The Issue The issue is whether Petitioners should be permitted to establish an additional dealership for the sale of motorcycles manufactured by Astronautical Bashan Motorcycle Manufacturer Company, Ltd., at 5720 North Florida Avenue, Tampa, Florida.
Findings Of Fact Based on the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: On March 7, 2008, the Florida Administrative Weekly published a notice that Peace Industry Group intended to allow the establishment of Mobility Tech as a dealership for the sale of motorcycles manufactured by BASH at 5720 North Florida Avenue in Tampa (Hillsborough County), Florida. The notice also stated that the "new point" location for the proposed dealership is in a "county of more than 300,000 population, according to the latest population estimates of the University of Florida, Bureau of Economic and Business Research." Respondent is an existing franchised dealer of motorcycles manufactured by BASH. Respondent's dealership is located at 5908 North Armenia Avenue in Tampa, Florida. The driving distance between Respondent's dealership and the location of the new dealership that Peace Industry proposes to establish is 2.05 miles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles issue a final order denying Petitioners, Peace Industry Group, Inc., and Mobility Tech, Inc.'s, approval to establish a new BASH motorcycle dealership at 5720 North Florida Avenue, Tampa, Florida. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 19th day of November, 2008.
The Issue Whether the proposed dealership should be approved.
Findings Of Fact On August 1, 2008, in the Florida Administrative Weekly, Volume 34, Number 31, a Notice of Publication for a New Point Franchise Motor Vehicle Dealer in a County of Less than 300,000 Population was published. The notice provided that Vento North America, LLC, intended to allow the establishment of H. Long Investments Corp. d/b/a Tropical Scooters of Vero, as a dealership for the sale of motorcycles manufactured by Qianjaing Motorcycle Group Corp. (QINJ) at 4901 North U.S. Highway 1, Unit J, Vero Beach (Indian River County), Florida. On August 12, 2008, the Respondent timely filed a protest of the establishment of the Petitioner's dealership and represented that 25 percent of its retail sales were within a 20-mile straight line distance of the proposed dealership during any 12-month period out of the 36-month period immediately preceding the filing of the protest. Based upon the Petitioner's evidence, its proposed dealership location is not less than 21.51 miles from the Respondent's dealership. The Respondent did not establish that any of its sales are within 20 miles of the proposed dealership. The Respondent did not establish that it currently markets any motorcycle to be sold by the proposed dealership. More specifically, the Respondent did not offer evidence that it has an agreement for the same line-make vehicle to be sold by the proposed dealer. Vento North America, the distributor of the motorcycle brand/model to be sold at the proposed dealership, did not attend the hearing. Notice of the formal hearing was provided to all parties of record at their addresses of record. The Respondent did not timely contest the location, date, or time for the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Highway Safety and Motor Vehicles enter a Final Order dismissing the protest filed by the Respondent and approving the dealership proposed by this Petitioner. DONE AND ENTERED this 16th day of December, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 16th day of December, 2008. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 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 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Jim Buchheit Best Buy Vehicles, Inc. 3525 South US Highway 1 Fort Pierce, Florida 34982 Heidi S. Long H. Long Investments, Corp. Tropical Scooters of Vero 4901 North US highway 1, Unit J Vero Beach, Florida 32967 Alma Gonzalez Vento North America 6190 Cornerstone Court E, Suite 200 San Diego, California 92121
The Issue The issue is whether Petitioners’ application to establish a new dealership for the sale of motorcycles manufactured by Herchee Industrial Co., Ltd. (HERH), at 203 Northeast Avenue, Gainesville, Florida 32609, should be granted.
