The Issue Whether the proposed relocations of the existing Fort Lauderdale sales and service operations of Petitioner Holman Automotive, Inc. (Holman) for BMW passenger cars, BMW light trucks, and MINI passenger cars, as more particularly described in the notices of intent published by BMW of North America, LLC (BMW NA) in the Florida Administrative Weekly, should be permitted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the factual stipulations set forth in the parties' Pre-hearing Stipulation: BMW NA is a Florida-licensed importer and distributor of BMW passenger cars and BMW light trucks (hereinafter referred to collectively as "BMW Vehicles"), as well as MINI passenger cars (MINIs). BMW passenger cars, BMW light trucks, and MINIs constitute three separate line-makes. In 2007, BMW Vehicles competed in the following luxury passenger and light truck segments: entry compact (against Acura, Audi, Saab, and Volvo models); compact wagon (against Audi, Jaguar, Saab, and Volvo models); compact sedan (against Acura, Audi, Infiniti, Jaguar, Lexus, Mercedes, Saab, and Volvo models); compact coupe (against Infiniti and Mercedes models); compact performance (against Audi models); compact convertible (against Audi, Mercedes, Saab, and Volvo models); midsize sedan (against Acura, Audi, Infiniti, Jaguar, Lexus, Mercedes, Saab, and Volvo models); midsize super performance (against Audi, Jaguar, and Mercedes models); midsize performance (against Audi, Infiniti, Jaguar, Lexus, Mercedes, and Volvo models); midsize wagon (against Audi, Mercedes, Saab, and Volvo models); specialty roadster/coupe (against Audi, Mercedes, and Porsche models); prestige sedan (against Audi, Jaguar, Lexus, and Mercedes models); prestige convertible coupe (against Jaguar, Lexus, and Mercedes models); super convertible/coupe (against Audi, Mercedes, and Porsche models); and prestige SUV (against Acura, Cadillac, Infiniti, Land Rover, Lexus, Mercedes, Porsche, Saab, Volkswagen, and Volvo models). In 2007, the MINI Cooper competed against Smart and Volkswagen models; the MINI Cooper S competed against Chevrolet, Honda, Mitsubishi, Scion, Subaru, Volkswagen and Volvo models; the MINI Cooper convertible competed against Chrysler, Pontiac, Saturn, Smart, and Volkswagen models; and the Cooper Convertible S competed against Mazda, Pontiac, Saturn, and Volkswagen models. BMW NA distributes vehicles in the United States and Puerto Rico through a network of franchised dealers. Its dealers not only sell new vehicles, they service them as well. BMW NA's free maintenance program brings customers back to the dealership for service on a regular basis. BMW NA maintains a policy of limiting the supply of vehicles available to its dealers in order to maintain pricing power. Allocation of product to each dealer is based, in part, on the Sales Planning Guide (SPG) BMW NA assigns the dealer. The higher the SPG, the greater the supply of product the dealer will be able to receive. Each dealer is assigned a "Primary Market Area" (PMA) for which it is responsible pursuant to the terms of its franchise agreement with BMW NA. The dealer's PMA is the geographic "area [comprised of aggregated zip codes] designated by BMW NA in which [the] [d]ealer is expected to focus its activities under [its] [d]ealer [a]greement [with BMW NA]. Evaluation of [the] [d]ealer's performance [under its agreement is] primarily based upon [the] [d]ealer's activities in its [PMA]." Another factor, among others, that BMW NA considers in evaluating its dealers is the "feedback from [the] [d]ealers' customers measured by the results of customer satisfaction surveys provided to [the] dealer by BMW NA." From these survey results, a Customer Satisfaction Index (CSI) is constructed in various categories for each dealer. Some dealers have more than one dealership location in the PMA for which they are responsible. These dealers exercise their discretion to determine how the product they receive from BMW NA (for their PMAs) should be divided. In 2007, in the United States and Puerto Rico, there were approximately 340 PMAs represented by BMW Vehicle dealers and 83 PMAs represented by MINI dealers. The BMW Vehicle PMAs, collectively, cover virtually the entire United States and Puerto Rico. Contrastingly, there are significant land areas in the United States and Puerto Rico that are not included in the 83 MINI PMAs. These are referred to as "unrepresented" areas. Florida has 21 BMW Vehicle PMAs (in which there are 26 dealership locations) and 8 MINI PMAs (half of which are in two counties, Broward and Miami-Dade). Holman and Vista are each Florida BMW Vehicle and MINI dealers with operations in Broward County. There are no other BMW Vehicle or MINI dealers located in Broward County. Holman's BMW Vehicle PMA covers the southern portion of Broward County and extends just over the border (to the south) into northeastern Miami-Dade County. Vista's BMW Vehicle PMA covers the northern portion of Broward County and extends just over the border (to the north) into southern Palm Beach County. The two PMAs cover Broward County in its entirety. Holman's MINI PMA covers the southeastern portion of Broward County and extends just over the border into northeastern Miami-Dade County. Vista's MINI PMA covers the northern portion of Broward County and extends just over the border into southern Palm Beach County. The southwestern portion of Broward County is unrepresented by any dealer. There are two BMW Vehicle dealers and two MINI dealers located south of Broward County in Miami-Dade County. Braman Miami operates a BMW Vehicle dealership (Braman Miami BMW) and a MINI dealership (Braman Miami MINI) from a location on Biscayne Boulevard (U.S. Route 1/Federal Highway) in the area of downtown Miami. (At this location, Braman Miami is building a "five- story parking deck with service on two floors," which will "significant[ly] expan[d]" its service capability.) To the south, there is another BMW Vehicle dealership and another MINI dealership, both run by South Motors3 (South Motors BMW and South Motors MINI, respectively). These are the only BMW Vehicle and MINI dealership locations in Miami-Dade County. Braman Miami's BMW Vehicle PMA and its MINI PMA cover most of northern Miami-Dade County. South Motors' BMW Vehicle PMA covers the southern portion of Miami-Dade County and all of Monroe County (which has no BMW Vehicle dealerships). South Motors' MINI PMA covers the remaining represented portions of Miami-Dade County (that is, those represented areas not represented by Holman's MINI PMA or Braman Miami's MINI PMA). (Monroe County has no MINI representation.) In Palm Beach County, immediately to the north of Broward County, there is one BMW Vehicle dealership location and one MINI dealership location. Both dealerships (Braman West Palm Beach BMW and Braman West Palm Beach MINI) are run by the Braman organization. Compared to Miami-Dade County and Palm Beach County, Broward County has two and four times, respectively, as many BMW Vehicle dealership locations. It has the same number of MINI dealership locations as Miami-Dade County and twice as many as Palm Beach County. Holman has two BMW Vehicle dealership locations in Broward County, a "primary" location in the downtown Fort Lauderdale area (Holman BMW Fort Lauderdale) and a "satellite" location in Pembroke Pines (Holman BMW Pembroke Pines). Holman BMW Fort Lauderdale's sales facility is located at 1400 South Federal Highway, 21.5 miles (by air) north of Braman Miami BMW (22.3 miles, if driving). This location puts it on a well traveled north-south pathway to downtown Fort Lauderdale. Holman BMW Fort Lauderdale's sales facility is staffed by 16 new BMW Vehicle sales consultants, the maximum amount the facility can accommodate. Saturdays are particularly busy days at the facility. To decrease the amount of time customers have to wait to be helped, Holman has "ma[d]e it mandatory for every sales consultant to work every Saturday," a move that was not well received by the sales consultants, but one that Holman believed "from a business perspective [it had to make] so that [it] had enough people on hand to handle the volume of customers that were coming through the door." The sales facility's air-conditioned showroom has enough space to display no more than seven BMW Vehicles, less than what is necessary to "have a representative sample of every [vehicle] that [Holman] sell[s]." Customers must go outside and deal with the sometimes uncomfortable south Florida weather to view other display vehicles. Customer parking at the sales facility is limited. Holman BMW Fort Lauderdale's service facility is located at 1812 South Andrews Avenue, several blocks away from its sales facility. Holman BMW Fort Lauderdale has had these separate sales and service locations since the 1980s. Having sales and service facilities at different locations makes it more difficult for the sales staff to take advantage of the marketing opportunities that exist when customers come in to have their vehicles serviced, but this has not prevented Holman BMW Fort Lauderdale from being a successful and profitable dealership. (In 2007, for example, Holman BMW Fort Lauderdale's business operations generated a net profit of $15 million for Holman.) Holman BMW Pembroke Pines' sales and service facilities are located at 14800 Sheridan Street in Pembroke Pines, 18.8 miles (by air) north of Braman Miami BMW (23.5 miles, if driving) and 14 miles (by air) from Holman BMW Fort Lauderdale's sales facility (18.3 miles, if driving). These facilities occupy 11 acres of a 17.5 acre parcel. The remainder of the parcel is occupied by a Lincoln-Mercury dealership owned by Holman. Holman BMW Pembroke Pines' service facility has 45 service stalls. Holman has a single MINI dealership location in Broward County (Holman MINI). Holman MINI's sales facility is located at 1440 South Federal Highway in Fort Lauderdale. It sits on the same 1.5 acre parcel that Holman BMW Fort Lauderdale's sales facility and pre-owned vehicle operation also occupy (Holman Fort Lauderdale Parcel). There is room on the Holman Fort Lauderdale Parcel for 40 new BMW Vehicles and MINIs. Holman BMW Fort Lauderdale and Holman MINI typically have a combined new vehicle inventory of 225 vehicles. Those new vehicles for which there is no room on the Holman Fort Lauderdale Parcel are stored off-site at a location about three miles away, near where Holman operates a Honda dealership. Also located off-site, at 1777 South Andrews Avenue in Fort Lauderdale, is Holman's in-house accounting department. Sales consultants "need[ing] to pull a deal file to get information [about] a previous customer" or needing other documents held by the accounting department are not able to retrieve them as quickly and reliably as they would if the accounting department were housed on-site. The customer parking at Holman MINI's sales facility is even more limited than it is at Holman BMW Fort Lauderdale's sales facility (where most MINI customers wind up having to park). There is room to display no more than three vehicles in Holman MINI's showroom. The display area is located right next to where the sales consultants sit down and talk to customers, resulting in the possibility that conversations concerning personal financial information and other private matters may be overheard by those looking at vehicles in the display area. Holman MINI shares the service facility used by Holman BMW Fort Lauderdale (Holman Fort Lauderdale Service Facility). The Holman Fort Lauderdale Service Facility has a small, four-lane combined service drive for BMW Vehicles and MINIs, which often gets "back[ed] up" in the morning when customers drop off their vehicles, as well as at the end of the day when vehicles are picked up. The facility has 37 service stalls for the BMW Vehicles and MINIs that are brought in to be serviced. In the interest of "[c]ustomer convenience," Holman has given Enterprise Rent-A-Car space in the facility to conduct rental car operations. There is a parts department located at the facility, but the space it occupies is not "big enough to store all the parts" it needs to be fully operational. As a result, parts are also kept in a "remote warehouse" located where the new vehicle inventory is stored (near the Holman Honda dealership), as well as at a body shop that Holman operates in Hollywood, Florida, near the corner of U.S. Route 1/Federal Highway and Sheridan Street. There are a total of 150 spaces available for parking vehicles at or around the Holman Fort Lauderdale Service Facility, 79 of which are across the street from the facility (on the west side of Andrews Avenue) and are used for employee parking and to "stage the [vehicles] waiting to be [serviced]." These 79 spaces are leased on a month-to-month basis. Under the terms of the lease, no overnight parking is allowed, so any vehicles in these spaces must be moved to the service facility before closing time. As a general rule, customers can get same day appointments to have their vehicles serviced at the Holman Fort Lauderdale Service Facility. There are "always . . . enough slots to handle emergencies," but "from time to time," during busy periods, it may take as long as two weeks to get an appointment for a regularly scheduled maintenance visit. Vista, like Holman, has two BMW Vehicle dealership locations in Broward County, a "primary" location in Coconut Creek (Vista BMW Coconut Creek) and a "satellite" location in the downtown Pompano Beach area (Vista BMW Pompano Beach). (Although they each have two BMW Vehicle dealership locations in Broward County, Vista and Holman are assigned only one PMA each.) Vista BMW Coconut Creek's sales and service facilities are located at 4401 Sample Road in Coconut Creek, which is 33 miles (by air) from Braman Miami BMW (34.7 miles, if driving); 12.1 miles (by air) from Holman BMW Fort Lauderdale's sales facility (14.5 miles, if driving); and 19.7 miles (by air) from Holman BMW Pembroke Pines (25.8 miles, if driving). Vista BMW Pompano Beach's sales and services facilities are located at 744 North Federal Highway in Pompano Beach, which is 31 miles (by air) from Braman Miami BMW (32.8 miles, if driving); 