Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Jessica E. Varn, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this AY day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 4 day of May, 2013. 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. JB/jdc Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john.forehand@southmotors.net David Seymour Leibowitz, Esquire Braman Management Association 2060 Biscayne Boulevard, 2"! Floor Miami, Florida 33137 davidl|@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com Jessica E. Varn Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BMW OF NORTH AMERICA, LLC, Petitioner, vs. SOUTH MOTOR COMPANY OF DADE COUNTY, d/b/a SOUTH MOTORS BMW, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. POMPANO IMPORTS, INC., Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. POMPANO IMPORTS, INC., Respondent. a a aU OOOO ee Oe eee Case No. Case No. Case No. 12-3385 12-3386 12-3387 BMW OF NORTH AMERICA, LLC, Petitioner, vs. Case No. 12-3389 SARASOTA AUTOMOTIVE MANAGEMENT, LLC, d/b/a BMW OF SARASOTA BERT SMITH OLDSMOBILE, INC., d/b/a BERT SMITH INTERNATIONAL CAPITAL EUROCARS, INC., d/b/a CAPITAL BMW IMPORT CITY, INC., d/b/a QUALITY BMW REEVES IMPORT MOTORCARS, INC., Respondents. BMW OF NORTH AMERICA, LLC, _ Petitioner, vs. Case No. 12-3390 BRAMAN MOTORS, INC., d/b/a BRAMAN BMW PALM BEACH IMPORTS, INC., d/b/a BRAMAN MOTORCARS, Respondents. ORDER CLOSING FILES AND RELINQUISHING JURISDICTION This case came before the undersigned on the Petitioner's Notice of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, filed January 29, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for May 13 through 17, 2013, is canceled. 2. The files of the Division of Administrative Hearings are closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this llth day of February, 2013, in Tallahassee, Leon County, Florida. aw JESSICA E. VARN 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 11th day of February, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john. forehand@southmotors.net Dean Bunch, Esquire Nelson, Mullins, Riley, and Scarborough LLP Suite 202 3600 Maclay Boulevard, South Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com David Seymour Leibowitz, Esquire Braman Management Association 2nd Floor 2060 Biscayne Boulevard Miami, Florida 33137 davidl@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BMW OF NORTH AMERICA, LLC, Petitioner, v8. Case No. 12-3385 SOUTH MOTOR COMPANY OF DADE COUNTY, d/b/a SOUTH MOTORS BMW, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. Case No. 12-3386 POMPANO IMPORTS, INC., d/b/a Vista BMW of Pompano Beach, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. . Case No. 12-3387 POMPANO IMPORTS, INC., d/b/a Vista BMW of Coconut Creek, Respondent. Filed January 29, 2013 8:53 AM Division of Administrative Hearings BMW OF NORTH AMERICA, LLC, Petitioner, vs. SARASOTA AUTOMOTIVE MANAGEMENT, LLC, d/b/a BMW OF SARASOTA; BERT SMITH OLDSMOBILE, INC., d/b/a" BERT SMITH INTERNATIONAL; CAPITAL EUROCARS, INC., d/b/a CAPITAL BMW; IMPORT CITY, INC., d/b/a QUALITY BMW; and REEVES IMPORT MOTORCARS, INC., Respondents. BMW OF NORTH AMERICA, LLC, Petitioner, vs. BRAMAN MOTORS, INC., d/b/a BRAMAN BMV, and PALM BEACH IMPORTS, INC., d/b/a BRAMAN MOTORCARS, Respondents. Case No. 12-3389 Case No. 12-3390 NOTICE OF WITHDRAWAL OF PROPOSED DEALER AGREEMENT FROM CONSIDERATION BY RESPONDENTS AND MOTION TO DISMISS AS MOOT Comes now BMW of North America, LLC ("BMW NA") and notifies the Administrative Law Judge that it has withdrawn its notice to Respondents concerning the proposed dealer agreement which is the subject of this proceeding. withdrawal of notice, BMW NA moves to dismiss this matter as moot. motion, BMW NA states: As a result of this In support of its 1. On July 17, 2012, BMW NA notified Respondents of its intent to offer them the superseding/merged BMW Center Agreement for BMW passenger cars and BMW light trucks ("the Merged Agreement"), which was proposed to supersede, modify and replace the existing BMW Dealer Agreement for BMW passenger cars and the existing BMW SAV Center Agreement for BMW light trucks (collectively "the Existing Agreements"). 2. Respondents filed complaints with the Department of Highway Safety and Motor Vehicles ("DHSMV"), contesting the terms of the proposed Merged Agreement. These complaints were transferred by the DHSMV to the Division of Administrative Hearings. 3. On January 29, 2013, BMW NA, by letters attached hereto as Exhibit A, notified Respondents, as follows: BMW of North America, LLC ("BMW NA") hereby withdraws its notice, transmitted to you on July 17, 2012, with respect to the superseding/merged BMW Center Agreement (‘Agreement’) for BMW passenger cars and BMW light trucks. You and your successors may remain on your current forms of: dealer agreements: the BMW Dealer Agreement for BMW passenger cars (‘Old Agreement’) and the BMW SAV Center Agreement for BMW light trucks (‘SAV Center Agreement') or sign the Agreement which was offered to you, at any time in the future. 4. Inasmuch as BMW NA has withdrawn the July 17, 2012 notice that entitled Respondents to file their protests, and confirmed to Respondents that they and their successors', have the option to remain on the Existing Agreements unless, at any time in the future, they elect to sign the Merged Agreement, Respondents’ protests should now be dismissed as moot. ' Motor vehicle dealerships, and equity interests therein, are transferable to buyers as provided in Section 320.643, Florida Statutes. 3 Respectfully submitted, Lh. bL Dean Bunch dean.bunch@nelsonmullins.com C. Everett Boyd, Jr. everett. boyd@nelsonmullins.com Nelson Mullins Riley & Scarborough LLP 3600 Maclay Blvd., S., Suite 202 Tallahassee, FL 32312 Telephone: (850)907-2505 Attorneys for BMW of North America, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that the forgoing was served by electronic transmission, this at day of January, 2013, upon the following: | Jennifer Clerk, Agency Clerk clark. jennifer@hsmv.state.fl.us Dept. of Highway Safety Neil Kirkman Bldg., Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, FL 32399 John W. Forehand, Esq. john. forehand@southmotors.net 16165 South Dixie Highway Miami, FL 33157 Richard N. Sox, Esq. rsox@dealerlawyer.com Nicholas A. Bader, Esq. nbader@dealerlawyer.com 2822 Remington Green Circle Tallahassee, FL 32308 David Leibowitz, Esq. davidl@bramanmanagement.com Timothy Grecsek, Esq. timothyg@bramanmanagement.com Braman Management Association 2060 Biscayne Bivd., Second Floor Miami, FL 33137 ~ Attorney
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Jessica E. Varn, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this AY day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 4 day of May, 2013. 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. JB/jdc Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john.forehand@southmotors.net David Seymour Leibowitz, Esquire Braman Management Association 2060 Biscayne Boulevard, 2"! Floor Miami, Florida 33137 davidl|@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com Jessica E. Varn Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue 1. Whether the applications which are the subjects of DOAH Case Nos. 96-4970 and 96-4971 should be granted. 2a. Whether the respondents in DOAH Case No. 96-5525 committed the violations alleged in the Amended Administrative Complaint issued in that case. 2b. If so, what sanctions should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency, which, among other things issues motor vehicle retail installment seller (MVRIS) licenses. Jack Bowshier Buick-Pontiac-GMC Trucks, Inc. (Bowshier Buick) is a corporation organized under the laws of the State of Florida. Bowshier Buick formerly operated an automobile dealership at 2445 Southeast Federal Highway in Stuart, Florida, and held a MVRIS license issued by the Department. At all times material to the instant cases, Jack A. Bowshier, Sr., in his capacity as owner/director/president, and Jack D. Bowshier, Jr., in his capacity as general manager/director, exercised control over the policies and practices of Bowshier Buick. On or about October 25, 1995, the Department began an investigation into the business affairs of Bowshier Buick. The Department's investigation revealed, among other things, that Bowshier Buick engaged in the practice of reselling "trade-ins" without timely satisfying the existing liens on the vehicles. Such practice, which was the product of cash flow problems the dealership was experiencing, adversely affected the credit ratings of those who had "traded-in" these vehicles and prevented the ultimate purchasers of the vehicles from timely obtaining new certificates of title. In the "deal jackets" that the dealership created to place the paperwork relating to the transactions involving these "traded-in" vehicles, the Department's investigators found copies of checks which were made payable to those who held the liens on these "trade-in" vehicles. The investigators subsequently discovered, however, that these checks had not been timely sent to the lienholders, but instead had been placed in the desk drawer of the dealership's office manager, Christine Casale. On several occasions, when customers who had "traded-in" vehicles complained to the dealership that the liens on their vehicles had not been satisfied, they were told by Casale that the checks to satisfy the liens had been mailed to the lienholders, when in fact they had not been. Such misrepresentations were made in an effort to mislead and deceive these complaining customers. In