Findings Of Fact While the dealership agreement between Petitioner Adly Moto (Adly) and Respondent is not in evidence, the weight of the evidence established that Respondent is an existing franchised dealer for Petitioner Adly. According to DHSMV's published notice, Petitioner Adly intended to establish a new motorcycle dealership, Scooter Superstore, at 203 Northeast 39th Avenue, Gainesville, Florida, on or after July 16, 2008. There is no real dispute that this location is only 3 to 4 miles from Respondent's place of business. Therefore, Respondent has standing to protest Petitioner’s application pursuant to Section 320.642(3)(a)2., Florida Statutes (2008). Respondent’s license number is not in evidence. According to DHSMV’s published notice, Adly intended to establish Scooter Superstore as a dealer for the sale of HERH motorcycles. Currently, Respondent sells Adly motorcycles. The only evidence of record that HERH manufactures Adly products is an announcement dated April 2008 which states that “Her Chee Industrial/ADLY Moto LLC (USA) is proudly introducing Hammerhead Off-Road as our scooter distribution partner in the US.” It is therefore presumed that HERH manufactures Adly products. According to the evidence presented, Respondent has sold primarily scooters of 50 cubic centimeters or less. Respondent insists that he has ordered vehicles over 50 cubic centimeters from the distributor, but that the distributor has refused to ship these vehicles to him. There is evidence that at least three such vehicles were ordered by Solano Cycle, Inc., but the evidence is inconclusive as to whether or not these vehicles were to be offered for sale at the Gainesville location which is the subject of this controversy, or at another Solano Cycle location in another city. However, the evidence is insufficient to establish conclusively as to whether or not Adly vehicles larger than 50 cubic centimeters have been sold by Respondent.1 The market in Gainesville, Florida, comprises primarily college students and professors. According to Martin Solano, president of Respondent, the market in Gainesville is primarily scooters of 50 cubic centimeters or less. Other than anecdotal observations, no competent substantial evidence was presented as to the Gainesville market. There is no evidence establishing an objective, reasonable standard against which to compare the actual market penetration achieved by the existing dealer. Respondent moved to a larger location because the earlier location was very small and, therefore, could not hold a lot of stock. There is no evidence as to Respondent’s profits, capitalization, or financial resources to compete with the proposed new dealership. No market penetration data, whether inter-brand or intra-brand, is in evidence. Since an objective reasonable standard was not established, the actual penetration achieved against the expected standard cannot be established.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioners’ application. DONE AND ENTERED this 20th day of August, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 20th day of August, 2009.
The Issue Whether General Motors' decision not to renew its franchise agreement with Gallman Pontiac was "unfair" as the term is defined by Section 320.641(3), Florida statutes.
Findings Of Fact Background On or about October 28, 1988, (general Motors Corporation, Pontiac Division (General Motors) notified it franchisee, Bill Gallman Pontiac, GMC Truck, Inc. (Gallman Pontiac), a licensed motor vehicle dealer in the State of Florida, of its election not to renew the franchise agreement, effective ninety days from the date of the delivery of the notice of its decision. Because the franchise agreement was scheduled to expire on November 20, 1988, Bill Gallman would have the option to void the nonrenewal due to General Motor's failure to notify the motor vehicle dealer ninety days in advance of the proposed nonrenewal. To avoid this result and to comply with the franchise agreement, General Motors informed the dealer in the same notification that the current agreement was being extended for the same ninety day period in which the dealer had been given notice of the proposed nonrenewal. General Motors' extension of the term of the franchise agreement was a unilateral proposed novation that was accepted by Gallman Pontiac when he relied upon the modification and continued to do business under the novation. Gallman Pontiac's acceptance of the novation is clearly demonstrated by the timing of the verified complaint in this proceeding, which was filed on January 12, 1989. The specific reason stated by General Motors for its decision not to renew its franchise agreement beyond the ninety-day period was that Gallman Pontiac failed to fulfill its minimum sales performance responsibilities pursuant to its contractual obligations as set forth in the Dealer Sales and Service Agreement. Gallman Pontiac subsequently filed a verified complaint, pursuant to Section 320.641, Florida Statutes, to contest the proposed nonrenewal of the franchise agreement. The complaint alleges that the proposed nonrenewal is unfair and that the grounds asserted for the nonrenewal were factually untrue and/or