9.5 miles (by air) from Holman BMW Fort Lauderdale's sales facility (10.5 miles, if driving); 21 miles (by air) from Holman BMW Pembroke Pines (26.8 miles, if driving); and 5.6 miles (by air) from Vista BMW Coconut Creek (8 miles, if driving). The service facility at this location has 34 service stalls. Vista has a single MINI dealership location in Broward County (Vista MINI). Vista MINI and Holman MINI are currently the two closest MINI dealerships in the State of Florida. Vista MINI's sales and service facilities are located at 4401 Sample Road in Coconut Creek (on the same campus as Vista BMW Coconut Creek). Vista has a total of 51 service stalls on its Coconut Creek campus. Prior to 2002, in Broward County, there were only two BMW Vehicle dealership locations and no MINI dealership locations. The two BMW Vehicle dealership locations were both east of I-95. One was Holman BMW Forth Lauderdale. The other was a Vista dealership operation at 700 North Federal Highway in Pompano Beach. Holman MINI and Vista MINI were opened in March 2002 and October 2003, respectively. Holman's decision to house its MINI operations at its existing BMW Vehicle facility in the downtown Fort Lauderdale area resulted in a reduction in the amount of space it had available there for BMW sales and service operations. BMW NA prefers (but does not require) that its MINI dealerships with sales volumes similar to that of Holman MINI be located in exclusive facilities and not co-located with BMW operations. In October 2003, Vista also moved its BMW Vehicle dealership (which at the time had only one location) from 700 North Federal Highway in Pompano Beach to newly-constructed facilities at 4401 Sample Road in Coconut Creek (the present site of Vista BMW Coconut Creek). Vista spent $21 million to build the Coconut Creek campus that houses its BMW Vehicle and MINI dealerships. In December 2003, a third BMW Vehicle dealership location, Holman BMW Pembroke Pines, was opened in Broward County. In November 2004, the Department entered a Final Order authorizing Vista to establish an additional dealership location at 744 North Federal Highway in Pompano Beach, which was "next door" to, and just north of, the site it had vacated when it had moved its BMW Vehicle dealership to Coconut Creek in October 2003. An "old Daewoo facility" had been located at 744 Federal Highway. Vista purchased and subsequently renovated the site, at a cost of $5.5 million. In April 2006, Vista opened Vista BMW Pompano Beach (the authorized additional dealership location), bringing to four the total number of BMW dealership locations in Broward County, two east of I-95 (Holman BMW Fort Lauderdale and Vista BMW Pompano Beach) housed in smaller, older facilities typical of urban dealerships and two in the faster-growing area west of I-95 (Holman BMW Pembroke Pines and Vista BMW Coconut Creek) housed in large, modern, state-of-the-art facilities. Although it opened the Pompano Beach dealership location, Vista still had "additional plans for expansion and renovation" for which it needed local governmental approval. Vista has only recently obtained this approval, and it has not yet begun this planned expansion and renovation project. Since returning to the Pompano Beach area in April 2006, after a two-and-a-half-year absence, Vista has attempted to build back up its business in that part of the county. These efforts, which are ongoing, have included making substantial expenditures for advertising. In reconfiguring and expanding the BMW Vehicle dealer network in Broward County to make its products and services more conveniently accessible to customers in the area, and in adding MINI representation in the county, BMW NA worked with its existing dealers, Vista and Holman, in an effort to allow them to grow with the market. Calendar year 2007 was the first complete calendar year that Broward County had as many BMW Vehicle dealership locations as it presently has.4 It was also the most recent period for which a full, calendar year's worth of sales data was available at the time of the final hearing. In 2007, there were 3,664 new BMW passenger cars registered in Holman's BMW Vehicle PMA, 2,126 of them sold by Holman, 801 of them sold by Vista, 356 of them sold by Braman Miami, 108 of them sold by South Motors, and 89 of them sold by Braman West Palm Beach. In 2007, there were 3,388 new BMW passenger cars registered in Vista's BMW Vehicle PMA, 2,101 of them sold by Vista, 563 of them sold by Braman West Palm Beach, 402 of them sold by Holman, 61 of them sold by Braman Miami, and 24 of them sold by South Motors. In 2007, there were 4,008 new BMW passenger cars registered in Braman Miami's BMW Vehicle PMA, 1,792 of them sold by Braman Miami BMW, 939 of them sold by South Motors, 595 of them sold by Holman, 382 of them sold by Vista, and 70 of them sold by Braman West Palm Beach. In 2007, there were 2,587 new BMW passenger cars registered in South Motors' BMW Vehicle PMA, 1,548 of them sold by South Motors, 636 of them sold by Braman Miami, 144 of them sold by Holman, 111 of them sold by Vista, and 36 of them sold by Braman West Palm Beach. In 2007, there were 2,048 new BMW passenger cars registered in Braman West Palm Beach's BMW Vehicle PMA, 1,457 of them sold by Braman West Palm Beach, 261 of them sold by Vista, 49 of them sold by Holman, 23 of them sold by Braman Miami, and 13 of them sold by South Motors. In 2007, Holman sold a total of 3,392 new Florida- registered BMW passenger cars. Of this number, 62.68% were registered in its BMW Vehicle PMA; 17.54% were registered in Braman Miami's BMW Vehicle PMA; 11.85% were registered in Vista's BMW Vehicle PMA; 4.25% were registered in South Motors' BMW Vehicle PMA; and 1.44% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Holman's BMW Vehicle PMA purchasing new BMW passenger cars, 58.02% did so from Holman; 21.86% did so from Vista; 9.80% did so from Braman Miami; 2.95% did so from South Motors; and 2.43% did so from Braman West Palm Beach. In 2007, Vista sold a total of 3,726 new Florida- registered BMW passenger cars.5 Of this number, 56.39% were registered in its BMW Vehicle PMA; 21.50% were registered in Holman's BMW Vehicle PMA; 10.25% were registered in Braman Miami's BMW Vehicle PMA; 7% were registered in Braman West Palm Beach's BMW Vehicle PMA; and 2.98% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Vista's BMW Vehicle PMA purchasing new BMW passenger cars, 62.01% did so from Vista; 16.62% did so from Braman West Palm Beach; 11.87% did so from Holman; 1.80% did so from Braman Miami; and 0.71% did so from South Motors. In 2007, Braman Miami sold a total of 2,917 new Florida-registered BMW passenger cars. Of this number, 61.43% were registered in its BMW Vehicle PMA; 21.80% were registered in South Motors' BMW Vehicle PMA; 12.31% were registered in Holman's BMW Vehicle PMA; 2.09% were registered in Vista's BMW Vehicle PMA; and 0.79% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Braman Miami's BMW Vehicle PMA purchasing new BMW passenger cars, 44.71% did so from Braman Miami; 23.43% did so from South Motors; 14.85% did so from Holman; 9.53% did so from Vista; and 1.75% did so from Braman West Palm Beach. In 2007, South Motors sold a total of 2,681 new Florida-registered BMW passenger cars. Of this number, 57.74% were registered in its BMW Vehicle PMA; 35.02% were registered in Braman Miami's BMW Vehicle PMA; 4.03% were registered in Holman's BMW Vehicle PMA; 0.90% were registered in Vista's BMW Vehicle PMA; and 0.48% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in South Motors' BMW Vehicle PMA purchasing new BMW passenger cars, 59.84% did so from South Motors; 24.58% did so from Braman Miami; 5.57% did so from Holman; 4.29% did so from Vista; and 1.39% did so from Braman West Palm Beach. In 2007, Braman West Palm Beach sold a total of 2,389 new Florida-registered BMW passenger cars. Of this number, 60.99% were registered in its BMW Vehicle PMA; 23.57% were registered in Vista's BMW Vehicle PMA; 3.73% were registered in Holman's BMW Vehicle PMA; 2.93% were registered in Braman Miami's BMW Vehicle PMA; and 1.51% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Braman West Palm Beach's BMW Vehicle PMA purchasing new BMW passenger cars, 71.14% did so from Braman West Palm Beach; 12.74% did so from Vista; 2.39% did so from Holman; 1.12% did so from Braman Miami; and 0.63% did so from South Motors. In 2007, in terms of total sales of new BMW passenger cars, Vista, Holman, Braman Miami, South Motors, and Braman West Palm Beach were the number one, two, three, six, and eight dealers, respectively, in the United States. (In 2006, Vista was number one, Holman was number two, Braman West Palm Beach was number four, Braman Miami was number five, and South Motors was number seven. In 2008, as of October 9, 2008, Vista was number one, Holman was number two, Braman Miami was number three, South Motors was number six, and Braman West Palm Beach was number nine.) In 2007, there were 848 new BMW light trucks registered in Holman's BMW Vehicle PMA, 494 of them sold by Holman, 202 of them sold by Vista, 70 of them sold by Braman Miami, 21 of them sold by South Motors, and 20 of them sold by Braman West Palm Beach. In 2007, there were 672 new BMW light trucks registered in Vista's BMW Vehicle PMA, 430 of them sold by Vista, 95 of them sold by Braman West Palm Beach, 78 of them sold by Holman, 17 of them sold by Braman Miami, and 4 of them sold by South Motors. In 2007, there were 1,103 new BMW light trucks registered in Braman Miami's BMW Vehicle PMA, 510 of them sold by Braman Miami, 256 of them sold by South Motors, 147 of them sold by Holman, 86 of them sold by Vista, and 18 of them sold by Braman West Palm Beach. In 2007, there were 567 new BMW light trucks registered in South Motors' BMW Vehicle PMA, 363 of them sold by South Motors, 96 of them sold by Braman Miami, 37 of them sold by Vista, 34 of them sold by Holman, and 10 of them sold by Braman West Palm Beach. In 2007, there were 445 new BMW light trucks registered in Braman West Palm Beach's BMW Vehicle PMA, 342 of them sold by Braman West Palm Beach, 50 of them sold by Vista, 6 of them sold by Holman, 4 of them sold by Braman Miami, and 1 of them sold by South Motors. In 2007, Holman sold a total of 772 new Florida- registered BMW light trucks. Of this number, 63.99% were registered in its BMW Vehicle PMA; 19.04% were registered in Braman Miami's BMW Vehicle PMA; 10.10% were registered in Vista's BMW Vehicle PMA; 4.40% were registered in South Motors' BMW Vehicle PMA; and 0.78% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Holman's BMW Vehicle PMA purchasing new BMW light trucks, 58.25% did so from Holman; 23.82% did so from Vista; 8.25% did so from Braman Miami; 2.48% did so from South Motors; and 2.36% did so from Braman West Palm Beach. In 2007, Vista sold a total of 824 new Florida- registered BMW light trucks. Of this number, 52.18% were registered in its BMW Vehicle PMA; 24.51% were registered in Holman's BMW Vehicle PMA; 10.44% were registered in Braman Miami's BMW Vehicle PMA; 6.07% were registered in Braman West Palm Beach's BMW Vehicle PMA; and 4.49% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Vista's BMW Vehicle PMA purchasing new BMW light trucks, 63.99% did so from Vista; 14.14% did so from Braman West Palm Beach; 11.61% did so from Holman; 2.53% did so from Braman Miami; and 0.60% did so from South Motors. In 2007, Braman Miami sold a total of 706 new Florida- registered BMW light trucks. Of this number, 72.24% were registered in its BMW Vehicle PMA; 13.60% were registered in South Motors' BMW Vehicle PMA; 9.92% were registered in Holman's BMW Vehicle PMA; 2.41% were registered in Vista's BMW Vehicle PMA; and 0.57% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Braman Miami's BMW Vehicle PMA purchasing new BMW light trucks, 46.24% did so from Braman Miami; 23.21% did so from South Motors; 13.33% did so from Holman; 7.80% did so from Vista; and 1.63% did so from Braman West Palm Beach. In 2007, South Motors sold a total of 648 new Florida- registered BMW light trucks. Of this number, 56.02% were registered in its BMW Vehicle PMA; 39.51% were registered in Braman Miami's BMW Vehicle PMA; 3.24% were registered in Holman's BMW Vehicle PMA; 0.62% were registered in Vista's BMW Vehicle PMA; and 0.15% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in South Motors' BMW Vehicle PMA purchasing new BMW light trucks, 64.02% did so from South Motors; 16.93% did so from Braman Miami; 6.53% did so from Vista; 6.00% did so from Holman; and 1.76% did so from Braman West Palm Beach. In 2007, Braman West Palm Beach sold a total of 516 new Florida-registered BMW light trucks. Of this number, 66.28% were registered in its BMW Vehicle PMA; 18.41% were registered in Vista's BMW Vehicle PMA; 3.86% were registered in Holman's BMW Vehicle PMA; 3.49% were registered in Braman Miami's BMW Vehicle PMA; and 1.94% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Braman West Palm Beach's BMW Vehicle PMA purchasing new BMW light trucks, 76.85% did so from Braman West Palm Beach; 11.24% did so from Vista; 1.35% did so from Holman; 0.90% did so from Braman Miami; and 0.22% did so from South Motors. In 2007, in terms of total sales of new BMW light trucks, Vista, Braman Miami, Holman, and South Motors, were the number one, three, four, and five dealers, respectively, in the United States, with Braman West Palm Beach not making the top ten. (In 2006, Holman was number one, Vista was number two, South Motors was number three, and Braman Miami was number four, with Braman West Palm Beach again not making the top ten. In 2008, as of October 9, 2008, Vista was number one, Holman was number two, Braman Miami was number three, South Motors was number six, and Braman West Palm Beach was number nine.) Broward County is also home to the number one (in total sales volume) Lexus, Infiniti, Porsche, and Volkswagen dealership locations in the United States. In 2007, there were 346 new MINIs registered in Holman's MINI PMA, 182 of them sold by Holman, 67 of them sold by Braman Miami, 66 of them sold by Vista, 11 of them sold by South Motors, and 8 of them sold by Braman West Palm