making these fraudulent misrepresentations, Casale acted pursuant to instructions that had been given to her by Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr. On November 3, 1995, the Department issued an Emergency Immediate Temporary Final Order to Cease and Desist and Suspension of [Bowshier Buick's] Motor Vehicle Retail Installment Seller's License (Emergency Order) in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195. Bowshier Buick, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr., were named as respondents in the Emergency Order. The Department alleged in the Emergency Order that they had committed the following violations of the law for which they are subject to the penalties as set forth in Section 520.995, Florida Statutes: Violation of Section 520.995(1)(b), Florida Statutes, in that they have perpetrated fraud, misrepresentation, deceit, or gross negligence in retail installment transactions, regardless of reliance by or damage to the buyer. Violation of Section 520.995(1)(b), Florida Statutes, in that they have committed criminal conduct in the course of their Motor Vehicle Retail Installment Sellers business. Violation of Section 520.995(3)(d), Florida Statutes, in that they have demonstrated a lack of financial responsibility. On November 13, 1995, an Administrative Complaint for Imposition of Sanctions was filed against Bowshier Buick, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr. Jack A. Bowshier, Sr., subsequently engaged in negotiations with William Chamberlain, the owner and president of WAFC Holdings, Inc. (WAFC) concerning the sale of the assets of Bowshier Buick to WAFC in return for, among other things, the assets of two Chamberlain-owned corporations, South Florida Auto Exchange, Inc., d/b/a Palm Beach Motors, and Stuart Motors, Inc., d/b/a Stuart Motors, that were in the business of selling pre- owned motor vehicles in the West Palm Beach and Stuart areas, respectively. On December 5, 1995, Jack A. Bowshier, Sr., and Chamberlain signed paperwork (Sale/Purchase Agreements) in which their corporations agreed to consummate such a transaction. On that same date, they also, on behalf of their corporations, executed Interim Management Agreements, pursuant to which WAFC took over the management of Bowshier Buick's dealership at 2445 Southeast Federal Highway in Stuart and Bowshier Buick assumed responsibility for the management of Palm Beach Motors and Stuart Motors, effective December 5, 1995. Later that month, WPAS, Inc. (WPAS) and DAB, Inc. (DAB) were formed. At all times material to the instant case, Jack A. Bowshier, Sr., has been the sole owner, president and director of WPAS, and, as such, has directed the operations of the corporation. At all times material to the instant case, WPAS maintained its principal place of business at 2815 Okeechobee Boulevard in West Palm Beach, the location of Palm Beach Motors. At all times material to the instant case, Jack D. Bowshier, Jr., was the general manager of Palm Beach Motors. At all times material to the instant case, Jack A. Bowshier, Sr., has been the sole owner, president and director of DAB, and, as such, has directed the operations of the corporation At all times material to the instant case, DAB has maintained its principal place of business at 2695 Southeast Federal Highway in Stuart, the location of Stuart Motors. At all times material to the instant case, Todd Bowshier, has been the general manager of Stuart Motors. A Stipulation for Settlement and Consent to Final Order in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 (Stipulation) was executed by Jack A. Bowshier, Sr., on behalf of Bowshier Buick and on his own behalf, and by Jack D. Bowshier, Jr., on January 31, 1996, and by Thomas Stouffer, the Regional Director of the Department's Southeast Florida Regional Office, on behalf of the Department, on February 2, 1996. It provided as follows: The State of Florida, Department of Banking and Finance, Division of Finance (hereinafter "Department"), and Respondents Jack Bowshier Buick-Pontiac-GMC Trucks, Inc. (hereinafter "Bowshier Buick"), Jack A. Bowshier (hereinafter "JA Bowshier"), and Jack D. Bowshier (hereinafter "JD Bowshier"), in consideration of the mutual promises herein contained and other good and valuable consideration hereby agree to enter into this Stipulation for Settlement and Consent to Final Order as follows: At all times material hereto Bowshier Buick has been a Florida corporation with its principal place of business located at 2445 SE Federal Highway, Stuart, FL 34994. On or about December 25, 1988 Bowshier Buick was issued a Motor Vehicle Retail Installment Seller's License by the Department, which remains active to date. At all times material hereto JA Bowshier has been a Director, owner and control person of Bowshier Buick. In these capacities JA Bowshier creates, controls, formulates, directs and personally participates in the acts, practices and affairs of Bowshier Buick. At all times material hereto JD Bowshier has been a Director and General Manager of Bowshier Buick. In these capacities JD Bowshier creates, controls, formulates, directs and personally participates in the acts, practices and affairs of Bowshier Buick. On or about October 25, 1995, the Department received information that it believed indicated that Bowshier Buick had accepted motor vehicles as "trade-ins" and resold these vehicles without first satisfying their existing liens. The Department was concerned that purchasers of these motor vehicles could not be issued Certificates of Title. As a result of this information, Department examiners/investigators, on three occasions, visited Bowshier Buick's principal office pursuant to Section 520.996, Florida Statutes. They concluded that Bowshier Buick was engaging in acts and/or practices constituting violations of Chapter 520, Florida Statutes. On November 3, 1995, the Department filed an Emergency Immediate Temporary Final Order to Cease and Desist and Suspension of Motor Vehicle Retail Installment Seller's License (hereinafter "Emergency Order") which was followed, on November 13, 1995, with an Administrative Complaint for Imposition of Sanctions and Notice of Rights (hereinafter "Complaint"). Respondents agree that they have been duly served with both the Emergency Order and Complaint and that the Department has jurisdiction over them and this case. The Department agrees that Respondents timely filed their Answer, Affirmative Defenses and Petition for Formal Proceedings in response to the Complaint. The Department herein makes the following findings of fact, upon which the penalties imposed are based, but which findings Respondents neither admit nor deny: There were approximately thirty trade-ins taken by Bowshier Buick for which the dealership had not satisfied existing liens. Some of these vehicles were resold without first satisfying their existing liens. Some customers who traded in their motor vehicles suffered adverse credit ratings because of the failure of Bowshier Buick to pay off the existing lienholders. Bowshier Buick was experiencing severe cash flow problems. For the month of September, Bowshier Buick incurred a monthly bank charge of $5,000 for dealership bank overdrafts. A total estimated amount of $125,000 in outstanding insufficient funds checks was evident as of November, 1995. Bowshier Buick did not remit premiums collected to the insurance company for credit life, accident & health insurance policies which had been purchased by Bowshier Buick customers. They had not forwarded said premiums for policies purchased by customers since January, 1995. Bowshier Buick records were misleading in that copies of checks made payable to lienholders and in the amount due to satisfy liens were contained within the files for months, when the checks were never delivered and/or funds were never disbursed to the payee. Respondents maintain that subsequent to the Department's filing of its Emergency Order, Bowshier Buick has cooperated with the Department to resolve the lien, title, and premium problems. In an effort to avoid litigation and costs associated therewith, the Department and Respondents now voluntarily agree to enter into this Stipulation for Settlement and Consent to Final Order (hereinafter "Stipulation") addressing the violations raised by the Emergency Order and the Complaint. The Respondents and the Department agree as follows: Respondents will bring and keep all books and records up to date and maintain them accurately and in compliance with the law. Respondents will maintain and keep current all forms required by the automobile dealer's manual, Department of Motor Vehicles and the Department, including the title log. Respondents will keep all title work and registrations current and in compliance with the law. Respondents will write any and all insurance policies and remit all premiums in compliance with the law, including but not limited to credit life, accident and health insurance. Respondents will dismiss with prejudice any and all actions pending in Circuit Court and the District Court of Appeal, not file any further actions in any court which in any fashion or respect arise or tend to arise out of the facts presented by the Emergency Order or the Complaint (see paragraph 6 herein) and, indemnify and hold the Department harmless if such further actions are filed. Respondents shall, within 30 days from the date of execution of this stipulation, reimburse any and all customers who made payment(s) on past due liens which they did not owe. Within 45 days, verifiable proof of reimbursement shall be provided