legally insufficient for the intended purpose. The Mathematical Formula for Sales Effectiveness The manufacturer's primary purpose for entering into a franchise agreement with a dealer is to have its automobiles sold. To determine whether a dealer is meeting its responsibilities in this regard, the franchise agreement contains a mathematical formula which is used to evaluate the sales performance of all dealers who sell Pontiacs. Pursuant to the formula, which is expressed in the agreement and tide annual sales performance evaluation form, a dealer's sales ratio and registration ratio must be calculated. A dealer's sales ratio is determined by dividing the dealer's actual unit sales of new motor vehicles, wherever registered, by industry new unit registrations in the Dealer's Area of Prime Responsibility. A dealer's registration ratio is determined by dividing new motor vehicle unit registrations by industry new unit registrations in the Dealer's Area of Prime Responsibility. After these ratios are recorded, the dealer's sales and registration ratios are compared to zone and national registration ratio levels to determine sales and registration effectiveness. If the individual dealer's sales and registration performances reach a comparative level of 85 percent effectiveness to the zone and national levels, the dealer's performance is considered effective by General Motors. When the comparisons were made in this case, the dealer's sales effectiveness was 53.6 percent in 1987 and 68.5 percent in 1988. Registration effectiveness was 56.5 percent in 1987 and 74.1 percent in 1988. These levels of performance do not meet the minimum levels required by the franchise agreement. Other Considerations Under the Agreement In addition to the mathematical formula, the franchise agreement states that General Motors will consider other relevant factors in its sales evaluation, including the following factors: the trend over a reasonable period of time of dealer's sales performance; the manner in which dealer has conducted the sales operations, including advertising, sales promotion and treatment of customers; sales to fleet customers if they have affected registrations; the manner in which dealer has submitted orders for new motor vehicles to the Pontiac Division; the availability of new motor vehicles to dealer; and significant local conditions that may have directly affected dealer's performance. If the mathematical formulas regarding sales and registration effectiveness set forth in the franchise agreement were the sole measure used to determine Gallman Pontiac's sales performance through January 1989, it is clear that the dealer was not meeting its contractual obligations to General Motors in this area of responsibility. However, under the terms of the agreement, General Motors must look to other relevant factors that may have directly affected dealer's performance before a final determination can be made regarding an individual dealer's sales effectiveness. Contrary to the terms of the agreement, the annual evaluation forms show that Gallman Pontiac's performance was evaluated on retail sales only. The other relevant factors in the franchise agreement were not reviewed before the decision not to renew the franchise agreement was made. Other Relative Factors in the Agreement Which Should Have Been Considered in the Dealers Evaluation When the trend of the Gallman Pontiac's sales performance is reviewed, the evidence shows that Gallman Pontiac's sales performance over the life of the franchise agreement has improved relative to market growth by a small percentage (7.51%). This slight upward trend does not demonstrate an effective performance as the sales were below an acceptable standard before the increase in sales, and the improvement barely exceeded the local market growth. The time period over which the trend evaluation occurred is reasonable in this case because both parties agreed to a two-year term in the franchise agreement, which was subject to an overall evaluation prior to a renewal of the agreement. Although there was opinion testimony from a former sales manager from the dealership that Gaillman Pontiac did not order sufficient quantities and mix of vehicles, and imprudently focused the advertising towards the limited, younger group of buyers in Naples, this testimony was not found to be credible by the Hearing Officer. All of the other evidence presented by both sides regarding the manner in which the dealer conducted sales operations demonstrates that Gallman Pontiac met or exceeded his contractual obligations in this area of responsibility. Sales to fleet customers did not affect registrations in 1988. The dealer chose not to compete in the fleet market because the later resale of these vehicles interferes with the sale of new vehicles at this dealership. The manner in which the dealer submitted orders to the Pontiac Division was not criticized by General Motors. The dealer's procedures were continuously reviewed and evaluated through the Dealer Assistance Program. There was no showing that the dealer's ordering procedures directly affected its sales performance. The allocation procedures were applied to Gallman Pontiac in the same