Beach. In 2007, there were 309 new MINIs registered in Vista's MINI PMA, 197 of them sold by Vista, 45 of them sold by Holman, 43 of them sold by Braman West Palm Beach, 10 of them sold by Braman Miami, and 3 of them sold by South Motors. In 2007, there were 804 new MINIs registered in Braman Miami's MINI PMA, 523 of them sold by Braman Miami, 180 of them sold by South Motors, 55 of them sold by Holman, 27 of them sold by Vista, and 6 of them sold by Braman West Palm Beach. In 2007, there were 370 new MINIs registered in South Motors' MINI PMA, 231 of them sold by South Motors, 99 of them sold by Braman Miami, 19 of them sold by Holman, 16 of them sold by Vista, and 3 of them sold by Braman West Palm Beach. In 2007, there were 247 new MINIs registered in Braman West Palm Beach's MINI PMA, 179 of them sold by Braman West Palm Beach, 40 of them sold by Vista, 11 of them sold by Holman, and 7 of them sold by Braman Miami. South Motors sold none of these new MINIs. In 2007, Holman sold a total of 457 new Florida- registered MINIs.6 Of this number, 39.82% were registered in its MINI PMA; 12.04% were registered in Braman Miami's MINI PMA; 9.85% were registered in Vista's MINI PMA; 4.16% were registered in South Motors' MINI PMA; and 2.41% were registered in Braman West Palm Beach's MINI PMA. In 2007, of the consumers in Holman's MINI PMA purchasing new MINIs, 52.60% did so from Holman; 19.36% did so from Braman Miami; 19.08% did so from Vista; 3.18% did so from South Motors; and 2.31% did so from Braman West Palm Beach. In 2007, Vista sold a total of 419 new Florida- registered MINIs. Of this number, 47.02% were registered in its MINI PMA; 15.75% were registered in Holman's MINI PMA; 9.55% were registered in Braman West Palm Beach's MINI PMA; 6.44% were registered in Braman Miami's MINI PMA; and 3.82% were registered in South Motors' MINI PMA.. In 2007, of the consumers in Vista's MINI PMA purchasing new MINIs, 63.75% did so from Vista; 14.56% did so from Holman; 13.92% did so from Braman West Palm Beach; 3.24% did so from Braman Miami; and 0.97% did so from South Motors. In 2007, Braman Miami sold a total of 789 new Florida-registered MINIs. Of this number, 66.29% were registered in its MINI PMA; 12.55% were registered in South Motors' MINI PMA; 8.49% were registered in Holman's MINI PMA; 1.27% were registered in Vista's MINI PMA; and 0.89% were registered in Braman West Palm Beach's MINI PMA. In 2007, of the consumers in Braman Miami's MINI PMA purchasing new MINIs, 65.05% did so from Braman Miami; 22.39% did so from South Motors; 6.84% did so from Holman; 3.36% did so from Vista; and 0.75% did so from Braman West Palm Beach. In 2007, South Motors sold a total of 467 new Florida-registered MINIs. Of this number, 49.46% were registered in its MINI PMA; 38.54% were registered in Braman Miami's MINI PMA; 2.36% were registered in Holman's MINI PMA; and 0.64% were registered in Vista's MINI PMA. There were no registrations in Braman West Palm Beach's MINI PMA. In 2007, of the consumers in South Motors' MINI PMA purchasing new MINIs, 62.43% did so from South Motors; 26.76% did so from Braman Miami; 5.14% did so from Holman; 4.32% did so from Vista; and 0.81% did so from Braman West Palm Beach. In 2007, Braman West Palm Beach sold a total of 357 new Florida-registered MINIs. Of this number, 50.14% were registered in its MINI PMA; 12.04% were registered in Vista's MINI PMA; 2.24% were registered in Holman's MINI PMA; 1.68% were registered in Braman Miami's MINI PMA; and 0.84% were registered in South Motors' MINI PMA.. In 2007, of the consumers in Braman West Palm Beach's MINI PMA purchasing new MINIs, 72.47% did so from Braman West Palm Beach; 16.19% did so from Vista; 4.45% did so from Holman; and 2.83% did so from Braman Miami. No purchases were made from South Motors. For purposes of the instant consolidated cases, and solely for the purposes of these cases, BMW NA, through its expert witness, James Anderson, created, as alternatives to the PMAs that BMW NA is contractually obligated to use in its dealings with its dealers, what Mr. Anderson termed, "Areas of Geographic Advantage" (AGAs). An AGA, as described by Mr. Anderson, is a geographic area in which each dealer or dealership location (in those PMAs having more than one dealership location) has a competitive advantage over other dealers or locations of the same line-make due solely to its geographic proximity to customers. Mr. Anderson created AGAs for Holman BMW Fort Lauderdale, Holman BMW Pembroke Pines, Vista BMW Coconut Creek, Vista BMW Pompano Beach, Braman Miami BMW, South Motors BMW, Holman MINI, Vista MINI, Braman Miami MINI, and South Motors MINI. The Holman BMW Fort Lauderdale AGA consists of southeastern Broward County. The Holman BMW Pembroke Pines AGA consists of southwestern Broward County and extends just over the border into northwestern Miami-Dade County. The Vista BMW Coconut Creek AGA consists of northwestern Broward County and extends just over the border into southwestern Palm Beach County. The Vista BMW Pompano Beach AGA consists of northeastern Broward County and extends just over the border into southeastern Palm Beach County. The Vista MINI AGA is very similar to its PMA. The Holman MINI AGA is larger than its PMA, covering almost all of southern Broward County. In 2007, there were 1,326 new BMW passenger cars registered in Holman BMW Fort Lauderdale's AGA, 507 of them sold at Holman BMW Fort Lauderdale, 255 of them sold at Vista BMW Coconut Creek, 181 of them sold at Holman BMW Pembroke Pines, and 141 of them sold at Vista BMW Pompano Beach. In 2007, there were 2,335 new BMW passenger cars registered in Holman BMW Pembroke Pines' AGA, 1,203 of them sold at Holman BMW Pembroke Pines, 312 of them sold at Vista BMW Coconut Creek, 219 of them sold at Holman BMW Fort Lauderdale, and 60 of them sold at Vista BMW Pompano Beach. In 2007, there were 2,297 new BMW passenger cars registered in Vista BMW Coconut Creek's AGA, 1,266 of them sold at Vista BMW Coconut Creek, 174 of them sold at Vista BMW Pompano Beach, 146 of them sold at Holman BMW Fort Lauderdale, and 122 of them sold at Holman BMW Pembroke Pines. In 2007, there were 996 new BMW new passenger cars registered in Vista BMW Pompano Beach's AGA, 399 of them sold at Vista BMW Coconut Creek, 222 of them sold at Vista BMW Pompano Beach, 101 of them sold at Holman BMW Fort Lauderdale, and 22 of them sold at Holman BMW Pembroke Pines. In 2007, there were a total of 1,431 new BMW passenger cars sold at Holman BMW Fort Lauderdale. Of this number, 35.43% were registered in its AGA; 15.30% were registered in Holman BMW Pembroke Pines' AGA; 10.20% were registered in Vista BMW Coconut Creek's AGA; and 7.06% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Fort Lauderdale's AGA purchasing new BMW passenger cars, 38.24% did so from Holman BMW Fort Lauderdale; 19.23% did so from Vista BMW Coconut Creek; 13.65% did so from Holman BMW Pembroke Pines; and 10.63% did so from Vista BMW Pompano Beach. In 2007, there were a total of 1,961 new BMW passenger cars sold at Holman BMW Pembroke Pines. Of this number, 61.35% were registered in its AGA; 9.23% were registered in Holman BMW Fort Lauderdale's AGA; 6.22% were registered in Vista BMW Coconut Creek's AGA; and 1.12% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Pembroke Pines' AGA purchasing new BMW passenger cars, 51.52% did so from Holman BMW Pembroke Pines; 13.36% did so from Vista BMW Coconut Creek; 9.38% did so from Holman BMW Fort Lauderdale; and 2.57% did so from Vista BMW Pompano Beach. In 2007, there were a total of 2,865 new BMW passenger cars sold at Vista BMW Coconut Creek. Of this number, 44.19% were registered in its AGA; 13.93% were registered in Vista BMW Pompano Beach's AGA; 10.89% were registered in Holman BMW Pembroke Pines' AGA; and 8.90% were registered in Holman BMW Fort Lauderdale's AGA. In 2007, of the consumers in Vista BMW Coconut Creek's AGA purchasing new BMW passenger cars, 55.12% did so from Vista BMW Coconut Creek; 7.58% did so from Vista BMW Pompano Beach; 6.36% did so from Holman BMW Fort Lauderdale; and 5.31% did so from Holman BMW Pembroke Pines. In 2007, there were a total of 861 new BMW passenger cars sold at Vista BMW Pompano Beach. Of this number, 25.78% were registered in its AGA; 20.21% were registered in Vista BMW Coconut Creek's AGA; 16.38% were registered in Holman BMW Fort Lauderdale's AGA; and 6.97% were registered in Holman BMW Pembroke Pines' AGA. In 2007, of the consumers in Vista BMW Pompano Beach's AGA purchasing new BMW passenger cars, 40.06% did so from Vista BMW Coconut Creek; 22.29% did so from Vista BMW Pompano Beach; 10.14% did so from Holman BMW Fort Lauderdale; and 2.21% did so from Holman BMW Pembroke Pines. In 2007, there were 291 new BMW light trucks registered in Holman BMW Fort Lauderdale's AGA, 106 of them sold at Holman BMW Fort Lauderdale, 62 of them sold at Vista BMW Coconut Creek, 42 of them sold at Holman BMW Pembroke Pines, and 25 of them sold at Vista BMW Pompano Beach. In 2007, there were 540 new BMW light trucks registered in Holman BMW Pembroke Pines' AGA, 288 of them sold at Holman BMW Pembroke Pines, 77 of them sold at Vista BMW Coconut Creek, 50 of them sold at Holman BMW Fort Lauderdale, and 15 of them sold at Vista BMW Pompano Beach. In 2007, there were 470 new BMW light trucks registered in Vista BMW Coconut Creek's AGA, 291 of them sold at Vista BMW Coconut Creek, 31 of them sold at Holman BMW Fort Lauderdale, 27 of them sold at Vista BMW Pompano Beach, and 19 of them sold at Holman BMW Pembroke Pines. In 2007, there were 185 new BMW light trucks registered in Vista BMW Pompano Beach's AGA, 80 of them sold at Vista BMW Coconut Creek, 29 of them sold at Vista BMW Pompano Beach, 26 of them sold at Holman BMW Fort Lauderdale, and 4 of them sold at Holman BMW Pembroke Pines. In 2007, there were a total of 317 new BMW light trucks sold at Holman BMW Fort Lauderdale. Of this number, 33.44% were registered in its AGA; 15.77% were registered in Holman BMW Pembroke Pines' AGA; 9.78% were registered in Vista BMW Coconut Creek's AGA; and 8.20% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Fort Lauderdale's AGA purchasing new BMW light trucks, 36.43% did so from Holman BMW Fort Lauderdale; 21.31% did so from Vista BMW Coconut Creek; 14.43% did so from Holman BMW Pembroke Pines; and 8.59% did so from Vista BMW Pompano Beach. In 2007, there were a total of 455 new BMW light trucks sold at Holman BMW Pembroke Pines. Of this number, 63.30% were registered in its AGA; 9.23% were registered in Holman BMW Fort Lauderdale's AGA; 4.18% were registered in Vista BMW Coconut Creek's AGA; and 0.88% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Pembroke Pines' AGA purchasing new BMW light trucks, 53.33% did so from Holman BMW Pembroke Pines; 14.26% did so from Vista BMW Coconut Creek; 9.26% did so from Holman BMW Fort Lauderdale; and 2.78% did so from Vista BMW Pompano Beach. In 2007, there were a total of 678 new BMW light trucks sold at Vista BMW Coconut Creek. Of this number, 42.92% were registered in its AGA; 11.80% were registered in Vista BMW Pompano Beach's AGA; 11.36% were registered in Holman BMW Pembroke Pines' AGA; and 9.14% were registered in Holman BMW Fort Lauderdale's AGA. In 2007, of the consumers in Vista BMW Coconut Creek's AGA purchasing new BMW light trucks, 61.91% did so from Vista BMW Coconut Creek; 6.60% did so from Holman BMW Fort Lauderdale; 5.74% did so from Vista BMW Pompano Beach; and 4.04% did so from Holman BMW Pembroke Pines. In 2007, there were a total of 146 new BMW light trucks sold at Vista BMW Pompano Beach. Of this number, 19.86% were registered in its AGA; 18.49% were registered in Vista BMW Coconut Creek's AGA; 17.12% were registered in Holman BMW Fort Lauderdale's AGA; and 10.27% were registered in Holman BMW Pembroke Pines' AGA. In 2007, of the consumers in Vista BMW Pompano Beach's AGA purchasing new BMW light trucks, 43.24% did so from Vista BMW Coconut Creek; 15.68% did so from Vista BMW Pompano Beach; 14.05% did so from Holman BMW Fort Lauderdale; and 2.16% did so from Holman BMW Pembroke Pines. Holman's and Vista's inability to obtain vehicles hampered their sales performances in 2007 (as well as in 2005 and 2006). They both could have sold more BMW Vehicles and MINIs during this period had BMW NA supplied them with more product. Subsequent to 2007, with deteriorating macro-economic conditions and slackening nationwide demand, supply constraints affecting Holman and Vista have dissipated, at least with respect to BMW Vehicles. The United States economy has "officially" been in recession since February 2008. There has been a "substantial contraction of economic activity since then," with the rate accelerating following the Lehman Brothers bankruptcy on September 15, 2008, which resulted in "great distress [to] the financial markets" and the "worst financial panic this country has seen since the Great Depression." Statewide, there has been the "sharpest fall in housing starts in our state's history," a record number of foreclosures, and "a very strong deceleration in population growth." Broward County has not been spared from the economic slowdown, as reflected by the fact that it has lost population and the growth in the number of those employed in the county has almost come to a halt after 16 years of impressive growth. These less than favorable market conditions resulted in fewer BMW Vehicles being sold in the United States (and by Holman and Vista) the first nine months of 2008 compared to the same period in 2007.7 In fact, in 2008, Holman even "gave cars back to BMW [NA]." Responding to these conditions, BMW NA, in or around August 2008, announced production cuts of BMW Vehicles for the United States market of approximately 12%. Production volume for 2009 is anticipated to be about the same as it was for 2008. There no doubt will be an economic recovery, but there is insufficient record evidence upon which to base a finding as to when this recovery will occur, how strong it will be, and whether it will result in the market demand for BMW Vehicles returning to pre-2008 levels. Nationally, MINI sales have bucked the industry trend and increased