to the Department. Respondent shall, within 90 days from the date of execution of this stipulation, assist any and all customers who have been affected by Respondents untimely payment of liens in repairing their credit. Their assistance shall include, but shall not be limited to, sending letters to lenders wherein Respondents assume all responsibility for the late lien payments. Within 105 days, verifiable proof of such assistance shall be provided to the Department. Respondents shall, within 30 days from the date of execution of this stipulation, reimburse any and all customers due refunds on credit life, accident and health insurance. Within 45 days, verifiable proof of such assistance shall be provided to the Department. Respondents shall, immediately upon execution of this stipulation, pay off any and all outstanding past due customer liens, as well as all liens that have been improperly levied upon customers. Upon repayment, verifiable proof thereof shall be provided to the Department. Respondents shall operate the dealership, at all times in compliance with the law. Respondents shall pay to the Department by cashiers check, within 30 days of the date of execution of this stipulation, $5,000, representing costs of the Department's examination/investigation in this case. Respondents agree to sell Bowshier Buick to WAFC Holdings, Inc., its agents, nominees or assigns. If the sale is cancelled or not consummated within 6 months from the date of the Final Order herein, for any reason: 1.) Respondents will immediately notify the Department, Diane Leeds, Esq., in writing via certified mail, return receipt requested, of that fact. 2.) Respondents' Departmental license(s) shall be placed upon and remain on probation for a period of three (3) years, commencing on the date the sale is cancelled or not consummated. For the duration of the probationary period, Respondents agree to: Provide the Department, on a monthly basis, prior to the 10th day of each month, a copy of the dealership "finance log" attached hereto and made a part hereof as Exhibit "A." Allow the Department to make unannounced visits to the dealership, as frequently as the Department deems necessary, to assure that Respondents are operating in compliance with the law. Prior to the termination of the probationary period the dealership shall have, in reserve, a minimum of three (3) weeks supply of operating capital, to be computed based upon the operating expenses of the dealership at that time, and provide verifiable proof thereof to the Department. The Final Order incorporating the terms of this stipulation constitutes final agency action by the Department for which the Department may seek enforcement pursuant to the provisions of Chapters 120 and 520, Florida Statutes, and Respondents knowingly and voluntarily agree to waive any right to: 1. A formal hearing; 2. To contest the finality of the Final Order; 3. To contest the validity of any term, condition, obligation or duty created hereby; 4. To separately stated Findings of Fact and Conclusions of Law; and 5. To administrative or judicial review hereof. Respondents acknowledge, concur and stipulate that their failure to comply with any of the terms, obligations and conditions of this stipulation and the Final Order adopting it, shall result in their being deemed to be in violation of a written agreement and Final Order issued pursuant to the provisions of Chapters 120 and 520, Florida Statutes, and Respondents stipulate and agree to the issuance of an emergency suspension of their license(s) and a cease and desist order. Respondents waive all rights to prior notice and hearing before entry of such order. However, nothing herein limits Respondents' right to contest any finding or determination made by the Department concerning their alleged failure to comply with any of the terms and provisions of this stipulation or of the Final Order. Respondents waive and release the Department and its agents, representatives, and employees from any and all causes of action they may have including without limitations, any right to attorney fees arising out of this proceeding; libel; slander; violation of a constitutionally protected right; intentional tortious interference with advantageous contractual relationship and the like; arising prior to or out of the filing of the Complaint, Emergency Order, the execution of the stipulation and entry of the Final Order. The Department agrees to accept this release without acknowledging, and expressly denies, that any such causes of action may exist. Respondents further agree that nothing contained herein shall be construed to waive or restrict the Department's right to initiate any legal action based upon facts or information which come to the Department's attention subsequent to the execution of this stipulation and the Department further agrees that nothing contained herein shall be construed to waive or restrict the Respondents' rights to defend any subsequent legal action. The Department and Respondents each agree to bear their own costs and attorneys' fees incurred in connection with this proceeding and entry of the Final Order, except as stated in paragraph 11k. herein. The Department and Respondents represent that the officer(s) executing this stipulation are authorized to act on behalf of the corporations and agency for settlement purposes. The Department and Respondents acknowledge that they have read this stipulation and fully understand the rights, obligations, terms, conditions, duties, and responsibilities with respect to its contents. Execution of this stipulation by the Department shall not be construed as a final acceptance of its terms and conditions absent entry of a Final Order by the Comptroller adopting same, however, the existing Emergency Order shall be null and void immediately upon entry of the Final Order by the Comptroller. The undersigned parties hereby acknowledge and agree to the terms and conditions of the foregoing stipulation by written consent on the last date executed below, subject to final approval by the Comptroller. On February 16, 1996, a Final Order was issued in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 adopting the parties' Stipulation and requiring the parties to comply with the Stipulation's terms and conditions. The purchases of the assets of Bowshier Buick, South Florida Auto Exchange, Inc., and Stuart Motors, Inc., were finalized in March of 1996. On March 18, 1996, WPAS filed with the Department an Application for Motor Vehicle Retail Installment Seller License (WPAS's Application). In its Application, WPAS indicated that it was doing business as Palm Beach Motors at 2815 Okeechobee Boulevard in West Palm Beach. In response to Question 10 on the application form, which read as follows, WPAS answered "yes" and appended to its completed Application a copy of the Stipulation filed in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F- 11/95, and 4287b-F-1195: Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against? Yes No (If yes, list such persons, give details, and provide a copy of the allegations and documentation of the final disposition of the case.) WPAS's Application was signed by Jack A. Bowshier, Sr. On April 8, 1996, DAB filed with the Department an Application for Motor Vehicle Retail Installment Seller License (DAB's Application). In its Application, which was signed by Jack A. Bowshier, Sr., DAB indicated that it was doing business as Stuart Motors at 2695 Southeast Federal Highway in Stuart. In response to Question 10 on the application form, DAB mistakenly answered "no." Neither a copy of the Stipulation filed in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195, nor a copy of the Final Order entered in these proceedings, was appended to DAB's completed Application. The Department granted DAB's Application and issued DAB a MVRIS license, effective April 11, 1996. On May 1, 1996, Jack A. Bowshier, Sr., sent the following letter to the Department: I am voluntarily surrendering my license from the Department of Banking and Finance issued to DAB, Inc., D/B/A Stuart Motors to you today due to the fact that we have made an honest mistake in the application for the license. I apologize for this mistake. I am reapplying for the license for this corporation. I ask that you please reconsider your position. On that same day, May 1, 1996, Jack A. Bowshier, Sr., on behalf of WPAS, and William Chamberlain, on behalf of South Florida Auto Exchange, Inc., executed an agreement (WPAS Use of License Agreement), which provided as follows: AGREEMENT made this 1st day of May, 1996 by and between SOUTH FLORIDA AUTO EXCHANGE, INC., DBA PALM BEACH MOTORS, INC., a Florida corporation ("PBM") AND WPAS, INC., a Florida corporation ("Operator"). WHEREAS, PBM and Operator, or Operator's affiliate, entered into an agreement for sale and purchase of assets dated December 5, 1995 (the "Asset Purchase Agreement") for the purchase and sale of certain assets of PBM located at 2815 Okeechobee Blvd., West Palm Beach, Florida (the "Dealership"); and WHEREAS, PBM and Operator closed on the sale and purchase on or about the 19th day of March, 1996; and WHEREAS, Operator has submitted an application (the "Application") to the State of Florida, Comptroller's Office, Department of Banking (the "Department") for a license to originate financing in connection with the sale of automobiles at the Dealership, which Application remains pending with the Department; and WHEREAS, Operator has not yet received a license from the Department pursuant to the Application; and WHEREAS, Operator has