manner they were applied to other dealers. The evidence did not show that imprudent selections were made by the dealer in the ordering process, nor was it sufficiently established that manufacturer delays or the unavailability of certain products interfered with the dealer's sales in Naples. A significant local condition that may have directly affected the dealer's sales performance was the lack of receptivity in the Naples market area for linemakes in the class of automobiles offered by Pontiac. Actual sales performance data for all new car registrations in the area show that the Naples market prefers to purchase automobiles from the high group of automobiles such as Cadillac, Lincoln, BMW, Mercedes Benz, and Porsche. Pontiac does not have a linemake designed to compete in this market segment. Application of the Other Relevant Factors To The Decision Not To Renew Because the franchise agreement and the annual sales evaluation form have not made provisions for any adjustments to the original statistical formula based upon the additional considerations mentioned in paragraphs 9-13, these factors are to be considered independently from the initial mathematical calculation. The purpose of the review of these factors is to determine if the statistical analysis is a reliable indicator of the sales performance of the dealer who is being evaluated before General Motors makes its final decision regarding termination. There has been no showing that General Motors ever used the additional considerations for any other purpose in its course of dealings with other dealers in the past or that any other interpretation has been given to these factors. In this case, when the additional relevant factors are reviewed in addition to the ineffective sales and registration performance statistics, the mathematical formula continues to be a reliable indicator that the sales performance at the Gallman Pontiac dealership does not meet required standards. The additional considerations set forth in the franchise agreement which are relevant to this case, do not seriously undermine the fairness of the application of the initial mathematical calculation to the sales performance of Gallman Pontiac. While the local market's lack of receptivity directly affects Gallman Pontiac's performance, the statistical formula takes this into account to a large degree when a dealer is required to meet eighty-five percent of the zone or national average to demonstrate minimum performance. If yet another mathematical formula was created to give additional weight to this local condition beyond the provision in the minimum standards formula, the manufacturer could be harmed by a individual dealer's lack of market penetration efforts. Because it is difficult to determine the primary cause and effect of poor market penetration in a specific area, the statistical formula is generally fair to both sides in most situations. It does not unfairly accuse either the dealer or the manufacturer as being responsible for the lack of sales. One indicator of the fairness involved in the application of the formula as designed can be found in Mr. Anderson's comparative analysis of the Naples automobile market and the Sarasota market. Mr. Anderson is the expert in automobile marketing analysis presented by General Motors. This analysis refutes the opinion of Dr. Ostlund, the expert presented by Gallman Pontiac during the hearing regarding automobile marketing analysis. It is Dr. Ostlund's opinion that Naples is a unique market in which the usual statistical formula becomes unfair if it is applied to all registrations in the Dealer's Area of Responsibility. Based upon this analysis, Dr. Ostlund suggests that a weighted average be applied in the standard formula to all of the sales made by Gallman Pontiac during the franchise period. However, even if this were done, Gallman Pontiac's performance would have been 84.7 percent, which is still below the required standard of 85 percent. Contrary to Dr. Ostlund's analysis, the Naples-Sarasota comparison conducted by Mr. Anderson demonstrates that Pontiac can compete in a high income area with similar demographics to Naples within the same zone along the same Florida coast. Therefore, the usual statistical formula remains a reliable indicator of the sales effectiveness of a Pontiac dealer in Naples, Florida, and should be applied without any further weighting of averages in the statistical analysis required by the franchise agreement. Application of Additional Factors Relevant to the Decision Not to Renew Pursuant to Statute A nonrenewal of the franchise agreement is clearly permitted by the franchise agreement. The nonrenewal has been undertaken in good faith and good cause. The manufacturer has continuously encouraged the dealer to meet sales performance standards and has worked with Gallman Pontiac in an effort to achieve this goal within the time frame agreed to by the parties. Because franchise dealers are the major outlet the manufacturer has for the sale of new automobiles, it is essential that minimum levels of sales performance are achieved on a regular basis. Failure to meet the minimum sales performance over the term of this agreement by Gallman Pontiac is a material and substantial breach of the contract.