over the first nine months of 2008, compared to the same period the previous year, with "[v]irtually all dealers asking for more MINIs" and the "factory . . . operating very close to capacity" to keep up with demand in the United States. BMW NA is working with its existing MINI dealers in the United States to enable them "to continue to grow," and it is also "selectively adding new dealers in white [unrepresented] spots around the country where the drive to a MINI dealer would be far too far for someone to consider." Market penetration is a measure of the sales performance of a line-make in a particular geographic area relative to that of competing line-makes. To determine whether a line-make's market penetration in an area has met reasonable expectations, it is necessary to select a reasonable market penetration standard (adjusted using segmentation analysis) against which that performance can be gauged. Comparing the number of actual registrations in the area to the number of expected registrations based on the selected standard yields a registration effectiveness rating (RER), expressed as a percentage. An RER of 100% or above signifies that reasonable expectations in terms of market penetration have been met or exceeded. An RER of less than 100% means that market penetration has been below reasonable expectations. The parties differ as to the market penetration standards that should be used in the instant consolidated cases. With respect BMW passenger cars and light trucks, BMW NA and Holman advocate application of a standard consisting of the average market penetration (as adjusted) of these line-makes in the Braman Miami BMW and South Motors BMW AGAs combined (Miami BMW Standard), while Vista contends that the average market penetration (as adjusted) achieved in Florida as a whole (Florida BMW Standard) should be used. In 2007, only two of the BMW Vehicle PMAs in Florida (those of Sandy Sansing BMW in Pensacola8 and Braman Miami BMW), and less than ten percent of the BMW Vehicle PMAs in the United States, had an RER of 100% or above applying the Miami BMW Standard. The Florida BMW Standard is a lower standard than the Miami BMW Standard; however, the average market penetration of BMW Vehicles has historically been higher in Florida than it has been regionally or nationally. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the area covering Holman's BMW Vehicle PMA, Vista's BMW Vehicle PMA, and Braman Miami's BMW Vehicle PMA combined, the RERs for new BMW passenger cars were 108.73%, 106.44%, and 110.64%, respectively, and the RERs for new BMW light trucks were 120.55%, 120.08%, and 120.80%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the area covering Holman's BMW Vehicle PMA and Vista's BMW Vehicle PMA combined, the RERs for new BMW passenger cars were 104.16%, 103.73%, and 105.58%, respectively, and the RERs for new BMW light trucks were 106.97%, 111.01%, and 111.61%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the area covering Holman's BMW Vehicle PMA and Vista's BMW Vehicle PMA combined, the RERs for new BMW passenger cars were 88.9%, 93.9%, 90.4%, and 96.7%, respectively, and the RERs for new BMW light trucks were 77%, 89.5%, 90.4%, and 93.7%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in Holman's BMW Vehicle PMA, the RERs for new BMW passenger cars were 113.15%, 110.20%, and 111.26%, respectively, and the RERs for new BMW light trucks were 111.59%, 114.85%, and 117.15%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in Holman's BMW Vehicle PMA, the RERs for new BMW passenger cars were 96.7%, 99.7%, 95.3%, and 101.1%, respectively, and the RERs for new BMW light trucks were 80.4%, 92.6%, 95%, and 99.4%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in Vista's BMW Vehicle PMA, the RERs for new BMW passenger cars were 95.59%, 97.41%, and 100%, respectively, and the RERs for new BMW light trucks were 101.87%, 106.74%, and 105.33%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in Vista's BMW Vehicle PMA, the RERs for new BMW passenger cars were 81.5%, 88.3%, 85.5%, and 92.2%, respectively, and the RERs for new BMW light trucks were 73.4%, 86%, 85.3%, and 87%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Holman BMW Fort Lauderdale AGA, the RERs for new BMW passenger cars were 110.26%, 110.61%, and 112.65%, respectively, and the RERs for new BMW light trucks were 109.43%, 119.44%, and 115.08%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman BMW Fort Lauderdale AGA, the RERs for new BMW passenger cars were 94.7%, 74%, 96.7%, and 103.5%, respectively, and the RERs for new BMW light trucks were 78.8%, 96.2%, 93.2%, and 113.2%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Holman BMW Pembroke Pines AGA, the RERs for new BMW passenger cars were 118.19%, 112.48%, and 112.15%, respectively, and the RERs for new BMW light trucks were 112.67%, 115.26%, and 116.41%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman BMW Pembroke Pines AGA, the RERs for new BMW passenger cars were 100.8%, 101.7%, 95.9%, and 101.1%, respectively, and the RERs for new BMW light trucks were 81.1%, 93%, 94.4%, and 90.3%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Vista BMW Coconut Creek AGA, the RERs for new BMW passenger cars were 92.66%, 94.39%, and 95.95%, respectively, and the RERs for new BMW light trucks were 102.04%, 104.21%, and 105.62%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista BMW Coconut Creek AGA, the RERs for new BMW passenger cars were 79%, 85.4%, 81.9%, and 86.1%, respectively, and the RERs for new BMW light trucks were 73.5%, 84.2%, 85.6%, and 86.9%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Vista BMW Pompano Beach AGA, the RERs for new BMW passenger cars were 97.48%, 104.28%, and 107.56%, respectively, and the RERs for new BMW light trucks were 100%, 114.88%, and 105.11%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista BMW Pompano Beach AGA, the RERs for new BMW passenger cars were 83.2%, 94.6%, 92.3%, and 102.7%, respectively, and the RERs for new BMW light trucks were 72.1%, 92.8%, 85.3%, and 88%, respectively. The Florida BMW Standard is a reasonable market penetration standard, in contrast to the unreasonably high Miami BMW Standard; and therefore it, not the Miami BMW Standard, should be used to determine the pertinent "reasonably expected market penetration." With respect MINI, BMW NA and Holman urge use of a market penetration standard reflecting MINI's average market penetration (as adjusted) in the Braman Miami MINI and South Motors MINI AGAs combined (Miami MINI Standard). Vista, on the other hand, asserts that the average market penetration attained by MINI in those portions of Florida where there is MINI representation (as adjusted) should be the benchmark (Florida Represented MINI Standard). In 2007, only one MINI PMA in Florida (Braman Miami's MINI PMA) and 16 of the 83 MINI PMAs in the United States had an RER of 100% or above applying the Miami MINI Standard. The Florida Represented MINI Standard is a lower standard than the Miami BMW Standard; however, the average market penetration of MINI has historically been higher in represented areas of Florida than it has been regionally or nationally. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the area covering Holman's MINI PMA, Vista's MINI PMA, Braman Miami's MINI PMA, and the unrepresented portion of southwestern Broward County combined, the RERs for new MINIs were 111.83%, 111.76%, and 107.22%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the area covering Holman's MINI PMA and Vista's MINI PMA combined, the RERs for new MINIs were 97.12%, 91.67%, and 85.96%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the area covering Holman's MINI PMA and Vista's MINI PMA combined, the RERs for new MINIs were 76.8%, 68.1%, 65.4%, and 71.2%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the area covering the Holman MINI AGA and Vista MINI AGA combined, the RERs for new MINIs were 96.01%, 88.79%, and 82.34%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the area covering the Holman MINI AGA and Vista MINI AGA combined, the RERs for new MINIs were 75.9%, 66.1%, 62.9%, and 70.9%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Holman MINI PMA, the RERs for new MINIs were 104.89%, 97.69%, and 100.87%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman MINI PMA, the RERs for new MINIs were 83.9%, 73%, 77.4%, and 79.9%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Holman MINI AGA, the RERs for new MINIs were 102.19%, 93.50%, and 92.21%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman MINI AGA, the RERs for new MINIs were 81%, 69.9%, 71%, and 77.8%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Vista MINI PMA, the RERs for new MINIs were 91.47%, 87.36%, and 73.40%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista MINI PMA, the RERs for new MINIs were 71.7%, 64.6%, 55.9%, and 63.9%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Vista MINI AGA, the RERs for new MINIs were 90.39%, 84.78%, and 72.24%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista MINI AGA, the RERs for new MINIs were 70.9%, 62.7%, 55%, and 63.6%, respectively. The Florida Represented MINI Standard is a reasonable market penetration standard, in contrast to the unreasonably high Miami MINI Standard; and therefore it, not the Miami MINI Standard, should be used to determine pertinent "reasonably expected market penetration." BMW NA believes that the market penetration of new BMW Vehicles and new MINIs in the areas that it has identified as the relevant "communit[ies] or territor[ies]" in these cases can be improved if Holman BMW Fort Lauderdale and Holman MINI are relocated to the Proposed Location. Vista (whose Vista BMW Coconut Creek, Vista BMW Pompano Beach, and Vista MINI dealership locations are within a 12.5 mile radius of the Proposed Location) has protested these proposed relocations, and these protests are the subject of the instant cases. BMW NA and Holman are dissatisfied with the sales and service facilities at Holman BMW Fort Lauderdale's and Holman MINI's present locations. For each of these dealerships, they would like to have facilities that are larger, and sales and service operations that are adjacent to, not distant from, each other. They also want to avoid having to make MINI customers (who often stay at the dealership and watch their vehicles being serviced) share service facilities (as they do now) with BMW Vehicle customers (with whom they generally do not share similar interests). BMW NA has established minimum standards that the facilities of its BMW Vehicle and MINI dealers must meet. These standards deal with such things as the "size of [the] showroom," the "size of the new car display area," and the "number of service stalls in the service department," and they are "based on factors such as market potential, units in operation, and potential growth." In PMAs with two dealership locations, in determining whether the dealer has facilities that are in compliance with minimum standards, the facilities at both locations are "combined" and looked at together. Notwithstanding BMW NA's and Holman's dissatisfaction with the existing facilities at the Holman BMW Fort Lauderdale and Holman MINI dealership locations, Holman's BMW Vehicle and MINI facilities in Broward County meet the minimum standards required by BMW NA. Despite the facility-related operational challenges it faces, Holman's CSIs for its BMW Vehicle and MINI franchises are at or slightly above average, with the CSI for Holman BMW Fort Lauderdale being comparable to that for Holman BMW Pembroke Pines. Moreover, Holman is one of the highest volume BMW Vehicle dealers in the United States, and with respect to its new MINI sales, in 2007, these sales exceeded Holman's 400 unit SPG and were greater, by 38, than the new MINI sales of Holman's Broward County intrabrand competitor, Vista, which operated out of newer and more spacious facilities. According to Daniel Villani, the general manager of Holman BMW Fort Lauderdale, selling 175 new BMW Vehicles per month (2,100 per year) "pushes right up against" the limit of "what th[at] facility can handle" to "maintain an appropriate sales experience for the customers." In 2007, Holman BMW Fort Lauderdale sold a total of "a little less" than 1,800 new BMW Vehicles (1,748 of which were registered in Florida). Its sales declined in 2008. Holman made an extensive, good faith, but unsuccessful, effort over several years to find a reasonable and feasible way to have the sales and service facilities it wants for Holman BMW Fort Lauderdale and Holman MINI without having to relocate these dealerships outside a two-mile radius of their present locations. Holman purchased the Proposed Location (for $27 million) only after having engaged in this exhaustive search. The Proposed Location is a 10-acre site that is large enough to accommodate the facilities that Holman wants to construct for Holman BMW Fort Lauderdale and Holman MINI. These facilities would be considerably larger and more modern than those that these dealerships now have, potentially making consumers' shopping and service experiences at the dealerships more pleasant and enjoyable and improving the working conditions of the dealerships' employees. Construction of these new facilities would cost, according to Holman's current plans, between $20 and $25 million. There is no reason to believe that, if the Department approved the proposed relocations of Holman BMW Fort Lauderdale and Holman MINI to the Proposed Location (which is already zoned appropriately "for a car dealership"), Holman would not carry through with its construction plans. No evidence was presented of any obstacles, financial or otherwise, that would prevent or deter it from doing so. Accordingly, in assessing the potential impact of these proposed relocations, it is reasonable to assume that, if the proposed relocations are approved by the Department, the planned facilities will be built at the Proposed Location. Holman will be allocated more BMW Vehicles and MINIs to sell at these larger, new facilities inasmuch as BMW NA has agreed of increase Holman's SPGs if Holman BMW Fort Lauderdale and Holman MINI are