requested PBM to allow Operator to continue to use PBM's license (the "PBM License") from the Department at the Dealership pending the Department's action on Operator's Application; and WHEREAS, PBM, after obtaining the verbal approval of the Department, has agreed to allow Operator to utilize PBM['s] License at the Dealership on a temporary basis. NOW, THEREFORE, for and in consideration of Ten dollars ($10.00) paid by Operator to PBM, as well as other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by PBM, the parties agree as follows: The foregoing recitals are true and correct and incorporated herein by reference. PBM hereby authorizes Operator to originate finance paper under the PBM license at the Dealership until the earlier of: PBM notice to Operator of the revocation of such authority, which notice may be given [by] PBM, in PBM's sole and absolute discretion, at any time upon three (3) days prior notice to Operator, upon the Department's disposition of Operator's application, whether such disposition is a granting of a license or the denial of a license, any demand by the Department that Operator cease the use of the PBM license, upon the infraction of any rule or regulation by Operator applicable to the PBM License. Operator agrees to utilize the PBM License only in strict compliance of all applicable rules and regulations, including, but not limited to the rules and regulations of the Department. Operator does hereby agree to indemnify and hold PBM harmless against any claim arising out of the Dealership or Operator's use of the PBM License. This Agreement contains the entire understanding of the parties and may not be changed or modified orally, but only by written instrument signed by the parties hereto. Any notice required or permitted to be given under this Agreement shall be in writing, delivered by certified mail, return receipt requested, or by a national overnight courier service, such as Federal Express, and mailed to the parties at the following address: PBM: c/o Stuart Buick Pontiac GMC 2445 S.E. Federal Highway Stuart, Florida 34994 Operator: 2815 Okeechobee Blvd. West Palm Beach, Florida 33409 This agreement shall be binding upon the parties, their successors and assigns. This Agreement shall be governed by the laws of the State of Florida. In the event litigation is instituted in connection with the enforcement of the terms of this Agreement, the prevailing party shall be entitled to an award of costs and attorneys fees, including attorneys fees and costs on appeal. The "PBM License" referenced in the WPAS Use of License Agreement had an "expiration date" of December 31, 1996. An agreement between DAB and Stuart Motors, Inc. (DAB Use of License Agreement) containing provisions substantially identical to those in the WPAS Use of License Agreement was executed by Jack A. Bowshier, Sr. (on behalf of DAB) and Chamberlain (on behalf of Stuart Motors, Inc.) also on May 1, 1996. The MVRIS license which was the subject of the DAB Use of License Agreement, like the "PBM License," had an expiration date of December 31, 1996. The WPAS and DAB Use of License Agreements were both drafted by Chamberlain's attorney, Michael Botos. Before drafting these agreements, Botos had spoken to Diane Leeds, an attorney with the Department. Botos erroneously believed that Leeds, acting on behalf of the Department, had given the "verbal approval" referenced in the agreements. On May 6, 1996, Jack A. Bowshier, Sr., filed a corrected Application for Motor Vehicle Retail Installment Seller License on behalf of DAB (DAB's Second Application). Department investigators visited Palm Beach Motors on July 19, 1996. They discovered, from an examination of WPAS's records, that WPAS (acting through Jack D. Bowshier, Jr., the general manager of Palm Beach Motors) had been involved in retail installment transactions with retail buyers of its vehicles, notwithstanding that it did not have a license from the Department authorizing it to engage in such activity. Ten retail installment contracts (signed by Jack D. Bowshier, Jr., on behalf of WPAS) were found and reviewed. In four of these ten retail installment transactions, the buyer was charged a simple interest rate in excess of 18 percent per annum. By letter mailed on July 19, 1996, the Department notified WPAS of its intention to deny WPAS's Application for a Motor Vehicle Installment Seller License. In its notice, the Department advised that its proposed denial was based upon, among other things, WPAS's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes. Department investigators visited Stuart Motors on July 22, 1996. They discovered, from an examination of DAB's records, that DAB (acting through Todd Bowshier, the general manager of Stuart Motors) had been involved in retail installment transactions with retail buyers of its vehicles, notwithstanding that it did not have a license from the Department authorizing it to engage in such activity. Ten retail installment contracts (signed by Todd Bowshier on behalf of DAB) were found and reviewed. In all of these ten retail installment transactions, the buyer was charged a simple interest rate of 19.95 percent per annum. On or about July 26, 1996, Jack A. Bowshier, Sr., met with Department representatives, including Diane Leeds, to discuss the Department's proposed action. At the meeting, Jack A. Bowshier, Sr., was told that "he could not finance without a license at that time under anybody's license." Nonetheless, following the meeting, WPAS (doing business as Palm Beach Motors) and DAB (doing business as Stuart Motors), relying on the legal advice of their attorney (and acting through their general managers), continued to operate as motor vehicle retail installment sellers without having MVRIS licenses of their own (as they had done since May of that year, following the execution of the WPAS and DAB Use of License Agreements). In addition, they continued to knowingly charge buyers simple interest rates in excess of 18 percent per annum. Jack A. Bowshier, Sr., was at all material times aware of these activities, which continued at Palm Beach Motors until approximately September or October of 1996, when the used car operation was sold,1 and continued at Stuart Motors until early 1997. By letter mailed on October 1, 1996, the Department notified DAB of its intention to deny DAB's Second Application for a Motor Vehicle Installment Seller License. In its notice, the Department advised that its proposed denial was based upon, among other things, DAB's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes. Department investigators returned to Stuart Motors on October 6, 1996, to examine DAB's records. Their examination revealed nine retail installment contracts that DAB had entered into since the investigators' July 22, 1996, visit. These contracts were signed by Todd Bowshier on behalf of DAB. In all but one of these retail installment transactions, the buyer was charged a simple interest rate of more than 18 percent per annum. In late January of 1997, personnel from the Office of the State Attorney, 19th Judicial Circuit, assisted by Department personnel, conducted a search (pursuant to a search warrant) of the records maintained by DAB at Stuart Motors. Sixty-four retail installment contracts (signed by Todd Bowshier on behalf of DAB) that DAB had entered into from August 10, 1996, to January 25, 1997, (including eight of the nine contracts that Department investigators had discovered during their October 6, 1996, visit to Stuart Motors) were seized. Thirty-seven of these 64 retail installment transactions took place from August 10, 1996, to October 16, 1996. In all but one of these 37 transactions, the buyer was charged a simple interest rate of more than 18 percent per annum. In all of the post-October 16, 1996, transactions (including eight which occurred after the expiration of the MVRIS license which was the subject of the DAB Use of License Agreement), the buyer was charged a simple interest rate of 17.99 percent. It was not until the Bowshiers received a copy of the following letter, dated February 13, 1997, the Office of the State Attorney, 19th Judicial Circuit, sent to the Department regarding the "Jack Bowshier investigation" that DAB stopped engaging in the business of a motor vehicle retail installment seller: This letter is in response to your investigation of DAB, Inc. d/b/a Stuart Motors etc. As you are aware I have spent the last three weeks reviewing the events between your Department, which began on March 18, 1996, and the above named suspect. It is apparent from the outset of your investigation that Mr. Bowshier and associates have done everything in their power to continue operating a business and finance automobiles without the appropriate Retail Installment Sellers license. However, it is my opinion that I would have insurmountable proof problems in a criminal prosecution based on the events that have occurred to date. Mr. Bowshier maintains that he can continue writing installment loan contracts because the validity of the denial of his application continues to be the subject of litigation. Mr. Bowshier continues to suggest that this is his position at the advi[c]e of his attorney, Mr. Ronald LaFace. After speaking with Mr. LaFace regarding the above I can see why the suspect would reasonably rely on his attorney's advice. Even to me, Mr. LaFace continues to maintain the position that the denial of the licensure application is "nonfinal." While we know this position is irrelevant to both the Department of Banking and Finance, and the criminal prosecution, it still