean's had sold 25 Kawasaki units and 150 Honda units. Nationally, Kawasaki and Suzuki enjoy about the same percentage of the market. At the conclusion of his visit, Mr. Barrett advised Mr. Mays, orally and in writing, that Dean's sale of two wheel products was poor, that better sales efforts needed to be made, and that more Suzuki units needed to be ordered and stocked. Mr. Barrett recommended that Dean's place an order for twenty 1985 model motorcycles, which would represent sixteen different models in Suzuki's current product line, as well as an advance order for fourteen 1986 model motorcycles. As of September 1985, Suzuki's records reflect that Dean's had not ordered any Suzuki units, and had made only one additional sale of a Suzuki product. At the time of hearing, Dean's had only two Suzuki units in stack. By letter of September 23, 1985, Respondent, Suzuki, notified Dean's that its dealer agreement was cancelled. The letter of termination provided in pertinent part: This action is being taken based on the following: You have failed to maintain a sales volume which is comparable to other similarly situated dealers within your region. You have failed to maintain a sufficient level of Suzuki inventory to adequately represent the line of Suzuki products. You have failed to use Suzuki advertising programs to promote Suzuki products in your sales area. Dean's timely filed a verified complaint with Respondent, Department of Highway Safety and Motor Vehicles (Department), alleging that its sales volume exceeded that of similarly situated dealers, that it maintained a sufficient inventory to supply its region, that it had participated in all Suzuki promotions available to it, and that the proposed cancellation was an unfair cancellation under Section 320.641, Florida Statutes. To compare Dean's sales performance with "similarly located Suzuki dealers in comparable trade areas," Suzuki identified its dealers situated in Florida counties with similar populations and similar total industry sales. During the period from December 31, 1984, through October 1, 1985, sales of Suzuki products by Dean's (Indian River County), compared with the dealerships in the other counties, were as follows: Citrus County 62 Clay County 112 Hernando County 13 Indian River County 5 Martin County 59 Monroe County 18 Osceola County 40 Putnam County 36 St. Johns County 17 While Dean questioned whether some of the counties selected by Suzuki were truly comparable to Indian River County, it offered no proof that would detract from the probative value of Suzuki's comparison. The sale of five Suzuki units in a nine-month period was significantly below that of similarly located Suzuki dealers, and Dean's did not suggest or attempt to show otherwise. Rather, Dean's sought to show that its sales performance was greater than that reflected by Suzuki's records because Dean's registered all purchases and sales through Mr. May's Okeechobee County dealership. In 1984 Mr. Mays had acquired Suzuki of Okeechobee. He avers that upon its acquisition he undertook to "improve" the Okeechobee franchise by purchasing for both franchises, and registering sales for both franchises, under his Okeechobee dealership number. According to Mr. Mays, he adopted this approach to "establish" the Okeechobee dealership and, thereby, assure its "allocation" of Suzuki products. Mr. Mays' testimony is not credited. 3/ During the 1985 and 1986 model years, there was no shortage of Suzuki products and Suzuki had no "allocation" policy. Mr. Mays was specifically advised by Mr. Barrett on February 12, 1985, that the Vero Beach dealership had a poor sales record and that it needed to stock more units to promote the Suzuki line. The evidence establishes that Dean's did not improve its sales record and that it did not stock for display, demonstration, or sale an inventory adequate to promote Suzuki's product line. 4/ The proof is consistent with Mr. Mays' concession that over the last two years he did not pay as much attention to his business as he should have paid. Consistent with its low inventory and poor sales performance, Dean's participated in little or none of Suzuki's cooperative advertising programs during the 1985 model year, nor did it otherwise specifically support the Suzuki product line through newspaper or billboard advertising. 5/ Dean's advertising efforts were restricted to the expenditure of $2,000 to promote Honda-Kawasaki- Suzuki at three fairs and radio "live remotes," the "sponsorship" of a Suzuki ATV racer, and occasional seasonal displays of a Suzuki product at a local shopping mall. 6/ The dealership agreement executed by Dean's and Suzuki on December 5, 1984, provides in pertinent part: PURPOSE * * * Suzuki expects, and Dealer in executing this agreement acknowledges, that Dealer will actively, aggressively and honestly promote the sale of Suzuki products to retail customers . . . To achieve the purposes set forth above and the mutual obligations of the parties to each other, it is agreed as follows: Dealer's Responsibility Subject to the terms and conditions hereof, Suzuki will sell Suzuki products to Dealer and Dealer will use its best efforts to sell Suzuki products at retail . . . * * * GENERALS CONDITIONS * * * Dealer Sales Responsibility. Dealer will maintain annual sales volume mutually agreed upon each year by Suzuki and Dealer. Dealer will establish a target growth factor which it will strive to achieve through aggressive marketing and promotion of Suzuki products. Dealer agrees that the best method of measuring its market area share is by comparison of its Suzuki sales against the national, state, county and local area Suzuki sales percentages in the motorcycle industry7 as determined by a recognized reporting organization. Dealer also agrees that comparison of its sales to similarly located Suzuki dealers in comparable trade areas is a proper criteria to measure its sales performance. Inventory Responsibility. Dealer must maintain the level of Suzuki motorcycle inventory recommended by Suzuki . . . * * * 2.10 Inventories. Dealer shall main- tain at all times a minimum inventory of Suzuki motorcycles for display, demonstration and sale. A minimum inventory is the quantity, and models, necessary for a sixty- day supply, based on the current Dealer sales plan but subject to availability. * * * 8.1 Advertising Suzuki Products. Dealer acknowledges his responsibility to use advertising programs to promote Suzuki products in his sales area. * * * 8.4 Cooperative Advertising Program. Dealer will participate in Suzuki's cooperative advertising program in accordance with Suzuki's Co-op Policy and advertising bulletins published from time to time. * * * Termination Written Notice. If Dealer does not conduct its business in accordance with the requirements set forth herein, Suzuki may terminate this agreement by giving to Dealer written notice of termination. * * * 9.3 Sixty Days Written Notice. Suzuki may terminate this agreement with sixty (60) days written notice after the occurrence of any of the following events: (1) Failure of the Dealer to maintain the sales volume established for the dealership by mutual agreement of Suzuki and Dealer. * * * (6) Failure to carry an adequate inventory of Suzuki motorcycles and genuine Suzuki parts. The dealership agreement expressly requires that Dean's maintain an annual sales volume mutually agreed upon between the parties. In this case there was no such agreement nor evidence of any attempt to reach such an agreement. Absent such proof, cancellation of Dean's dealership agreement because of "inadequate sales" would be contrary to the dealer agreement and unfair. With respect to inventory, section 2.10 of the agreement provides that Dealer shall maintain at all times a minimum inventory of Suzuki motorcycles for display, demonstration and sale. A minimum inventory is the quantity, and models, necessary for a sixty-day supply, based on the current Dealer sales plan . . . Because it had no "Dealer sales plan," Dean's asserts it is not in violation of the agreement's inventory requirements, and therefore, cancellation would be unfair. Dean's assertion is unpersuasive. While section 2.10 of the dealership agreement does establish a minimum level of inventory based on a "Dealer sales plan," it does not preclude Suzuki from requiring, pursuant to section 2.8, that a dealer maintain a higher or more diverse inventory to promote Suzuki's product line. Absent a showing that the level of inventory recommended by Suzuki was unreasonable, cancellation of the dealership agreement for failure to maintain such an inventory level is not unfair. 7/