relocated, as proposed. The Proposed Location is situated at the intersection of U.S. Route 1/Federal Highway and East Sunrise Boulevard in Fort Lauderdale, which, in 2007, had an average daily traffic count of 63,500 vehicles, 15,500 more vehicles than passed by the existing sales facilities of Holman BMW Fort Lauderdale and Holman MINI (Existing Sales Facilities). More vehicles going to and coming from downtown Fort Lauderdale, however, travel past the Existing Sales Facilities than the Proposed Location. To state the obvious, for these motorists, the Existing Sales Facilities would be more convenient, whereas the Proposed Location would be more convenient for those who drive by it every day. The Proposed Location is in an area that the Holman organization knows well as a result of its years of experience operating Honda, Rolls-Royce, and Bentley dealerships a short distance away. There has been new development in the immediate vicinity of the Proposed Location. A new Home Depot was recently constructed and condominium apartment buildings are under construction. To the south and west is Holiday Park, next to which is an established residential neighborhood. The Proposed Location is 2.23 miles (by air) north of the Existing Sales Facilities (2.5 miles, if driving). Moving Holman BMW Fort Lauderdale and Holman MINI to this location would situate them closer to their Vista intrabrand competitors to the north and further away from their Braman Miami intrabrand competitors to the south. The relocated dealerships would be 7.3 miles (by air) from Vista BMW Pompano Beach (8.2 miles, if driving); 10 miles (by air) from Vista BMW Coconut Creek and Vista MINI (12.4 miles, if driving); and 23.8 miles from Braman Miami BMW and Braman Miami MINI (24.8 miles, if driving), leaving consumers in northeastern Miami-Dade County and southeastern Broward County with slightly farther to travel to comparison shop for BMW and MINI products. The proposed relocations would also result in slight increases in the average distances BMW Vehicle and MINI customers in Holman's BMW Vehicle and MINI PMAs would have to travel to reach the nearest BMW or MINI dealership location. In short, the Proposed Location "is not optimal" and is less convenient "from a distance perspective" than the Existing Sales Facilities. The proposed relocation of Holman BMW Fort Lauderdale would result in Vista's BMW Vehicle dealerships losing "geographic advantage" to Holman BMW Fort Lauderdale in three zip codes (one zip code in which Vista BMW Coconut Creek currently has geographic advantage and, in 2007, 18 new BMW passenger vehicles and four new BMW light trucks sold by Vista BMW Coconut Creek were registered; and two zip codes in which Vista BMW Pompano Beach currently has geographic advantage and, in 2007, a total of 23 new BMW passenger vehicles and three new BMW light trucks sold by Vista BMW Pompano Beach were registered). The proposed relocation of Holman MINI would result in Vista MINI losing "geographic advantage" to Holman MINI in one zip code. In 2007, Vista MINI did not sell any MINIs that were registered in this zip code in which it would losing "geographic advantage." Any loss of "geographic advantage" to Holman would make it more difficult, but not impossible, for Vista to compete effectively against Holman. Vista is certainly capable of capturing sales in zip codes in which another dealer has "geographic advantage." Vista would be further disadvantaged as a result of the proposed relocations by having to compete (with respect to both BMW Vehicle and MINI sales and service) against Holman dealerships (Holman BMW Fort Lauderdale and Holman MINI) which would have improved facilities with greater capacity, making these dealerships more formidable competitors than they would be if the status quo were maintained. The impact of the proposed relocations on Vista, if Vista were to make no changes in its operations or facilities, would likely be negative (in terms of lost sales and service business), but the evidentiary record is insufficient for the undersigned, with any degree of confidence, to quantify, in dollars, what that negative impact would be. Vista dealership operations are "extremely profitable," and the company has a "strong" balance sheet, enabling it to withstand the changes in its competitive position of the type that the proposed relocations might bring about. It is possible that Vista could make changes in its operations (such as lowering prices) or to its facilities (such as following through with its "additional plans for expansion and renovation" of Vista BMW Pompano Beach) that would overcome the disadvantages resulting from the proposed relocations and help it to maintain its competitive position. Making these changes, however, could adversely effect Vista's bottom line. Because of the increase in SPGs Holman has been promised if it relocates its Holman BMW Fort Lauderdale and Holman MINI dealerships, Holman would gain allocation and have more BMW Vehicles and MINIs to sell if these proposed relocations were approved. This would result, were market demand to return to pre-2008 levels, in more BMW Vehicles and MINIs being sold in areas served by these Holman dealerships than would otherwise be the case, thereby benefiting BMW NA (a goal BMW NA would also be able to accomplish by simply increasing allocations to its dealers serving these areas to meet demand, without requiring any of them to relocate and build new facilities to receive these increased allocations). The evidentiary record is devoid of any evidence that BMW NA attempted to coerce Vista or any other existing dealer into consenting to the proposed relocations. Neither does the evidentiary record contain evidence that Vista is not in substantial compliance with its franchise agreements with BMW NA.9
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles issue a final order denying approval of the proposed relocations of Holman BMW Fort Lauderdale and Holman MINI to the Proposed Location inasmuch as BMW NA has failed to meet its burden of proving a lack of "adequate representation" of the BMW passenger car, BMW light truck, and MINI line-makes in the Relevant Com/Ters. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2009.
The Issue Whether Florida Administrative Code Rule 15C-7.005 is a invalid exercise of legislatively delegated authority in violation of Section 120.52(8), Florida Statutes.
Findings Of Fact The Department is an agency of the State of Florida. The Department adopted Florida Administrative Code Rule 15C- 17.005, which became effective March 3, 1996. The Rule has not been amended since its initial adoption. JM Lexus and Lexus of Orlando are both licensed franchised motor vehicle dealers in the State of Florida. Lexus of Orlando has filed a complaint in the Ninth Circuit Court, Orange County, Florida, alleging, that JM Lexus violated Rule 15C-7.005 in connection with the alleged sale for resale of new Lexus vehicles to non-Lexus dealerships. FADA and SFADA are trade associations whose members are licensed motor vehicle dealers in the State of Florida and are substantially affected by the rule. Florida Administrative Code Rule 15C-7.005 provides the following: 15C-7.005 Unauthorized Additional Motor Vehicle Dealerships - Unauthorized Supplemental Dealership Locations. An additional motor vehicle dealership, as contemplated by Sections 320.27(5) and 320.642, Florida Statutes, shall be deemed to be established when motor vehicles are regularly and repeatedly sold at a specific location in the State of Florida for retail purposes if the motor vehicle dealer transacting such sales: Is not located in this state, or Is not a licensed motor vehicle franchised for the specific line-make, or Is a licensed motor vehicle dealer franchised for such line-make, but such sales are transacted at a location other than that permitted by the license issued to the dealer by the Department. Such sales are not subject to this rule, however, when a motor vehicle dealer occasionally and temporarily (not to exceed seven days) sells motor vehicles from a location other than the motor vehicle dealer's licensed location provided such sales occur within the motor vehicle dealer's area of sales responsibility (except a motor vehicle dealer who may be deemed a licensee under this rule). For the purpose of this rule, a sale for retail purposes is the first sale of the motor vehicle to a retail customer for private use, or the first sale of the motor vehicle for commercial use, such as leasing, if such commercial motor vehicle is not resold for a period of at least ninety days. Furthermore, this rule shall apply regardless of whether the titles issued, either in this or another state, pursuant to such sales are designated as "new" or "used." An additional motor vehicle dealership established in this fashion is unlawful and in violation of Section 230.642, Florida Statutes. A licensed motor vehicle dealer of the same line-make, as the vehicle being sold in violation of this rule, may notify the Department of such violation. The notice shall include motor vehicle identification numbers or other data sufficient to identify the identity of the selling dealer and initial retail purchaser of the motor vehicles involved. Within 30 days from receipt of a request from the Department containing motor vehicle identification numbers or other data sufficient to identify the motor vehicles involved, the licensee shall provide to the Department, to the extent such information is maintained by the licensee, copies of documents showing the dealer to whom each vehicle was originally delivered, any inter- dealer transfer and the initial retail purchaser as reported to the licensee. Upon a showing of good cause, the Department may grant the licensee additional time to provide the information requested under this paragraph. Examples of good cause include, but are not limited to, request for information on more than 100 vehicles, information on vehicle sales which accrued more than 2 years prior to the date of the request, and information which is no longer maintained in the licensee's current electronic data base. Within forty days of receipt of notice from the motor vehicle dealer, the Department shall make a determination of probable cause and if it determines that there is probable cause that a violation of this rule has occurred, the Department shall mail, by certified mail, return receipt requested, to the line-maker motor vehicle dealership or dealerships involved a letter containing substantially the following statement: Pursuant to Rule 15C-7.005, F.A.C., the undersigned has received a notice that you have allegedly supplied a substantial number of vehicles on a regular and repeated basis, which were sold at a location in the State of Florida, at which you are not franchised or licensed to sell motor vehicles. If these allegations are true, your conduct may violate Florida law including, but not limited to, the above-mentioned rule, Sections 320.61 and 320.642, Florida Statutes. It may also cause you to be deemed a licensee, importer and/or distributor pursuant to Florida law and subject you to disciplinary action by the Florida Department of Highway Safety and Motor Vehicles, including fines and/or suspension of your Florida Dealer license, if applicable. The Division of Motor Vehicles is putting you on notice, if you are conducting such activity, that you cease and desist such activity immediately. If you fail to do so, this agency will take appropriate action. If the dealer supplying vehicles in violation of subsections (1) and (4) is not located in the State of Florida, the Department shall notify such dealer in writing that they may be operating as a distributor of motor vehicles without proper authorization in violation of Section 320.61, Florida Statutes, and may be violating Section 320.642, Florida Statutes. A motor vehicle dealer, whether located in Florida or not, which supplies a substantial number of vehicles on a regular and repeated basis which are sold in the manner set forth in subsection (1), shall be deemed to have established a supplemental location in violation of Section 320.27(5), Florida Statutes, and Rule 15C-7.005, F.A.C. Furthermore, a motor vehicle dealer which supplies vehicles in this manner shall be deemed to have conducted business within the State of Florida and acted as a "licensee," "importer" and "distributor" as contemplated by Section 320.60, Florida Statutes, and thus such activity shall constitute a violation of Sections 320.61 and 320.642, Florida Statutes. Furthermore, this paragraph neither imposes any liability on a licensee nor creates a cause of action by any person against the licensee, except a motor vehicle dealer who may be deemed to have acted as a licensee under this paragraph. Furthermore, no provision of this entire rule creates a private cause of action by any person against a licensee, other than a dealer who is deemed a licensee pursuant to the provisions of subsection (4) of this rule, for civil damages; provided, however, if a licensee fails to comply with the requirements of paragraph (3)(a) of this rule, the Department may bring an action for injunctive relief to require a licensee to provide the information required. No other action can be brought against the licensee pursuant to this entire rule other than a dealer who is deemed to be a licensee pursuant to the provisions of subsection (4) of this rule. Any franchised motor vehicle dealer who can demonstrate that a violation of, or failure to comply with, the provisions of subsection (4) of this rule by a motor vehicle dealer, or a motor vehicle dealer which pursuant to subsection (4) shall be deemed to have conducted business and acted as a licensee, importer, and distributor, has adversely affected or caused pecuniary loss to that franchised motor vehicle dealer, shall be entitled to pursue all remedies against such dealers, including, but not limited to the remedies, procedures, and rights of recovery available under Sections 320.695 and 320.697, Florida Statutes. Rule 15C-7.005 identifies as specific authority Section 320.011, Florida Statutes. Section 320.011 states: The department shall administer