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a Final Order dismissing Gallman Pontiac's complaint with prejudice. DONE and ENTERED this 28 day of June, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 28 day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0505 Petitioner's Proposed Findings of Fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #3. Reject all but last sentence. Conclusions of Law. Accept the last sentence. Rejected. Conclusion of Law. Accepted. Reject that the dealer code problem can be attri- buted to the conduct of the manufacturer. Insufficient proof. Accepted. Accepted. Accepted. Rejected. Reject the weighted average basis. See HO #14 and #15.. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #4. Accepted. See HO #6. Accepted. Accepted. Accepted. Rejected. Speculative. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #15. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #17. Rejected. Irrelevant. Attempt to shift evidentiary burden. Rejected. See HO #15. Accepted. See HO #13. Rejected. See HO #15. Rejected. See HO #15. Accepted. See HO #13. Accepted. See HO #13. Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. Rejected. See HO #15. Accepted. Accepted. Rejected. Irrelevant. Accepted. Rejected. See HO #15. Accepted. Rejected. See HO #14. Accepted. Accepted. Accept that additional factor's need to be considered. Rejected Dr. Ostlund's interpretation. See HO #9 through #15. Rejected. Improper summary. Rejected. Irrelevant. Accepted. See HO #6. Accepted. Accepted, except for the last sentence which is an opinion or closing argument as opposed to a finding of fact. Accepted. Rejected. See HO #14. Accepted. Accepted, except for Nissan. Accepted. Accepted. Rejected. See HO Accepted. Accepted. Rejected. Closing argument as opposed to finding of fact. Rejected. Irrelevant and contrary to fact. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Contrary to fact. Rejected. Conclusionary. Accepted. Rejected. Irrelevant. Rejected. See HO #10. Rejected. See HO #17. Rejected. See HO #15 and #17. Rejected. See HO #17. Accepted. Rejected. Contrary to fact. See HO #17. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. See HO 415. Accepted. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #15. Accepted. See HO #13. Accepted. Accepted. Accepted. See HO #15. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See HO #15. Rejected. Irrelevant. Accepted. Accepted. Rejected. Redundant. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See HO #14. Accepted. Accepted. See HO #9. Rejected. Unreliable conclusion. Accepted. See HO #17. Rejected. Irrelevant. Outside the reasons given for nonrenewal. See HO #8. Rejected. Same reason as given in above. Rejected. Same reason as 49 and 50. Also contrary to fact. Rejected. Irrelevant to this hearing. Rejected. Irrelevant to this hearing. Accepted. See HO #17. Accepted. See HO #15. Rejected. Redundant and argumentative. Accepted. Accepted. Rejected. Improper argument. Rejected. The use of "sales reported" was allowed by the Hearing Officer at hearing. Rejected. Irrelevant in these proceedings. Rejected. Irrelevant and unreliable speculation. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Dr. Ostlund was very credible. Mr. Anderson's analysis, based upon y~he Sarasota- Naples comparison, which tended to refute the testimony of Dr. Ostlund, was given greater weight by the Hearing Officer. COPIES FURNISHED: James D. Adams, Esquire Michael J. Alderman, Esquire Feaman, Adams, Harris, Department of Highway Fernandez & Deutch, P.A. Safety And Motor Vehicles Corporate Plaza, Fourth Floor Neil Kirkman Building 4700 N.W. Second Avenue Tallahassee, Florida 32399-0500 Boca Raton, Florida 33431 S. William Fuller, Jr., Esq. Vasilis C. Katsafanas, Esquire Fuller Johnson & Farrell Rumberger, Kirk, Caldwell, Post Office Box 1739 Cabaniss, Burke & Wechsler Tallahassee, Florida 32302 11 East Pine Street Orlando, Florida 32802 Charles J. Brantley, Director Division of Motors Vehicles William J. Whalen, Esquire Department of Highway Office of General Counsel Safety and Motor Vehicles General Motors Corporation B439 Neil Kirkman Building New Center One Building Tallahassee, Florida 32399-0500 3031 West Grand Boulevard Detroit, Michigan 48232 Enoch J. Whitney, Esquire General Counsel S. Thomas Wienner, Esquire Departments of Highway Dykema Gossett Safety and Motor Vehicles 35th Floor Neil Kirklan Building 400 Renaissance Center Tallahassee, Florida 32399-0500 Detroit, Michigan 48243
