The Issue The issue in this case is the propriety of Respondent's protest of a proposed establishment of a motorcycle franchise dealership in St. Petersburg, Florida, based on issues specifically within the purview of Sections 320.642 and 320.699, Florida Statutes (2006).1
Findings Of Fact The parties did not appear at the formal hearing. The parties did not object to the date, time, or place of the hearing. The representative for MotorSports represented by telephone to the administrative assistant for the undersigned that he did not intend to appear at the administrative hearing. However, the representatives for the other parties provided no advance notice of their intent not to appear at the hearing. The parties did not file a motion to continue or reschedule the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that the protest filed by Respondent is proper regarding issues specifically within the purview of Sections 320.642 and 320.699. DONE AND ENTERED this 9th day of May, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 9th day of May, 2007.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Voluntary Dismissal With Prejudice, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed October 1, 2010 4:40 PM Division of Administrative Hearings. DONE AND ORDERED this / & day of October, 2010, in Tallahassee, Leon County, Florida. Y , CARL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_/st day of October, 2010. loos y Nalini Vinayak, Dealer ‘Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Jason T. Allen, Esquire Bass, Sox & Mercer 2822 Remington Green Circle Tallahassee, Florida 32308 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by J. D. Parrish, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Relinquishing Jurisdiction and Closing File as its Final Order in this matter. Said Order Closing File was predicated upon the Respondent's Notice of Dismissal With Prejudice. Accordingly, it is hereby ORDERED that the Dealer Agreement between Yamaha Motor Corporation U.S. A. and Con's Cycle Center, Inc. d/b/a House of Power is terminated . Filed February 15, 2010 8:00 AM Division of Administrative Hearings. DONE AND ORDERED this // i of February, 2010, in Tallahassee, Leon County, Florida. rec Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this }jj_hJ.ay of February, 2010. JJrV+ina=jlll,706.. · c\..Gminiiiraiiit NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Alex Kurkin, Esquire Kurkin Brandes, LLP 4300 Biscayne Boulevard, Suite 300 Miami, Florida 33137 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
Findings Of Fact Respondent, Mechanical Services of West Palm Beach, Inc. (Mechanical Services), is an existing Suzuki motorcycle dealership located in Palm Beach County, Florida. Respondent, Deerfield Suzuki, Inc. (Deerfield Suzuki), is an existing Suzuki motorcycle dealership located at 4141 North Federal Highway, Pompano Beach, Broward County, Florida. Petitioner, Fun Stream Recreation, Inc. d/b/a Delray Kawasaki (Delray Kawasaki) is an existing dealer for Kawasaki motorcycles and is located at 505 N.E. 5th Avenue, Delray Beach, Palm Beach County, Florida. Delray Kawasaki is the proposed Suzuki dealership. Petitioner, American Suzuki Motor Corporation (American Suzuki) is the licensee which intends to establish a new Suzuki dealership at Delray Kawasaki. Deerfield Suzuki and American Suzuki have stipulated that Deerfield Suzuki is located within 12.5 miles of the location of the proposed dealership. Palm Beach County, Florida, has a population in excess of 300,000. Based on information from the Bureau of Economic and Business Research, University of Florida, Palm Beach County's population was estimated to be 937,190 as of April 1, 1994. No evidence was presented to establish that Mechanical Services was located within 12.5 miles of the location of the proposed dealership or that during the 36 month period before the filing of the application for the proposed dealership that Mechanical Services made 25 percent of its retail sales of new vehicles to persons whose registered household addresses were located within a radius of 12.5 miles of the location of the proposed dealership. COMMUNITY OR TERRITORY Neither Deerfield Suzuki nor Mechanical Services has an agreement with American Suzuki which geographically defines the sales territory for the dealerships. The majority of Suzuki sales by Mechanical Services are in Palm Beach County. Deerfield Suzuki derives the majority of its Suzuki sales from Broward County