and enforce the provisions of this chapter and has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement them. The Rule lists as "Law Implemented" Sections 320.27 and Sections 320.60-.70, Florida Statutes. Sections 320.60 through 320.70, Florida Statutes, are commonly referred to as the Motor Dealers Act. Section 320.27(1)(c), Florida Statutes, provides the following definitions for a motor vehicle dealer and a franchised motor vehicle dealer: (c) "Motor vehicle dealer" means any person engaged in the business of buying, selling, or dealing in motor vehicles or offering or displaying motor vehicles for sale at wholesale or retail, or who may service and repair motor vehicles pursuant to an agreement as defined in s. 320.60(1). Any person who buys, sells, or deals in three or more motor vehicles in any 12-month period or who offers or displays for sale three or more motor vehicles in any 12-month period shall be prima facie presumed to be engaged in such business. The terms "selling" and "sale" include lease-purchase transactions. . . The transfer of a motor vehicle by a dealer not meeting these qualifications shall be titled as a used vehicle. The classifications of motor vehicle dealers are defined as follows: 1. "Franchised motor vehicle dealer" means any person who engages in the business of repairing, servicing, buying, selling, or dealing in motor vehicles pursuant to an agreement as defined in s. 320.60(1). Subsection 320.27(2), Florida Statutes, requires motor vehicle dealers to be licensed. Subsection (5) of this same provision requires that "any person licensed hereunder shall obtain a supplemental license for each permanent additional place or places of business not contiguous to the premises for which the original license is issued." Section 320.27(9) authorizes the Department to discipline motor vehicle dealers for a variety of enumerated offenses. Among those enumerated offenses is the willful failure to comply with any administrative rule adopted by the department or the provisions of Section 320.131(8), Florida Statutes. § 320.27(9)(a)16., Fla. Stat. Section 320.60, Florida Statutes, provides definitions for terms used in Sections 320.61 through 320.70, Florida Statutes. Pertinent to this case are the following: "Agreement" or "franchise agreement" means a contract, franchise, new motor vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a manufacturer, factory branch, distributor, or importer, and a motor vehicle dealer, pursuant to which the motor vehicle dealer is authorized to transact business pertaining to motor vehicles of a particular line-make. * * * (5) "Distributor" means a person, resident or nonresident, who, in whole or in part, sells or distributes motor vehicles to motor vehicle dealers or who maintains distributor representatives. * * * "Importer" means any person who imports vehicles from a foreign country into the United States or into this state for the purpose of sale or lease. "Licensee" means any person licensed or required to be licensed under s. 320.61. * * * (10) "Motor vehicle" means any new automobile, motorcycle, or truck, including all trucks, regardless of weight . . . the equitable or legal title to which has never been transferred by a manufacturer, distributor, importer, or dealer to an ultimate purchaser; (11)(a) "Motor vehicle dealer" means any person, firm, company, corporation, or other entity, who, Is licensed pursuant to s. 320.27 as a "franchised motor vehicle dealer" and, for commission, money, or other things of value, repairs or services motor vehicles or used motor vehicles pursuant to an agreement as defined in subsection (1), or Who sells, exchanges, buys, leases or rents, or offers, or attempts to negotiate a sale or exchange of any interest in, motor vehicles, or Who is engaged wholly or in part in the business of selling motor vehicles, whether or not such motor vehicles are owned by such person, firm, company, or corporation. * * * (14) "Line-make vehicles" are those motor vehicles which are offered for sale, lease, or distribution under a common name, trademark, service mark, or brand name of the manufacturer of same. Section 320.61, Florida Statutes, requires all manufacturers, factory branches, distributors or importers to be licensed. Section 320.63, Florida Statutes, describes the application process for obtaining licensure for manufacturers, factory branches, distributors or importers. The section authorizes the Department to require certain enumerated information as well as "any other pertinent matter commensurate with the safeguarding of the public interest which the department, by rule, prescribes." § 320.63(7), Fla. Stat. Section 320.64, Florida Statutes, provides in pertinent part: 320.64 Denial, suspension, or revocation of license; grounds.--A license of a licensee under s. 320.61 may be denied, suspended, or revoked within the entire state or at any specific location or locations within the state at which the applicant or licensee engages or proposes to engage in business, upon proof that the section was violated with sufficient frequency to establish a pattern of wrongdoing, and a licensee or applicant shall be liable for claims and remedies provided in ss. 320.695 and 320.697 for any violation of any of the following provisions. A licensee is prohibited from committing the following acts: * * * (3) The applicant or licensee willfully has failed to comply with significant provisions of ss. 320.60-320.70 or with any lawful rule or regulation adopted or promulgated by the department. * * * A motor vehicle dealer who can demonstrate that a violation of, or failure to comply with, any of the preceding provisions by an applicant or licensee will or can adversely and pecuniarily affect the complaining dealer, shall be entitled to pursue all of the remedies, procedures, and rights of recovery available under ss. 320.695 and 320.697. Section 320.642, Florida Statutes, provides the process for a licensee to establish additional motor vehicle dealerships or to relocate existing dealerships to a location where the same line-make vehicle is presently represented by a franchised motor vehicle dealer or dealers. Section 320.642, does not, by its terms, authorize rulemaking. Section 320.69, Florida Statutes, states in its entirety that "the department has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this law." Section 320.695, Florida Statutes, which contains no additional grant of rulemaking authority, provides: In addition to the remedies provided in this chapter, and notwithstanding the existence of any adequate remedy at law, the department, or any motor vehicle dealer in the name of the department and state and for the use and benefit of the motor vehicle dealer, is authorized to make application to any circuit court of the state for the grant, upon a hearing and for cause shown, of a temporary or permanent injunction, or both, restraining any person from acting as a licensee under the terms of ss. 320.60-320.70 without being properly licensed hereunder, or from violating or continuing to violate any of the provisions of ss. 320.60-320.70, or from failing or refusing to comply with the requirements of this law or any rule or regulation adopted hereunder. Such injunction shall be issued without bond. A single act in violation of the provisions of ss. 320.60-320.70 shall be sufficient to authorize the issuance of an injunction. However, this statutory remedy shall not be applicable to any motor vehicle dealer after final determination by the department under s. 320.641(3). Section 320.697, Florida Statutes, which also contains no additional grant of rulemaking authority, provides: Civil damages.--Any person who has suffered pecuniary loss or who has been otherwise adversely affected because of a violation by a licensee of ss. 320.60-320.70, notwithstanding the existence of any other remedies under ss. 320.60-320.70, has a cause of action against the licensee for damages and may recover damages therefor in any court of competent jurisdiction in an amount equal to 3 times the pecuniary loss, together with costs and a reasonable attorney's fee to be assessed by the court. Upon a prima facie showing by the person bringing the action that such a violation by the licensee has occurred, the burden of proof shall then be upon the licensee to prove that such violation or unfair practice did not occur.
The Issue Whether a proposed transfer of a Sterling truck dealership from Lynch-Davidson Motors to Tom Nehl GMC Truck Co., d/b/a Tom Nehl Truck Co., and Steven N. Bacalis, falls within the ambit of either Section 320.643(1), Florida Statutes (2000), or Section 320.643(2)(a) (2000), or Section 320.644 (2000), or whether the file should be returned to the Department of Highway Safety and Motor Vehicles with a recommendation that the Verified Complaint be dismissed because there is no extant case or controversy pursuant to Sections 320.61 through 320.70, Florida Statutes(2000), or Chapter 120, Florida Statutes (2000).
Findings Of Fact On April 8, 2003, Lynch entered into an agreement (Agreement) with Tom Nehl GMC Truck Co., d/b/a Tom Nehl Truck Co., and Steven N. Bacalis (Nehl), whereby Lynch would sell the assets of its Sterling truck dealership, to Nehl. The Agreement provided for the transfer to Nehl of the right to sell Sterling trucks in accordance with a January 1, 2001, Dealer Agreement, between Sterling and Lynch. The Agreement further stated that the sales lot would be moved from its current location to another location. It also provided for the transfer of executive management to Nehl. It further recited, at paragraphs 5.2.3 and 5.3.3, that execution was predicated on the approval of the sale by Sterling. On July 22, 2003, a Verified Complaint was filed by Sterling, with the Florida Department of Highway Safety and Motor Vehicles, which contested the transfer and asserted that Sections 320.643 and 320.644, did not apply to the Agreement. Section 320.643(1), states generally that a approval of a transfer of assets may not be unreasonably withheld by a licensee, and Section 320.643(2)(b) states generally that a transfer of an equity interest may not be unreasonably withheld. Section 320.644 states generally that a transfer of executive management control may not be unreasonably withheld. On or about July 21, 2003, Sterling also provided Lynch and Nehl a letter informing them that Sterling rejected the Agreement. In a letter dated August 13, 2003, Lynch notified Nehl's counsel that because Sterling objected to the Agreement of April 8, 2003, the Agreement failed under its own terms, pursuant to paragraph 5.3.3 of the Agreement. A Motion to Dismiss as Moot was filed by Lynch and a Motion for a Recommended Order was filed by Sterling. Various supporting documents were also filed. At a hearing on August 28, 2003, in Tallahassee, Florida, the parties agreed that on or about August 13, 2003, or at a time earlier, the Agreement became inoperative.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which dismisses the Verified Complaint of Petitioner. DONE AND ENTERED this 30th day of September, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 30th day of September, 2003. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Dean Bunch, Esquire Sutherland, Asbill & Brennan, LLP 2282 Killearn Center Boulevard Tallahassee, Florida 32309-3576 Walter E. Forehand, Esquire Lewis, Longman & Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32301 J. Martin Hayes, Esquire Myers & Fuller 402 Office Plaza Drive Tallahassee, Florida 32301 Fred O. Dickinson, III, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue Whether Petitioner has standing under section 320.642, Florida Statutes, to file a petition with the Department of Highway Safety and Motor Vehicles (Department) protesting the establishment of an additional dealership at a proposed location.
Findings Of Fact As defined in section 320.60(11)(a), Recovery Racing is an existing motor vehicle dealer, and is a party to a Maserati franchise agreement. Recovery Racing sells Maserati vehicles from a licensed franchise located at 5750 North Federal Highway, Fort Lauderdale, Florida. As defined in section 320.60(8), Maserati is a licensee. Rick Case is the additional Maserati dealer that Maserati seeks to establish at 3500 Weston Road, Davie, Florida (proposed location). The Proposed Location is approximately 18 miles from Recovery Racing’s dealership located at 5750 North Federal Highway, Fort Lauderdale, Florida. Recovery Racing is not within a radius of 12.5 miles of the proposed Rick Case location; accordingly, Recovery Racing is not claiming standing pursuant to section 320.642(3)(b)1. Recovery Racing relies on section 320.642(3)(b)2., to establish standing. Mr. Stockton, the expert presented by Recovery Racing, opined that Recovery Racing has standing to protest because it made more than 25 percent of its retail sales to persons with registered household addresses within a 12.5 mile radius of the proposed location. Mr. Stockton’s opinion is based on his assumption that “registered household address,” as set forth in section 320.642(3)(b)2., means the address where the persons who use or drive the vehicle reside, regardless of the household addresses where the purchased vehicles are registered. Mr. Stockton explained that in making his calculation, he did not rely on vehicle registration data; rather, he relied on the dealership sales files for each sale, and information provided to him by Mr. Hayim, the general manager for Recovery Racing. Mr. Stockton’s opinion on standing was also based on his definition of “retail sales” as set forth in section 320.642(3)(b)2. According to Mr. Stockton, sales to businesses are included as retail sales where the business is an “instrument” of the transaction, and the person using the car is a “beneficiary.” In contrast, he explained that a sale to a business is excluded as a retail sale when the business is the “beneficiary” of the transaction. Turning to the time periods referenced in section 320.642(3)(b)2., Florida Administrative Code Rule 15C-7.004(9) sets forth the manner in which the 36-month period within which the 12-month period for standing is