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, a copy of which is attached and incorporated by reference in this order. The Department finds that the proposed establishment of Spitzer Autoworld Homestead, Inc. was duly noticed in accordance with section 320.642, Florida Statutes, a single protest was filed to that establishment and the matter referred to the Division of Administrative Hearings, and the protest has been withdrawn with prejudice by the protestant. The Department, therefore, hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is ORDERED and ADJUDGED that the establishment of Spitzer Autoworld Homestead, Inc. as a new motor vehicle dealer for the sale and service of Chrysler, Jeep and Dodge cars and trucks at 30101 South Dixie Highway, Homestead (Miami Dade County), Florida 33030, be and Filed September 21, 2011 8:24 AM Division of Administrative Hearings is hereby approved. Having been issued license number VF-1030719, Spitzer Autoworld Homestead, Inc. is authorized to operate as a new motor vehicle dealer at 30101 South Dixie Highway, Homestead (Miami Dade County), Florida 33030. DONE AND ORDERED this ac’ day of September, 2011, in Tallahassee, Leon County, Florida. /, Sandra C. Lambert, Director “Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this S20"? day of September, 2011. Nalini Vinayak, Dealer a 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 30 days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Kenneth L. Paretti, Esquire Adams, Quinton and Paretti, P. A. 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 Jerald Freshman, Esquire Freshman & Freshman LLC 9155 South Dadeland Boulevard, Suite 1014 Miami, Florida 33156 Dean Bunch, Esquire C. Everett Boyd, Jr., Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Section
The Issue The issue in the case is whether Pacific Rim International West, Inc. (Pacific Rim), may establish a new franchise motor vehicle dealership at Tropical Scooters, LLC (Tropical), for the sale and service of motorcycles manufactured by Huzhou Daixi Zhenhua Technology Trade Co., Ltd. (DAIX).
Findings Of Fact There was no evidence presented at the hearing to establish that Powersports has a franchise agreement to sell or service DAIX motor vehicles. There was no evidence presented at the hearing that the Powersports dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new franchise motor vehicle dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and upon the post-hearing notice filed by Powersports that the protest was withdrawn, it is RECOMMENDED that the Department enter a final order dismissing the protest filed in this case. DONE AND ENTERED this 18th day of July, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of July, 2014. COPIES FURNISHED: Boyd Walden, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B435 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Steve Hurm, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399-0635 Mark W. Stanley Tropical Scooters, LLC 11610 Seminole Boulevard Largo, Florida 33778-3206 Wendy Yu Pacific Rim International West, Inc. 2181 East Francis Street Ontario, California 91761-7723 Rob Pelzel, General Manager Pinellas Powersports, LLC Suite A 7000 Park Boulevard Pinellas Park, Florida 33781-3040
The Issue The issue in this case is the “propriety of the protest regarding issues specifically within the purview of sections 320.642 and 320.699, Florida Statutes.”
Findings Of Fact On July 29, 2015, DOAH mailed a Notice of Hearing to each of the parties, scheduling the final hearing for January 13, 2016. No party objected to a final hearing on January 13, 2016. The dealership agreement between Wheelsport and Genuine is not in evidence; however, the weight of the evidence established that Wheelsport is an existing franchised dealer for Genuine, and has been since Genuine’s incorporation in 2003. Standing to protest the establishment of an additional new motor vehicle dealer depends on the population of the county in which the proposed location sits. If the population is greater than 300,000 persons, then a dealer of the same line- make must either: i) be located within a radius of 12.5 miles from the proposed location; or ii) "establish that during any 12-month period of the 36-month period preceding the filing of the [manufacturer's] application for the proposed dealership, the dealer or its predecessor made 25 percent of its retail sales of new motor vehicles to persons whose registered household addresses were located within a radius of 12.5 miles of the location of the proposed additional or relocated motor vehicle dealer." § 320.642(3)(b), Fla. Stat. The Department published the Notice, which indicated Genuine’s intent “to establish the new point location in a county of more than 300,000 population, according to the latest population estimates of the University of Florida, Bureau of Economic and Business Research." There was no testimony of the census, an actual count of the population, or any population estimates in Pinellas County in 2015. No evidence was presented showing that Pinellas County, the county in which this dealership was proposed, had a population of greater (or less) than 300,000.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Highway Safety and Motor Vehicles dismissing Action Mopeds Inc., d/b/a Action Wheelsport’s, protest of the proposed establishment of an additional dealership for failure to establish standing pursuant to section 320.642(3). DONE AND ENTERED this 1st day of March, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 1st day of March, 2016.
The Issue The issue in this case is whether Petitioners' proposed motorcycle dealership would serve a community or territory in which Respondent's dealership is not presently providing adequate representation of the same line-make vehicles that Petitioners would offer.