residents. The majority of Kawasaki sales from the proposed Suzuki dealership, Delray Kawasaki, are made to customers in Palm Beach County. American Suzuki contends that Palm Beach County is the community or territory which should be considered in determining whether there is adequate representation in the community or territory of the proposed dealership. Deerfield Suzuki presented no evidence to indicate that the community or territory should be an area other than Palm Beach County. Based on the evidence presented, the relevant community or territory is defined as Palm Beach County, Florida. IMPACT OF THE ESTABLISHMENT OF THE PROPOSED DEALERSHIP During 1992, Deerfield Suzuki made 49 Suzuki sales to customers within a 12.5 mile radius of the proposed dealership. These sales represented 38 percent of Deerfield Suzuki's total retail sales for 1992. Deerfield Suzuki made 31 Suzuki sales in 1993 to customers within a 12.5 mile radius of the proposed dealership. These sales accounted for 32 percent of Deerfield Suzuki's total Suzuki retail sales for 1993. Deerfield Suzuki derived 32 percent of its total Suzuki retail sales in 1994 from customers within a 12.5 mile radius of the proposed dealership, by making 34 sales. Peter A. Barskis, President of Deerfield Suzuki, anticipates that the establishment of the proposed dealership will lessen the number of sales that Deerfield is currently making in the Boca Raton and Delray Beach area. Mr. Barskis did not present any evidence to indicate to what extent Deerfield Suzuki's market share in those areas would be diminished and to what extent it would have a financial impact on Deerfield Suzuki. INVESTMENTS MADE AND OBLIGATIONS INCURRED BY CURRENT DEALERSHIPS The only evidence presented with regard to the facilities of the exiting dealers pertained to Mechanical Services which sought and received permission from American Suzuki to relocate Suzuki into its existing facility. Mechanical Services represented to American Suzuki that it would construct an additional facility in order to properly represent Suzuki. To date, Mechanical Services has not constructed an additional facility. REASONABLY EXPECTED MARKET PENETRATION Market penetration is the percentage of Suzuki products sold compared to the total industry, regardless of the dealer which sold the product. In the motorcycle industry, registration and sales information are compiled by R.L. Polk and Co. (Polk) and since January 1994, by the Motorcycle Industry Council (MIC). Polk data reflects only motorcycles which are registered with the states for use on the highways. Most all terrain vehicles (ATV's) are not registered with the state of Florida. Polk reports registrations of motor scooters which are registered for street use; however, Suzuki does not compete in the motor scooter market. Thus, data from Polk is only utilized for the "2- wheel motorcycle" or "street-legal" motorcycle category. MIC data, available only since the beginning of 1994, reports all sales of vehicles from the major motorcycle brands, regardless of whether the vehicles are registered for street use. Based on the Polk data, Suzuki received the following market share of the motorcycle market for 1990-1994: 1990 1991 1992 1993 1994 National 15.01 16.34 15.92 14.81 13.37 Florida 12.78 14.30 14.62 12.59 11.38 Broward County 10.32 16.08 16.97 13.17 11.48 Palm Beach County 16.33 15.85 11.52 9.57 8.81 Based on the MIC data, Suzuki received the following market share for 1994: National 13.44 Florida 14.29 Broward County 15.84 Palm Beach County 10.98 Broward County is adjacent to Palm Beach County. Based on information from the Bureau of Economic and Business Research, University of Florida, Broward County's population was estimated to be 1,340,220 as of April 1, 1994. Suzuki does not have dealers in some areas of Florida where its competitors do. Such areas include St. Augustine, Key West, and Gainesville. Based on the evidence presented, Broward County is an appropriate standard to use in determining adequacy of representation in Palm Beach County. There is adequate representation of Suzuki in Broward County. In 1994 there were a total of 1,394 motorcycle type vehicles sold in Palm Beach County. Using Broward County's market penetration of 15.84 percent as a standard, it would be reasonable to have expected 221 Suzuki sales. The actual sales made were 153. Thus, 68 of the expected sales were lost to Suzuki's competitors. If you look at Broward County as a standard based on population for 1994, there