calculated. The period ends on the last day of the month preceding the month in which notice is published, running through the end of the month prior to the date of publication of the notice. Given the date of the notice in this case, which is May 12, 2014, the relevant period in the instant case ends on April 30, 2014, and begins 36 months before that date on May 1, 2011. In calculating the time periods detailed in section 320.642(3)(b)2., Mr. Stockton was unaware of the Florida Administrative Code rule addressing the calculation of the 12-month period within a 36-month period. Accordingly, he began and ended his calculations mid-month, on May 19, 2011. He explained that there were approximately 730 possible 12-month periods to review; each one starting on a different day, going forward 12 months. Mr. Stockton’s method of reviewing the statutory time periods does not comply with the standards set forth in the Florida Administrative Code. In making a standing calculation, the automotive industry calculates the percentage using the following fraction: the denominator is the total number of retail sales, and the numerator reflects the number of retail sales that are within the geographic radius required by the statute (referred to as “the ring”). The records attached to Mr. Stockton’s reports, which are tabs 6 through 128 (although not consecutively numbered) in Exhibit 1, contain the documents that Mr. Stockton relied upon in making his standing calculation. Mr. Stockton calculated the fraction at least two different times; both calculations were presented to the undersigned. The first calculations were reported as follows: Date range Sales within ring Nationwide sales Percent within ring 5/19/2011-5/18/2012 32 127 25.20% 5/20/2011-5/19/2012 32 127 25.20% 5/21/2011-5/20/2012 32 127 25.20% 5/22/2011-5/21/2012 32 126 25.40% 5/23/2011-5/22/2012 33 127 25.98% Mr. Stockton’s revised calculations, after receiving more information about some of the sales, were reported as follows: Date range Sales within ring Nationwide sales Percent within ring 5/19/2011-5/18/2012 34 127 26.77% 5/20/2011-5/19/2012 34 127 26.77% 5/21/2011-5/20/2012 34 127 26.77% 5/22/2011-5/21/2012 34 126 26.98% 5/23/2011-5/22/2012 35 127 27.56% Sixteen of the sales included in the “sales within ring” (using either of the two reports detailed above) are not supported by any vehicle registration data. Those 16 sales are, as enumerated by the tabs attached to Mr. Stockton’s report, the following: 18, 19, 24, 34, 37, 43, 51, 61, 68, 76, 109, 112, 117, 118, 119, and 122. Interestingly, for two of the sales, tab 37 and tab 43, Mr. Stockton knew that the cars were registered in New Hampshire and Orlando, Florida, respectively. He included them, however, in the sales within the ring because he had knowledge that the vehicles were being used by persons with household addresses within the ring. Mr. Stockton’s method of reviewing the “end user” of a vehicle sale is wholly dependent on documents that vary from sales file to sales file and on information given to him by the general manager of the dealership. This methodology is subjective and easily manipulated by an interested party. Mr. Stockton also included two sales, tabs 24 and 122, that were sold to non-retail buyers, who purchase the vehicle wholesale. He included both because he had acquired information that the “end users” of the vehicles were persons with household addresses within the ring. Maserati’s expert, Mr. Farhat, opined that Recovery Racing did not have standing to protest because Recovery Racing did not meet the 25 percent requirement of retail sales within the 12.5 mile radius, within the time period mandated by the statute. Mr. Farhat’s calculations were based on the assumption that the statutory term “registered household addresses” means the household addresses to which vehicles are registered with the Department. Given this assumption, he reviewed the vehicle registration data for each retail sale. Mr. Farhat obtained the data from two authoritative sources in the automotive industry: Experian and IHS. Both of these entities obtain their vehicle registration data from state departments of motor vehicles. Mr. Farhat defined the term “retail sale” as sales to individuals, and to businesses that purchase less than 10 vehicles in a year. He explained that this definition is used industry-wide. Mr. Farhat ultimately opined that Recovery Racing never got close to reaching the 25 percent requirement, in any of the potential rolling 12-month periods in the preceding 36- months. Mr. Farhat’s testimony as to the definition of “registered household addresses” is found credible, as it gives meaning to all of the language contained in the statute. Mr. Stockton’s definition is not supported by the statutory language, is unreliable, subject to manipulation, fails to give any meaning to the word “registered” as used in the statute, and inserts the term “end user” into the statute. Mr. Farhat’s testimony as to the definition of “retail sales” is also found credible, as it is an objective standard used by the automotive industry. Mr. Stockton’s definition of “retail sales” is suspect in that it requires investigation into whether a business is a “beneficiary” or an “instrument”—-again, information that is highly subjective and easily manipulated. The plain meaning of the words “registered household addresses,” as used in section 320.642(3)(b)2., is the household address to which a vehicle is registered with the Department. Given that 16 of the sales included in the ring by Mr. Stockton had no vehicle registration data, they cannot be included in the numerator. Two of those 16 sales were also not retail sales, as defined by the automotive industry. Recovery Racing failed to meet its burden of proving that it has standing to protest the proposed Rick Case dealership location, as it did not establish that 25 percent of its retail sales, sold during the defined statutory timeframe, were within the 12.5 mile radius set forth in section 320.642(3)(b)2.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing Recovery Racing’s protest of the proposed establishment of an additional dealer for lack of standing. DONE AND ENTERED this 17th day of December, 2014, in Tallahassee, Leon County, Florida. S 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 17th day of December, 2014. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) J. Andrew Bertron, Esquire Nelson, Mullins, Riley, and Scarborough, LLP Suite 202 3600 Maclay Boulevard, South Tallahassee, Florida 32312 (eServed) Robert E. Sickles, Esquire Hinshaw and Culbertson, LLP Suite 500 100 South Ashley Drive Tampa, Florida 33602 (eServed) Elias C. Schwartz, Esquire Schwartz and Englander, P.A. 1900 Glades Road, Suite 102 Boca Raton, Florida 33431 (eServed) Robert D. Cultice, Esquire Wilmer Cutler Pickering Hale and Door, LLP 60 State Street Boston, Massachusetts 02109 (eServed) Richard N. Sox, Esquire Jason T. Allen, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 (eServed) Terry L. Rhodes, Executive Director Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-443 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 (eServed) Steve Hurm, General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 (eServed)
The Issue Whether the Petitioner was unlawfully discriminated against on the basis of age by his employer, who terminated him five months prior to the vesting of his pension benefits. Whether the Respondent articulated a legitimate, non- discriminatory reason for Petitioner's termination. Whether the Petitioner proved by a preponderance of evidence that the articulated reasons were pretextual.
Findings Of Fact The Petitioner Beard is an individual who was born on November 21, 1947. The Respondent Sysco is a national food distribution company who delivers frozen foods to food service establishments such as restaurants, hospitals, and other institutions where meals are prepared and served. The Petitioner became employed by the Respondent in August 1977, at 30 years of age, in Fort Myers, Florida, as a truck driver. On June 16, 1979, the Respondent was promoted to Fleet Supervisor. At the time of the promotion, the Fort Myers warehouse where the Petitioner was employed was a full-service warehouse. The Petitioner's job duties were to supervise the truck drivers who were making deliveries from the Fort Myers warehouse. It was his responsibility to be aware of all the accounts in the area, and to set up the delivery routes and schedules. Straight trucks were used for delivery, and the route areas included Charlotte, Lee, Hendry, and Coller Counties. In 1983, the Respondent Sysco began handling and delivering more products in the Fort Myers distribution area than the Fort Myers warehouse could accommodate. Respondent decided to move the Fort Myers warehouse operation to its Miami location. As a result of the relocation of the warehouse portion of the Fort Myers operation, the Petitioner's job duties changed significantly. Under the new delivery procedures, the Miami warehouse would shuttle a 46-foot trailer to the Fort Myers location. The old loading dock was used to unload the trailer and to place the products on the straight trucks. From these trucks, the local truck drivers distributed the products to customers. Under these operational changes, the Petitioner became responsible for the supervision of the shuttle drivers who drove the 46-foot trailer and supplemental straight trucks once they left the Miami area and were in the Fort Myers operational area. He was also responsible for the Fort Myers route drivers, and it was his duty to make sure that the proper products were loaded in the most efficient way on the correct trucks from the Fort Myers loading dock. In addition, the Petitioner was responsible for the planning of the local routes and the trouble shooting necessary to correct misdeliveries, damaged goods, missing products, or special orders. In January 1986, the Respondent's Florida warehouse operations underwent further change and reorganization. At this time, all of the Fort Myers local routing responsibilities were moved to Miami, where the products would be routed by computer. The Petitioner was required to assist in this change, to consult with Miami to teach them about the service area, and to trouble shoot when the new system did not serve customer needs. In addition, new equipment and procedures were implemented in order to accomplish product distribution. The Respondent began to use short trailer trucks for local distribution routes instead of the traditional straight trucks. Under the new procedures, two short trailers are loaded in Miami. One trailer is hooked behind the other, and a tractor hauls the products to Fort Myers. Each trailer is self-contained, and has been packed in the order of the local driver's scheduled route. Once in Fort Myers, the local driver would hook his tractor to the designated trailer and proceed to his route. Under this system, there is no rehandling or reorganization of the products sent from Miami, as previously required by Respondent. At this point, the Petitioner's management responsibilities were drastically reduced, and his acquired skills were no longer important to the Respondent's operations. Pursuant to these changes, the Petitioner no longer exercised control over the truck loading for local route deliveries in the Fort Myers area. The entire routing and delivery system was handled in Miami. Although the Petitioner continued to supervise truck drivers and to handle the trouble shooting needed in delivery and routing matters, he was now required to run a partial route and make deliveries several days a week. The Respondent decided that the Petitioner's return to route work was necessary as his supervisory and paperwork responsibilities had been reduced. Between January and April of 1986, the Petitioner's supervisor became aware of that the Petitioner was having difficulty adjusting to the changes in his job duties as envisioned by the Respondent. The Petitioner was critical of the new procedures, and continued to unload and reload products at the Fort Myers loading dock once the trailers arrived from Miami. This was contrary to the Respondent's purpose as the Respondent sought to keep reloading to a minimum to prevent opportunities for product damage, thawing, or routing errors. The Respondent also sought to reduce man-hours used in products handling to reduce operational costs. In order to correct these problems, the Petitioner's supervisor spoke with him and later issued a memorandum instructing that routing would be done in Miami and that unloading/reloading of the product in Fort Myers be held to an absolute minimum. The Petitioner was asked to assist in an orderly transition to the new procedures. In the ensuing twelve months, the Petitioner continued to resist the operational changes made by the Respondent. The Petitioner continued to unload and reload the trailers once they reached Fort Myers. The routings continued to be changed by the Petitioner when he reviewed the routings and determined that certain changes were necessary. In November 1986, the Petitioner was verbally warned by his supervisor that his refusal to adopt the required operational changes was causing the Fort Myers area to have the most costly delivery operations in the marketing group. In spite of this warning, the Petitioner continued to reload and unload trailers, reroute, and to assign other drivers to his designated route. On April 29, 1987, the Petitioner was terminated from employment by his supervisor. The reasons given for termination were the Petitioner's failure to follow procedures, not making deliveries, and for having his subordinates motivated against him. The termination from employment occurred four months before the Petitioner's pension vested with the Respondent. According to the Employee Benefit statement as of June 29, 1986, the retirement plan would pay $7,983.00 per year for life, if retirement took place on December 1, 2012.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against based upon his age when he was not selected for promotion by the Respondent Corporation, and when he was ultimately terminated.