creates the appearance of a defense which would remove the "criminal intent" aspect of our case. I have an ethical obligation to only prosecute cases in which I believe, based on my training and experience, there is a reasonable chance for a conviction at trial. Because this case has become so diluted in "my attorney told me" and "my understanding was . . .," I cannot ethically go forward with a criminal prosecution and still meet my burden of proof at trial. However, I understand the frustration in wanting to go forward in a case of this nature. With that in mind this letter will serve two purposes. While my declination to prosecute this case up through the date of this letter is final, it is not absolute. This letter will be sent to both Mr. Bowshier (and associates) and Mr. Ronald LaFace. In doing so, it will serve a very particular purpose. It will inform the above (including Mr. LaFace), that I will not prosecute the criminal acts that Mr. Bowshier and associates have committed to date because of the above explained proof problems. However, I will prosecute from this date forward any and all financing that occur[s] by the suspect and his associates without a license. I should make it perfectly clear to Mr. Bowshier and his attorney that it does not matter what their position is regarding the "appeal" of the denial of license, they cannot finance automobiles. Mr. Bowshier and associates should also know that the advice of their attorney to continue writing contracts during the pendency of the licensure "appeal" is wrong. If the suspect and his associates continue to write contracts, it will constitute a criminal act despite the advice of his attorney. I will prosecute Mr. Bowshier and associates if he continues to write contracts without the appropriate licenses pr[e]scribe[d] by law. The "appeal" referenced in the letter was taken after the Department, by letter mailed October 1, 1996, advised DAB of its intention to deny DAB's Application for a Motor Vehicle Installment Seller License. In its letter, the Department advised that its proposed denial was based upon, among other things, DAB's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order (1) finding the Bowshiers guilty of the violations alleged in the Amended Administrative Complaint; (2) directing the Bowshiers to cease and desist from committing such violations; (3) imposing jointly and severally upon WPAS, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr., an administrative fine in the amount of $7,000.00; (4) imposing jointly and severally upon DAB, Jack A. Bowshier, Sr., and Todd Bowshier an administrative fine in the amount of $61,500.00; and (5) denying WPAS's and DAB's applications for licensure. DONE AND ENTERED this 28th day of May, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1998.
The Issue Whether Petitioner, Lokey Oldsmobile-Countryside, Inc. (Countryside), should be granted the opportunity to relocate the dealership 2.1 miles north of its current location.
Findings Of Fact Lokey Oldsmobile-Countryside, Inc. is an existing motor vehicle dealer with a licensed franchise location at 27756 U.S. Highway 19 North, Clearwater, Florida. Oldsmobile is the line-make sold by Countryside. Countryside seeks to relocate its franchise to 31390 U.S. Highway 19 North, Palm Harbor, Florida. This relocation is 2.1 miles to the north of the dealership's current location. The main impetus presented at hearing for the move is that the Department of Transportation will be involved in road construction at the dealership's current location for an extended period of time. This type of activity has adversely affected other dealerships along U.S. Highway 19 who have been in the path of the highway development. Recent experience with road construction by other motor vehicle dealers in the area has shown that potential car purchasers and service customers choose to go elsewhere when ingress and egress to a dealership becomes difficult. In addition, the proposed relocation will allow Countryside to join Oldsmobile with two other lines. This should make dealership operations more efficient. All other Oldsmobile dealerships in the area include other vehicle lines in their operations. General Motors Corporation, Oldsmobile Division, is the automobile manufacturer involved in these proceedings. It intends to allow Countryside to relocate its franchise to the new location within Pinellas County. General Motors, Oldsmobile Division, has contractually assigned five dealer locations in the St. Pete/Clearwater area. The following motor vehicle dealers also have existing franchise agreements to sell the same line-make in the area: Sunshine Chevrolet-Geo-Oldsmobile, Inc. in Tarpon Springs, Lokey Oldsmobile in Clearwater, and Bert Smith in St. Petersburg. Pinellas County has a population of more than 300,000, according to the latest population estimates of the University of Florida of Economics and Business Research. Due to geographical conditions, the adjacent counties Manatee and Hillsborough are not connected to the contractual area of primary responsibility assigned by General Motors, Oldsmobile Division to the area involved in this proceeding. The portion of Pasco County which is to the north of Pinellas County is physically connected and is considered part of the relevant community. During these proceedings, however, that dealership location was an open point within the dealer network. The St. Pete/Clearwater Multiple Dealer Area as defined by General Motors is a market that is relatively isolated from surrounding markets. Most intra-brand competition remains in this locale. There is no dispute between the parties regarding the appropriateness of the area contractually assigned by General Motors as the community or territory for this proceeding. Sunshine Chevrolet-Geo-Oldsmobile, Inc. has protested the proposed relocation of Countryside. It has standing to protest as it is an Oldsmobile dealer franchise within the same territory and is located within a radius of 12.5 miles of the proposed location. Sunshine is the dealership directly to the north of Countryside's current location and proposed location on U.S. Highway 19 North in Pinellas County. The proposed Countryside location is 2.1 miles closer to Sunshine's currently assigned area of geographical sales and service advantage. An area of geographical sales and service advantage is the area in which a dealer has a convenience advantage over other dealers of the same line- make due solely to its proximity to certain consumers. All of the Oldsmobile dealers in the St. Pete/Clearwater area are in a connected market. Intra-brand competition at strategic locations in the network contributes to the overall performance of all of the dealers. Due to the established areas of geographical sales and service, however, each dealer's number of retail sales and leases should be larger in the area that is nearer to the dealership. Conversely, individual dealership market penetration decreases as the territory is extended away from the dealership location. The relocation of Countryside 2.1 miles closer to Sunshine's area of geographical sales and service will slightly improve the average distance of consumers in the geographically assigned area to an Oldsmobile dealership. It will also place Countryside within one of the five inter-brand vehicle shopping locations in the community or territory. Currently, Countryside is to the south of one of the major vehicle shopping locations. The relocation will give Countryside a distance advantage over two census tracts in a population growth area previously marketed by both Countryside and Sunshine. Countryside has been the dominant dealer for the area although Sunshine has been well represented in sales and service. The slight shifting of the established area of geographical sales and service between Sunshine and Countryside will increase the level of competition between the two dealers. Sunshine currently sells each Oldsmobile at a higher price per unit than the other dealers in the territory or community. If Countryside does not relocate, customers within its area of geographical sales and service will not be adequately represented during the road construction. The physical distance between dealers in the area is a condition that would prevent other existing dealers from compensating for the loss of Countryside in the intra-brand marketing network. Countryside's area of geographical sales and service is well defined and is essential to both intra- brand and inter-brand competition for all of the Oldsmobile dealers in this territory. Sunshine will be adversely impacted financially in the two census tracts Countryside seeks to acquire if relocation is permitted and if Sunshine continues its current sales pattern. The adverse impacts to Sunshine that could be reasonably attributed to the proposed relocation of Countryside are capable of being offset by Sunshine's attention to sales in closer census tracts where a large amount of insell from other dealers occurs. Sunshine is providing adequate representation in its currently assigned area of geographical sales and service. It is in substantial compliance with its dealer agreement. If Countryside is not allowed to relocate, there will be a loss of inter-brand and intra-brand competitiveness between Sunshine, Lokey and Bert Smith. This will result in a decline in market share sales for Oldsmobile. The anticipated population growth in the territory should permit both Sunshine and Countryside to provide adequate representation in the proposed realigned areas of geographical sales and service.