Findings Of Fact On March 14, 2008, an advertisement was published in the Florida Administrative Weekly, which gave notice that, unless a protest were timely filed, the Department of Highway Safety and Motor Vehicles ("Department") intended to approve the application of Petitioner USA Wholesale Scooters, Inc. ("Wholesale Scooters") for a license to establish a new dealership at 2902 East Sunrise Boulevard, Fort Lauderdale, Florida (the "Proposed New Point"), where motorcycles manufactured by Petitioner Chuanl Motorcycle USA, Ltd. ("Chuanl") would be offered for sale. Respondent Power & Play Warehouse, Inc. ("Power & Play"), which is licensed to operate a dealership, under a franchise agreement, for the sale of Chuanl motorcycles in Pompano Beach, Florida (the "Existing Dealership"), timely filed a written complaint with the Department, protesting the intended approval of the Proposed New Point. The Proposed New Point and the Existing Dealership are both situated in Broward County, Florida. It is undisputed that the population of Broward County exceeds 300,000. At the final hearing, the parties stipulated that the Proposed New Point would be located within 12.5 miles of the Existing Dealership. Wholesale Scooters failed to present persuasive evidence demonstrating that the Existing Dealership is not providing adequate representation of Chuanl motorcycles in Fort Lauderdale, Pompano Beach, Broward County, or any other conceivably relevant community or territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Wholesale Scooters' application for a license to operate a new dealership at 2902 East Sunrise Boulevard, Fort Lauderdale, Florida, where Chuanl motorcycles would be offered for sale. DONE AND ENTERED this 3rd day of September, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2008. COPIES FURNISHED: Noel Farbman USA Wholesale Scooters, Inc. 2902 East Sunrise Boulevard Fort Lauderdale, Florida 33304 Lingbin Chen Chuanl Motorcycle USA Co, Ltd. 9886 Chartwell Drive Dallas, Texas 75243 Thomas McMahon Power & Play Warehouse, Inc. 550 North Flagler Avenue Pompano Beach, Florida 33060 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 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
The Issue The issue in the case is whether an application for a motor vehicle dealer license filed by LS Motorsports, LLC, and Michael J. Konczal, Inc., should be approved.
Findings Of Fact LS MotorSports is seeking to establish a new point motor vehicle dealership in St. Petersburg, Florida, for line- make LINH. The Respondent is an existing franchise motor vehicle dealer for line-make LINH, located within 12.5 miles of the proposed new point motor vehicle dealership location. The majority of the Respondent's vehicle sales come from within a 12.5-mile radius of the proposed dealership. The Respondent timely filed a protest of LS MotorSports’ proposed dealership. There is no evidence that the Respondent is not providing adequate representation within the territory of the motor vehicles at issue in this proceeding.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the application for establishment of the motor vehicle dealer franchise at issue in this case. DONE AND ENTERED this 3rd day of April, 2009 in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of April, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Chris Densmore Scooter Escapes, LLC, d/b/a Scooter Escapes 1450 1st Avenue North St. Petersburg, Florida 33705 Mathu Solo LS Motorsports, LLC 10215 South Sam Houston Parkway West, Suite 100 Houston, Texas 77071 Michael Konczal Michael J. Konczal, Inc. 1801 28 Street North St. Petersburg, Florida 33715
The Issue The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Winter Park, Florida.
Findings Of Fact Respondent is an existing franchised dealer of motorcycles manufactured by Zongshen Industrial Group (ZONG). Petitioners have proposed the establishment of a new dealership to sell the same line and make of motorcycles as those sold by Respondent. Respondent's dealership is located at 306 West Main Street, Apopka, Florida 32712. Petitioners' proposed dealership would be located at 2650 West Fairbanks Avenue, Winter Park, Florida 32789. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership.
Recommendation Based on 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 Petitioners' proposed franchise. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 29th day of May, 2009. COPIES FURNISHED: Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkland 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 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Patricia Fornes Zongshen, Inc. 3511 Northwest 113th Court Miami, Florida 33178 Randy Lozanas Scooter City USA, LLC 2650 West Fairbanks Avenue Winter Park, Florida 32789