Findings Of Fact The Petitioner, Harlan Hamer, has many years of experience working in the trucking industry, particularly in management capacities. He has been engaged in managing safety, finance and administrative operations of large motor carriers, as well as operational aspects of a 350- truck unit motor carrier corporation. He has an extensive knowledge of the various aspects of regulation and operations pertaining to the trucking industry. He is also a licensed commercial, Class A driver, qualifying him to operate commercial vehicles such as large, over-the-road trucks. The Respondent is a dry-freight trucking company which, at the height of its operations in 2006-2007, operated 260 to 300 trucks. Apparently most of these were owned by the Respondent Shoreline. It employed the requisite number of drivers to keep this approximate number of trucks operating, as well as a significant number of office and terminal administrative, operations, management, and maintenance personnel. In early 2007, the Petitioner interviewed with Shoreline concerning an employment position. He interviewed with Randa Shipp, who was a recruiter for Shoreline at that time. Ultimately, Mr. Hamer was not selected for that job and secured alternative employment as a driver for Mineola Water Company. Soon thereafter, however, he received a call from Shoreline offering him a position as a "night dispatcher." He accepted that position and began working for Shoreline on May 14, 2007, at a weekly salary of $750. He completed an application at that time in which he revealed his age. The Respondent thus became well aware of his age at the time it hired him. His resume also describes his birth year as being 1947. The Shoreline form which documents his hiring, signed by the safety director at that time, Cheryl Allender, also reflects that birth date. His age of 60 or 61 years, at times pertinent to this case, was well known by the Respondent and had been since he was hired. The Petitioner had been a truck driver early in his career and later managed drivers. He was a manager for Pucket Oil Company; Santee Carriers, Inc; and Transwood, Inc. In some of these capacities he had been responsible for U.S. Department of Transportation mandated compliance with government regulations applicable to the trucking industry, as well as Equal Opportunity (EEO) compliance. When the Petitioner was hired as a night dispatcher he was given approximately three nights of training. Greg Bruce, testifying for the Petitioner, was also a night dispatcher and the Petitioner's counterpart. For the first three months of his employment in 2006, however, Greg Bruce had worked with the dayshift team as a Fleet Manager, in which he performed dispatching duties, while managing a group of drivers. Beginning in October 2006, Bruce had worked as a night dispatcher. He testified that the Petitioner responded well to training and, as far as he knew, performed his duties well after commencing his employment. Bruce however, did not observe the Petitioner performing his duties after the training period ended because they worked at different times. He did establish that the Petitioner consistently arrived early for his shift and communicated regularly with the day shift team, before they departed at the end of their shift. He established that the Petitioner had a good attendance record, and was seldom or never absent, because he never had to "cover" the Petitioner's duties, which he would have done if the Petitioner had missed work. The night dispatcher for Shoreline functioned alone while on shift, had to answer four telephone lines and respond to text messages from drivers, concerning any issues arising during the night. The night dispatcher was also required to communicate with customers and to generate new loads. The night dispatcher had responsibility for resolving equipment break-down issues for Shoreline as well as Shoreline Transportation of Alabama, a related trucking company under the same ownership. The night dispatcher's duties were essentially the same as those performed during the day by fleet managers, as well as load data entry personnel and customer service personnel. The testimony of the Petitioner and Bruce, together, establishes that the Petitioner was generally adequately qualified to perform the duties of Night Dispatcher. Mistakes were made by the night dispatchers, including the Petitioner, as well as by day-shift personnel. Day-shift personnel would sometimes omit a correct "pick-up number" so that the night dispatchers would have to search the office to locate a particular bill of lading to determine load/delivery information. Because of the large number of trucks on the road at any given time, resolving such issues could take a considerable period of time. Both the night dispatchers, including the Petitioner as well as the day-shift personnel, made mistakes such as entering incorrect numbers in the company record system concerning trucks, drivers and loads. The totality of the testimony and evidence shows, however, that, after training, and after gradually improving on the job the Petitioner was adequately qualified for the night dispatcher job at the time of his termination. Sometime in August 2007, the Petitioner learned that the company would be hiring an Operations Manager to assist Clayton Gremillion in his operations management duties. The Petitioner therefore approached Clayton Gremillion (his supervisor) about his interest in being considered for that new position. Clayton Gremillion acknowledged in his testimony that the Petitioner had informed him of his interest in moving into a management position, and had informed him about his qualifications. Clayton Gremillion further acknowledged that the company was creating such a management position and that he told the Petitioner that he would "keep him in mind" for that position. The position was not posted or advertised and there was no actual opportunity to make a formal application. In any event, the Petitioner was never interviewed for that position nor was it ever discussed with him, after the initial conversation he had with Clayton Gremillion. Clayton Gremillion, and his father, Don Gremillion, the owner, interviewed and then hired Justin Allen for the new position, on January 21, 2008. He was hired as an Operations Manager, at a weekly salary of $1,346.15. Allen was much younger than the Petitioner, being born in 1979. Mr. Bruce testified that he had more than 20 years experience in trucking management and he would have been qualified and wished to have been considered for the job. He testified that he considered the Petitioner even more qualified because of his longer experience in management with trucking companies with similar operations. Justin Allen had much less experience in the trucking business than either the Petitioner or Greg Bruce. He did have a few years of experience working for J.B. Hunt Trucking Company, but he lacked significant management experience. Justin Allen was hired, however, because it was believed that he had business connections which would be of significant assistance in generating new revenue and accounts for the company, chiefly accounts with Lowe's and Wal-Mart. This was the primary reason for Shoreline to hire Allen, as well as the fact that it was considered important to obtain help for Clayton Gremillion in managing the company's operations. The evidence is not clear as to how much new revenue Allen may have generated for Shoreline. Allen also performed some human resource duties, as well as helping Clayton Gremillion in operations management. In 2007, as well as into 2008, Shoreline was adversely impacted by an economy entering a severe recession, with a particularly severe financial strain caused by escalating diesel fuel prices. Indeed, Shoreline lost $1.7 million in 2007 and lost over $2 million in the first six months of 2008, which resulted in its closure, effective July 1, 2008. On that date, the company operations ceased and all assets and equipment were leased to Evergreen Transportation Corporation. During the period leading up to this company closure, economic adversity caused Shoreline to take some 40 trucks out of service, in approximately early February of 2008. This resulted in the layoff of numerous drivers and some office personnel. In early 2008, the New Orleans office of Shoreline was closed, due largely to economic conditions. An employee, Mike Hill, who had been staffing the New Orleans office, was transferred to the main office in Cantonment, Florida. Mike Hill had been initially hired by Shoreline on August 30, 2004. He had worked in the trucking industry prior to that time as a driver and also had approximately ten months experience in dispatching before being hired by Shoreline. In 2007 and early 2008, Hill was being paid a $1,000 weekly salary plus a $300 car allowance. While working for Shoreline in the New Orleans area he serviced the Gulf States Coca-Cola Company account, at its facility in New Orleans, as one of Shoreline's most important customers. Hill is a substantially younger person than the petitioner, being born in 1971. Apparently, Mr. Hill had communication difficulties, or disputes, with Coca-Cola's representative, Shawn Blazer. While that may have affected the decision to remove him from the Louisiana office and return him to the Florida office, the evidence shows that Shoreline kept the Coca-Cola account and had it serviced by Hill, and later Norman Macintosh and ultimately by Greg Bruce. Bruce testified that because of his efforts Shoreline regained business that Hill had lost with Coca-Cola. Be that as it may, the evidence shows that the primary reason that Mike Hill was transferred back to the Cantonment office was due to the economic downturn and the Respondent's closure of the New Orleans area office or terminal. Mike Hill had worked for Shoreline since 2004 and had worked in the night dispatching and breakdown clerk position before Mr. Hamer ever joined the company. Consequently, due to his seniority and due to his relevant experience, Hill was moved back from New Orleans and given the position held by the Petitioner. The Petitioner was therefore informed by Cheryl Allender, on or about February 6, 2008, that Clayton Gremillion had decided to terminate the Petitioner's employment because the position would be filled by Mike Hill. The Petitioner was told it was necessary to lay him off due to the need to reduce forces as a result of economic conditions. The financially-driven reduction of Shoreline's forces in New Orleans and the decision to retain Mike Hill who was an employee with seniority, according to the Respondent, led to the Petitioner's layoff. In addition to the Petitioner, six other office personnel were laid off within thirty days of the Petitioner's layoff. Clayton Gremillion testified that there were certain performance deficiencies displayed in the Petitioner's work as a night dispatcher. These involved tardy or incorrect input of data into the computerized load/truck/customer tracking and records system, and some delays in arranging for the repair of truck break-downs and for alternative means of delivery or pick-up of the relevant loads. The primary reason for the layoff, however, was as a result of the reduction of forces in the New Orleans operation and the decision to transfer employee, Mike Hill, with his seniority, and experience in dispatch work, to replace the Petitioner in his position. It is true that Shoreline hired some other personnel after the Petitioner's layoff, and in the face of the economic downturn. However, none of these personnel were hired to fill the Night Dispatch/Break-Down Clerk position that the Petitioner had occupied. Lloyd Randall was hired after the Petitioner was laid off. Lloyd Randall, born in 1954, was approximately seven years younger than the Petitioner. He was hired to work as a fleet manager on the recommendation of a mutual acquaintance to Clayton Gremillion. In fact, as Clayton Gremillion conceded, he hired him "as a favor to a friend." He hired him at a salary rate of approximately $475 per week. On the day of his hire, Mr. Randall decided he would not stay, whereupon Clayton Gremillion offered him $565 per week for the position. Mr. Randall, however, determined that it was not the type of work he desired and left after being employed for approximately one day. Mike Hill, who had been hired in the position from which the Petitioner was terminated, left the company fairly soon, on March 31, 2008. The position which had been occupied by the Petitioner, and then Mike Hill, was next filled by Norman Macintosh, who is over 50 years of age and had worked with Shoreline since the 1980's. Shoreline employed people in all age ranges. This included several over the age of 40, some over the age of 50, and some over the age of 60. In February 2008, for example, when the Petitioner was laid off, numerous drivers were employed over the age of 50 and Norman Macintosh and Jerry Adkins, longtime company employees, respectively in the dispatcher positions and maintenance supervisor positions, were over the age of 50. Mr. Adkins was over 60 years of age at the time. Shoreline continued to run ads seeking to fill certain positions, including office positions, after the Petitioner's layoff. These were not ads seeking employees for the night dispatcher/break-down clerk position that the Petitioner had held, however. Although Shoreline hired some additional personnel after the Petitioner's layoff, none of them were hired to fill his position. In any event, the Petitioner noticed the ads and called Jerry Adkins to find out "what was going on." The fact is, however, that in response to the ads the Petitioner never contacted anyone else at Shoreline in an effort to either get his former job back, or to seek some other position with the company, such as those referenced in the ads. Mr. Adkins, the Maintenance Supervisor for Shoreline, was over 60 years of age. The Petitioner contends that he is a biased witness because he was a long- time company employee and, even after the cessation of company operations, still had a company-supplied vehicle. It is not found that this fact, together with any facts elicited on cross-examination of Mr. Adkins, or otherwise, has established him to be lacking in credibility, however. Mr. Adkins did not believe that the Petitioner's layoff was associated with his age. Instead, he stated that it was to accommodate bringing the more senior employee, Mike Hill, back to the company headquarters location from the closed New Orleans location and operation. His testimony is accepted as credible. When the Petitioner learned that his former position with Shoreline was being advertised, in March 2008, he did not apply for it. He had an application pending with another trucking company at the time which he anticipated would be a better employment opportunity. Moreover, he did not apply for other employment positions which he maintains were filled with younger people. There is no evidence to show that in instances when substantially younger people were hired for positions with the company, before and after the Petitioner's layoff, that it was at the expense of persons more in the Petitioner's age range, who sought the positions also and were rejected. That was simply not shown, in addition to the fact that the Petitioner did not apply for other positions. In fact, these positions have fairly low pay levels. It thus may be that these positions, or some of them, were filled by significantly younger people because older, more experienced applicants would not be attracted by the relatively low pay levels. In any event, had the Petitioner made an inquiry concerning being re-hired by the Respondent for any position, it would not likely have occurred. This is because of performance problems described by the testimony of daytime dispatcher Chip Wasdin, as well as by Clayton Gremillion. The Petitioner made mistakes and had difficulty ensuring that data was entered correctly into the company's computer system. The Petitioner acknowledged making mistakes in this regard, even after his first few months in his position. In summary, it has not been demonstrated that the Petitioner was terminated, nor that he failed to receive the promotion to the management position, because of his age. The Respondent has established the above-referenced legitimate business reasons for the hiring of Justin Allen and Mike Hill. Other substantially younger people hired for positions, even if their tenure was very short in those positions in late 2007, or the spring of 2008, were not shown to be hired at the expense of the Petitioner or any other applicants in the Petitioner's age range. In fact, the Petitioner applied for no such positions. Given the overall tenor of Clayton Gremillion's testimony, it may even be the case that, in one or more of the hiring situations, the hiring related at least somewhat to cronyism. Clayton Gremillion admitted hiring Lloyd Randell as a favor to a friend, and the same may be true in terms of a friend's recommendation with regard to Justin Allen. In any event, however, there was no showing of any intent to discriminate, based upon age, by the hiring of significantly younger people than the Petitioner, or in the failure to promote or the termination of the Petitioner. Finally, the lack of intent to discriminate based upon age is borne out by the fact that the Respondent was fully aware of the Petitioner's age in the spring of 2007, when it chose to hire him.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that no discriminatory employment actions based upon the Petitioner's age occurred and dismissing the Petition in its entirety. DONE AND ENTERED this 16th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 16th day of June, 2009. COPIES FURNISHED: Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 Michael W. Kehoe, Esquire Fuller, Johnson, Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola Florida 32503 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Gorilla Motor Works, LLC (Gorilla) should be permitted over Petitioner's protest to establish an additional dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 188 North Federal Highway, Deerfield Beach, Florida 33441 (the proposed location).
Findings Of Fact Petitioner is an existing franchised dealer of ZHNG Motorcycles. Petitioner's dealership is located at 550 North Flagler Avenue, Pompano Beach, Florida. Petitioner's dealership is approximately 7.2 miles from the proposed location. Respondents offered no evidence that Petitioner has failed to adequately represent ZHNG.
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 denying the request to establish a new ZHNG dealership at the proposed location. DONE AND ENTERED this 7th day of December, 2011, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of December, 2011.
The Issue The issue in this case is whether Respondents' application to establish a dealership to sell motorcycles manufactured by Chongqing Astronautical Bashan Motorcycle Manufacturer Co., Ltd. (BASH line-make), should be approved.
Findings Of Fact Petitioner filed an “Official Notice of Protest – Petition for Determination” dated August 21, 2014, with the Florida Department of Highway Safety and Motor Vehicles (HSMV). The protest/petition opposes Respondent’s noticed intention to establish a dealership to be called Wild Hogs Scooters and Motorsports, LLC, at 1431 South Woodland Boulevard, Deland (Volusia County), Florida. Notice of that intent was duly published in the Florida Administrative Register on August 29, 2014. (There was no explanation provided as to why Petitioner’s protest/petition was filed before the publication of the notice.) Petitioner’s protest/petition asserts that Respondent’s proposed new dealership will be located “within our territory.” Petitioner further asserts that Peace Industry Group is its “number two supplier of scooters, and represents 38% of our scooter sales.” Petitioner did not appear at final hearing or present any competent evidence to support these allegations. Respondent provided evidence suggesting that Petitioner has only purchased seven motor-scooters from Peace Industry Group. Petitioner did not appear at final hearing and present evidence as to its “standing to protest” as required by section 320.642(3), Florida Statutes. (Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 version.) Conversely, Respondent presented evidence that Petitioner’s dealership in Deland, Florida, has closed and gone out of business. This unrefuted evidence proves that Petitioner no longer has standing to protest Respondent’s proposed new dealership in the area. The propriety of Petitioner’s protest is the only issue in this proceeding. A petitioner without standing cannot pursue such a challenge.
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 denying Petitioner, Navitas Financial Group, Inc., d/b/a Pompano Pats Deland's protest of Respondent's proposed new dealership. DONE AND ENTERED this 12th day of January, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 12th day of January, 2015. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-338 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 (eServed) Steve Hurm, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 (eServed) Meiredith Huang Peace Industry Group (USA), Inc. 2649 Mountain Industrial Boulevard Tucker, Georgia 30084 Patrick M. Johnson The Navitas Financial Group, Inc. 2075 South Woodland Boulevard Deland, Florida 32720 Jeff Rupp Wild Hogs Scooters and Motorsports, LLC 1861 Marysville Drive Deltona, Florida 32725 G. Michael Smith, Esquire Smith Collins, LLC 8565 Dunwoody Place Building 15 Atlanta, Georgia 30350 (eServed)
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.