Recommendation Based upon the foregoing, it is RECOMMENDED: Countryside's application to relocate should be granted. DONE and ENTERED this 21st day of September, 1992, at Tallahassee, 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 21st day of September, 1992. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See HO #2. Accepted. Accepted. Accepted. Rejected. Statute prevents consideration of financial impacts to licensee. Accepted. See HO #4. Accepted. See HO #6. Accepted. See HO #8-9. Accepted. See HO #12. Accepted. Accepted. Accepted. See HO #13. Accepted. See HO #9. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #18-#19. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #14. Accepted. Accepted. Accepted. See HO #14. Accepted. Accepted. See HO #13. Accepted. See HO #13. Accepted. Accepted. Accepted. See HO #21. Rejected. Argumentative. Rejected. Distinguishable factually. Accepted. See HO #17. Rejected. Distinguishable factually. Accepted. Rejected. Summary Accepted. See HO #14. Accepted. Rejected. Argumentative. Accept that five dealers are necessary for Oldsmobile to adequately compete in the territory and receive market shore. Reject the rest as argumentative. Rejected. Argumentative. This is a weight and sufficiency matter. Rejected. Summary as opposed to factual finding. Accepted. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #2. Accepted. See Preliminary Statement. 4. Accepted. See HO #5, #6, #10, #11 and #12. Accepted. See HO #9. Accepted. Accepted. Accepted. Accepted. See HO #22. Accepted. Accepted. Rejected. Contrary to fact. See HO #3. Rejected. Argumentative. Rejected. Weight and sufficiency issue. Rejected. Irrelevant. Accepted. Rejected. Legal argument. Reject the conclusion that a barrier exists at each dealership. See HO #13. Accepted adverse financial impact will occur. See HO #20. Accepted. Weight and sufficiency. Accepted. See HO #15. Accepted. Rejected. Contrary to fact. Rejected. Self serving. Accepted. Rejected. Contrary to fact. Accepted. See HO #6. Accepted. Rejected. Contrary to fact. See HO #18. Accepted. Accepted. Rejected. Improper standard of comparison. Accepted. See HO #14. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO #3. Rejected. Improper conclusion. COPIES FURNISHED: Charles Brantley, Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 John A. Schaefer, Esquire Johnson, Blakely, Pope, Bokor, Ruppel & Burns 911 Chestnut Street Clearwater, FL 34617 Edward W. Risko, Esquire Office of General Counsel General Motors Corporation 3031 West Grand Boulevard Detroit, MI 48202 Dean Bunch, Esquire Cabaniss, Burke & Wagner 851 East Park Avenue Tallahassee, FL 32301 David Knight, Esquire Hill, Ward & Henderson 101 East Kennedy Boulevard Suite 3700 Tampa, FL 33601
Findings Of Fact The Parties. Chrysler is a manufacturer of trucks and automobiles, including Jeep trucks and Eagle automobiles. Milton Dodge is a proposed dealer/operator of a proposed new Jeep-Eagle dealership. Milton Dodge currently sells Chrysler, Plymouth, Dodge and Dodge trucks. Don Dawson is an existing franchised Jeep-Eagle dealership located on U. S. 29, Pensacola, Escambia County, Florida. Don Dawson is located approximately 17.5 miles from the proposed Milton Dodge dealership location. Santa Rosa County, where the new dealership is to be located, has a population of less than 300,000 persons. All of the parties have standing to participate in this proceeding. The Application for A New Dealership. Chrysler has sought a permit to establish an additional Jeep-Eagle dealership for the sale of Jeep trucks and Eagle automobiles in Milton, Santa Rosa County, Florida. Don Dawson filed a timely protest to Chrysler's application pursuant to Section 320.642, Florida Statutes. The Community or Territory. The Milton Dodge proposed new dealership is to be located on U. S. 90, West of Milton, Santa Rosa County, Florida. Chrysler assigns its franchised dealerships a primary area of responsibility called a "sales locality." The sales locality of each dealer is specified in the dealer agreement between the dealer and Chrysler. Each sales locality consists of post office towns. A post office town is an area within which mail is delivered from a particular post office. Post office towns are not limited to political boundaries. The sales locality for Milton Dodge, the Milton sales locality, consists of the towns of Milton, Bagdad, and Harold, all of which are located in Santa Rosa County, Florida. To the west and southwest of the Milton sales locality is the Pensacola sales locality. The Pensacola sales locality consists of the towns of Molino, Cantonment, Gonzalez, Gulf Breeze, Lillian and Pensacola. All of the towns, except Lillian, Alabama, are located in Escambia County, Florida. Pursuant to its dealer agreement with Chrysler, Don Dawson is located in the Pensacola sales locality. To the east and southeast of the Milton sales locality is the Fort Walton Beach sales locality. This sales locality consists of the towns of Niceville, Shalimar, Destin, Mary Esther, Valparaiso and Fort Walton Beach, and Eglin Air Force Base, all of which are located in Okaloosa County, Florida. There is a Jeep-Eagle dealership, Lee Jeep Eagle, located in Fort Walton Beach. The sales locality assigned to a dealer is representative of the area in which the dealer is expected to have a competitive advantage over the same line-make dealers simply because of location. The Milton sales locality and the Pensacola sales locality are separate and distinct markets. The evidence proved, and the Petitioners and Don Dawson both agreed in their proposed recommended orders, that the relevant community or territory in this proceeding is the Milton sales locality. Adequacy of Representation. General. Once the community or territory has been identified, Section 320.642, Florida Statutes, requires a determination as to whether existing dealers have been providing "adequate representation" of the line-make of the new dealership. In order to determine whether there has been adequate representation in the Milton sales locality of Jeep trucks and Eagle automobiles, eleven factors set out in Section 320.642(2)(b), Florida Statutes, are to be considered. In order to determine whether existing dealers have been providing adequate representation, a reasonable standard of performance may be determined as a measure of proper performance. The standard(s) for comparison in this matter is described, infra, in section II.D. of this Recommended Order. Section 320.642(2)(b)1, Florida Statutes; Impact on Existing Dealers. Only the possible impact on Don Dawson, the protesting dealer in this proceeding, may be considered in applying this factor. New vehicle transactions, including sales, servicing, parts' sales and financing and insurance, represent approximately 70% of Don Dawson's income. In 1990, Don Dawson sold new motor vehicles to persons whose addresses were within the Milton sales locality. In 1989, Don Dawson sold nine automobiles and trucks (5% of its total 178 sales) to customers whose addresses were within the Milton sales locality. In 1989, approximately 59% of Don Dawson's total sales were to persons whose addresses were within the Pensacola sales locality. During 1990, approximately 55% of Don Dawson's new motor vehicle sales were to persons whose addresses were within 20 miles of the proposed new dealership location. In 1989, Don Dawson had a gross profit per new vehicle of $1,322.00. Don Dawson lost $101,004.00 on the sale of 179 new vehicles. Don Dawson was profitable in 1990 ($13,102.00; gross profit per new vehicle of $1,503.00 on 195 new vehicles) and the first eight months of 1991. During 1990, Don Dawson paid a total of $75,000.00 to $80,000.00 to its equity owners. Although the evidence supports a conclusion that it is possible that Don Dawson may suffer some loss in sales of Jeep trucks and/or Eagle automobiles, the weight of the evidence failed to prove what the total or general financial impact of the proposed new dealership might be on Don Dawson. Based upon the findings of fact, infra, concerning inadequate market penetration in the Milton sales locality, it is likely that the addition of the proposed new dealership will not negatively impact on Don Dawson's sales opportunities. Section 320.642(2)(b)2, Florida Statutes; Investment and Obligations of Existing Dealers. Don Dawson has a considerable investment in tools, parts and improvements to the property it leases from Chrysler. The evidence failed to prove that Don Dawson's investment is inadequate. Section 320.642(2)(b)3, Florida Statutes; Reasonably Expected Market Penetration for the Community or Territory. In analyzing the proper performance in a market, it is appropriate to compare the market share or market penetration of vehicle registrations within a target market with the share of vehicle registrations in an appropriate comparison market. It is appropriate to use a "segmented" approach in comparing markets. For example, in order to determine Jeep truck (or Eagle automobiles) market share, the total truck industry (or similar automobiles to those manufactured by Eagle) are compared. Jeep and Eagle market penetration in the nation as a whole and in Florida sales localities is represented by national averages and Florida sales locality averages. National markets and markets in the Florida sales localities include adequately and inadequately represented Jeep and Eagle represented markets. Therefore, these averages are very conservative. In light of the fact that the averages are the conservative it is reasonable to use the higher of the national or the Florida sales localities averages as a starting point. For Jeep, the higher standard is the national average penetration. For Eagle, the higher standard is the Florida sales localities average penetration. Florida penetration is based upon all of Florida except four small towns which are included in Alabama sales localities. It also includes one town in Alabama included in the Pensacola sales locality. After determining the national and Florida averages, it is appropriate to compare how other areas lived up to these standards. Of 68 sales localities in Florida, 32 performed above national averages for Jeep. Thirty of those that performed above national average and all that are above the Florida average (12 sales localities) have Jeep representation. A similar result is reached when Eagle penetration is reviewed. A consideration of demographics and lifestyle characteristics, based upon a comparison of the relative popularity of various vehicle types in the Milton sales locality, independent of brand type, compared to the relative popularity of the same vehicle types in Florida and nationally, confirms the reasonableness of the use of Florida and national average penetration rates as a standard. A reasonable market share expectation for Jeep for the Milton sales locality is 4.74%. A reasonable market share expectation for Eagle for the Milton sales locality is 0.95%. As is discussed, infra, Jeep-Eagle penetration in the Milton sales locality has been below these expected penetration rates indicating inadequate representation in the community or territory. The proposed new dealership location is part of a geographic area designated by Chrysler as the New Orleans Zone. This zone consists of part of the panhandle area of Florida (the northwest portion of Florida), Alabama, Mississippi and Louisiana. Like Florida and the nation as a whole, there are areas within the New Orleans Zone that do not have Jeep-Eagle dealers. Unlike Florida, where there are only 38 sales localities and 20 markets without a Jeep-Eagle dealer, there are 111 sales localities and 47 markets in the New Orleans Zone where there is no Jeep-Eagle dealer. Each Jeep-Eagle dealership is in effect assigned a minimum sales responsibility review. This review is based upon a comparison of a dealer's sales with average sales in the zone the dealer is assigned to. The weight of the evidence, however, failed to prove that dealers who meet their minimum sales responsibility are necessarily providing adequate representation. Although a comparison of sales performance of each dealer in the New Orleans Zone is made by Chrysler with the average performance within the zone as a whole, and the proposed new dealership location is within the New Orleans Zone, the weight of the evidence failed to prove that the penetration rate in the New Orleans Zone is the appropriate standard for measurement of adequate representation. The New Orleans Zone is an area established for administrative convenience. The New Orleans Zone was not established for marketing comparisons. The evidence did not prove that, other than geographic proximity, the zone is comparable. Section 320.642(2)(b)4, Florida Statutes; Actions of the Licensee Denying Existing Dealers Opportunity for Reasonable Growth, Market Expansion or Relocation. The weight of the evidence failed to prove that Chrysler has taken any action to deny Don Dawson or any other exiting dealer opportunity for reasonable growth, market expansion or relocation. The site that Don Dawson is located at is controlled by Chrysler. Don Dawson must negotiate a lease of its facilities from Chrysler and must get approval from Chrysler to add additional vehicle types. Don Dawson has had difficulty at times getting certain vehicle types from Chrysler. The weight of the evidence, however, failed to prove that any of these facts constituted any action by Chrysler to prevent Don Dawson from growing or expanding its market, or that these facts relate to any request of Don Dawson to relocate. Section 320.642(2)(b)5, Florida Statutes; Attempts by the Licensee to Coerce Existing Dealers into Consenting. The weight of the evidence failed to prove that this factor is relevant in this proceeding. Section 320.642(2)(b)6, Florida Statutes; Geographic Factors. It is approximately 17.5 miles from the proposed Milton Dodge dealership location and Don Dawson. It takes approximately 29 minutes to travel by automobile from Milton Dodge to Don Dawson. It takes approximately 51 minutes to drive the 40.4 miles from Milton Dodge to Lee Jeep Eagle in Fort Walton Beach. Jeep Eagle buyers in Pensacola and Fort Walton Beach must travel fairly extensive distances to comparison shop. Evidence concerning relevant geographic factors support approval of the new Milton Dodge dealership. Section 320.642(2)(c)7, Florida Statutes; Benefits to Consumers. Consumers in the Milton sales locality will benefit because they will not have to travel to Pensacola or Fort Walton Beach if they are interested in Jeep-Eagle vehicles. It will be easier for consumers in Pensacola to comparison shop. There will be some slight benefit to consumers in the Milton sales locality because Jeep trucks and Eagle automobiles will be more readily accessible to them if a new dealership is located in the proposed new location. The possible benefits to consumers supports approval of the proposed new dealership. Section 320.642(2)(b)8, Florida Statutes; Compliance with Dealer Agreements. The weight of the evidence failed to prove that any existing dealers are not in full compliance with the dealer agreements with Chrysler. Section 320.642(2)(b)9, Florida Statutes; Adequate Inter- and Intra-Brand Competition. There is a lack of intra-brand competition in the Milton sales locality. This contributes to inadequate representation for Jeep-Eagle vehicles in the Milton sales locality. The negative impact of the lack of proximity of a Jeep-Eagle dealer to the Milton sales locality on representation is evidenced, in part, by a comparison of market penetration in Milton compared with market penetration in Pensacola, where a dealer is located. Existing Jeep-Eagle dealers are not providing adequate intra-brand competition in the Milton sales locality. Because of high population growth in Santa Rosa County and high inter- brand competition in the Milton sales locality, representation of Jeep-Eagle is inadequate based upon inter- and intra-brand competition. Adding a Jeep-Eagle dealership to the Milton sales locality is a reasonable solution to the inadequate representation in the Milton sales locality when the performance of similar line-makes with dealerships located in the Milton sales locality are compared to national and Florida average penetration rates. Line-makes not represented in the Milton sales locality have low penetration rates. Section 320.642(2)(b)10, Florida Statutes; Economic and Marketing Conditions. On a nationwide basis there have been significant declines of approximately 21% in the sales of Jeep trucks and Eagle automobiles between 1989 and 1990. Looking at the trend in sales of Jeep and Eagle vehicles over a longer period of time, however, indicates the very cyclical nature of vehicle sales. Although the current condition of vehicle sales and the economy as a whole gives reason to consider the new dealership with some skepticism, the weight of the evidence failed to prove that the recent trend in the economy or vehicle sales should be determinative in this case. Pensacola, Milton and the surrounding areas have experienced a significant growth between 1980 and 1990. Santa Rosa County, where Milton is located, is projected through 1995 to experience substantial growth in total population, population 16 (the driving age) and over, and in household trends. Although much of the projected growth will occur along the Gulf of Mexico coast, as opposed to around Milton, Santa Rosa, including Milton, should continue to be an attractive area for vehicle sales. This finding is based upon the data concerning income of the population and the favorable economic conditions existing and forecasted for the area (see Petitioner's proposed finding of fact 73). Section 320.642(2)(b)11, Florida Statutes; Volume of Registrations By the Existing Dealer in the Community or Territory of the Proposed Dealer. The penetration by Jeep in the Milton sales locality during the period 1987-1990 was significantly less that the penetration which reasonably could be expected (see finding of fact 39) based upon national and Florida penetration rates. Although Eagle performed a little better in more recent years than Jeep, the penetration by Eagle during the period 1987-1990 was also significantly less that the penetration which reasonably could be expected based (see finding of fact 39) upon national and Florida penetration rates. Conclusion. Based upon a balanced consideration of the factors of Section 320.642(2)(b), Florida Statutes, the proposed new Jeep-Eagle dealership should be approved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order approving the application to establish a new Jeep-Eagle dealership on 800 West Highway 90, Milton, Santa Rosa County, Florida. DONE and ENTERED this 18th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Chrysler's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 and 6. 3 and 6. 3 3-5 and 7. Conclusions of law. See 19-21. Conclusions of law. Hereby accepted. 7 9-10. 8 12-13. 9 11 and 14. Cumulative. 16 and hereby accepted. 12-14 Cumulative. 15 24 and hereby accepted. 16-18 Hereby accepted. 19-22 Although these findings of fact are correct, it is unnecessary to consider the alternative community or territory of the Milton/Pensacola area identified by Chrysler. 23 See 18. Don Dawson did not have the burden of proof. 24 19. 25 See 47, 53-54 and 57. See 47. Hereby accepted. See 57. No a finding of fact. 30 32-33. 31 Don Dawson did not have the burden of proof. Don Dawson did provide some proof concerning this issue. 32 32-34. 33 35. 34 37. 35 37 and hereby accepted. 36-38 Subordinate facts. 39-41 See 38. 42 39. 43-44 Not necessary. See proposed findings of fact 19-22. 45-46 39 and hereby accepted. Not necessary. See proposed findings of fact 19-22. Subordinate fact. See 69. 50 69. 51-53 Cumulative facts. Not necessary. See proposed findings of fact 19-22. Cumulative facts. Not necessary. See proposed findings of fact 19-22. Hereby accepted. 58 See 41-44. 59 43-44. 60 41. 61 Hereby accepted. 62 See 41-44. 63-64 Hereby accepted. 65 See section K. 66 61. 67 Hereby accepted. 68 See 61, 66-67. 69 66-67. 70 67. 71-72 68 and hereby accepted. Cumulative facts. 66 and hereby accepted. 75-76 59 and hereby accepted. 77 58 and 60. 78-79 Too speculative. 80 48-49. 81 51. 82 61. See 58-62 and hereby accepted. See 59 and hereby accepted. 85 62. 86 Hereby accepted. 87 See 45-46. 88 22. 89 26. 90 See 28. 91 29. 92-93 Hereby accepted. Cumulative facts. See 35. 96 See 30-31. 97 Not relevant. Don Dawson's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 11-12. 3 Hereby accepted. 4 17. 5* 24. 6* 48. 6* See 18. 5* 32. 6* 33 and hereby accepted. 7 40. See 42. Hereby accepted. Not supported by the weight of the evidence. See 42- 44. Not relevant. Not supported by the weight of the evidence. Based on hearsay. Not relevant. See 42-44. Not relevant. 15 63. 16 Not relevant. At issue is the penetration rate in the Milton sales locality. 17 25-26. 18 27. 19 See 46. 20 23. 21 30. 22 Not relevant. Nor did the evidence prove why the offer was withdrawn. 23 2. 24-26 Not supported by the weight of the evidence. 27 See 25-26. The last sentence is not supported by the weight of the evidence. * These duplicative numbered findings of fact all appear on page 4 of Don Dawson's proposed recommended order.e COPIES FURNISHED: Dean Bunch, Esquire Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301 Edward H. Weeby, Esquire Office of General Counsel Chrysler Corporation 12000 Chrysler Drive Detroit, Michigan 48288 John L. Fiveash, Jr., Esquire Rhodes Building, Suite 106 41 North Jefferson Street Pensacola, Florida 32501-5643 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Myers & Forehand 402 North Office Plaza Drive Suite B Tallahassee, Florida 32301 Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles Room A432 Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500
The Issue The issues in this case are whether Petitioner has standing to protest the establishment of an additional motorcycle dealership; and, if so, whether Petitioner is adequately representing this line of motorcycles in the relevant territory or community pursuant to section 320.642, Florida Statutes (2018).1/
Findings Of Fact Tropical Scooters is located at 11594 Seminole Boulevard, Largo, Florida 33778. It has been in the business of selling scooters and other motorized vehicles for ten years. Michele Stanley is the owner and manager of Tropical Scooters and she has knowledge regarding its purchasing and franchise agreements, inventory, and sales figures. Although no franchise agreement was offered into evidence, Ms. Stanley testified Petitioner has an agreement with a distributor, Pacific Rim International, d/b/a Ice Bear ATV (Ice Bear), to sell YNGF motorcycles. Ice Bear has been supplying Petitioner with YNGF motorcycles for approximately two and a half years. Tropical Scooters has had a good relationship with this distributor and has encountered no problems selling the YNGF line. In the last 18 months, Tropical Scooters has sold 137 YNGF units and currently has 23 units at its showroom. Ms. Stanley discovered that Respondents had applied with the Department to establish a YNGF motorcycle dealership at 9145 66th Street North, Pinellas Park, Florida 33782, from the February 22, 2018, notice published by the Department in the Florida Administrative Register.2/ Subsequently, Tropical Scooters filed a timely complaint with the Department challenging Respondents’ application. Ms. Stanley was familiar with the proposed location of the new dealership and stated that it was four miles “as the crow flies” from the Tropical Scooters showroom. Tropical Scooters is an existing dealership that sells YNGF motorcycles and is within 12.5 of the location proposed by Powersports and Motrac for the new dealership. Therefore, Tropical Scooters has standing to bring this challenge pursuant to section 320.642(3). There was no evidence that Tropical Scooters’ representation of the YGNF line of motorcycles was inadequate in its community or territory as described in section 320.642(2)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department denying the new dealership application of Respondents for the sale and service of Sanmen County Youngfu Machine Co., Ltd., vehicles at 9145 66th Street North, Pinellas Park, Pinellas County, Florida. DONE AND ENTERED this 27th day of July, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 27th day of July, 2018.
The Issue The issue in these cases is whether two applications for new point franchise motor vehicle dealerships filed by Puma Cycles Corporation and Wild Hogs Scooters and Motorsports, LLC (Respondents), should be approved.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the two applications filed by the Respondents to establish new point franchise motor vehicle dealerships at Wild Hogs Scooters and Motorsports, LLC, for the sale of line-make FSTI motorcycles. DONE AND ENTERED this 22nd day of February, 2012, 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 22nd day of February, 2012.
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Administrative Law Judge Jeff B. Clark, of the Division of Administrative Hearings, pursuant to non-compliance to the requirements set out in the Order to Show Cause—for both parties to file responses no later than August 7, 2009 as to why this matter should not be closed based on lack of response to the Initial Order. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Galaxy Powersports, LLC d/b/a JCL International, LLC and Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746. 4 DONE AND ORDERED this /2.’~ day of September, 2009, in Tallahassee, Leon County, Florida. LA. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this [oth day of September, 2009. . NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Jeff B. Clark Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