were 41 sales in Palm Beach County that were lost to Suzuki's competitors. There were 278 Suzuki sales in Broward County in 1994. Based on Broward County's population of 1,340,220, the ratio of population to Suzuki sales is 4821/1. Based on Palm Beach County's population of 937,190, it would be reasonable to have expected 194 Suzuki sales in 1994. However, the actual sales were 153. ACTIONS BY LICENSEE RELATING TO OPPORTUNITY FOR GROWTH, EXPANSION AND RELOCATION FOR EXISTING DEALERS In 1990, Deerfield Suzuki sought and received permission from American Suzuki to relocate from its prior location in Deerfield Beach to its current location in Pompano Beach which is three miles south of its previous location. In December 1992, Mechanical Services sought and gained approval from American Suzuki to transfer a franchise previously held by another dealership. As a result of this transfer the Suzuki dealership was relocated one mile north or further away from Delray Beach. Deerfield has requested American Suzuki to supply it with vehicles in excess of its allocation and American Suzuki has done so. From 1991 to 1995, American Suzuki has discontinued some models, however, the models were discontinued for either product liability reasons or in the normal change of models carried on by all manufacturers on a periodic basis. American Suzuki has also added models during this time period. In 1990 and 1991, American Suzuki did spring advertising promotions in Palm Beach County. In 1991 and 1992, American Suzuki did spring advertising promotions in Broward County which lasted approximately two months each. In 1992, 1993, 1994, and 1995, American Suzuki did a Miami Grand Prix advertising promotion in Broward County, which lasted one week each year. DISTANCE BETWEEN EXISTING DEALERS AND PROPOSED DEALER The driving distance between Mechanical Services and Delray Kawasaki, the proposed dealership, is 22.2 miles, and the travel time between the two dealers is 31 minutes. The driving distance between Deerfield Suzuki and Delray Kawasaki is 18.1 miles and the travel time is 24 minutes. ADEQUACY OF INTERBRAND AND INTRABRAND COMPETITION AND CONVENIENCE OF CONSUMER CARE In 1994, there were three Suzuki dealers, two Honda dealers, three Yamaha dealers, and two Kawasaki dealers in Broward County. In 1994, Palm Beach County had one Suzuki dealership, two Honda dealerships, one Yamaha dealership, and two Kawasaki dealerships. One Kawasaki dealership is located in Delray Beach and one Honda dealership is located in the southern portion of Palm Beach County in Boca Raton. The remaining dealerships are located in the northern portion of Palm Beach County. When the number of Suzuki sales in the Delray Beach area made by Mechanical Services and Deerfield Suzuki are compared to the Kawasaki sales in that area, it is obvious that there is a lack of interbrand competition in that area. See Suzuki Exhibits 2, 3, and 4. The distance between Mechanical Services and Deerfield Suzuki does not promote intrabrand competition. For example a customer in West Palm Beach could shop for a Suzuki at Mechanical Services , but then would have to travel almost an hour south to Broward County, or a substantial distance north to Martin County, to comparison-shop for a better price, service, and selection. ECONOMIC AND MARKETING CONDITIONS In terms of future growth, Palm Beach County is projected to continue its substantial growth, in terms of population, through 2020. The total motorcycle market, as reflected in Polk registrations for Palm Beach County, has increased consistently since 1991. In 1991, the total motorcycle registrations were 568; in 1992, 712; in 1993, 857; and in 1994, 863. On a national level, although total motorcycle industry registrations reached a low point of 183,679 in 1991, this figure has steadily increased to 187,989 in 1992; 214,618 in 1993; and 234,337 in 1994. In terms of future growth of the motorcycle industry nationwide, this increase is forecasted to continue at least through 1998. There has been a decline in the national market share for Suzuki from 1992 through 1994. However, there has been a greater decline in the market share in Palm Beach County for the same time period. The economic growth and marketing data demonstrate that the addition of a Suzuki dealership in Delray Beach is justified by the growth of population and the motorcycle market. PERFORMANCE OF THE DEALER NETWORK Based on the performance of the existing dealer network for Palm Beach County using Polk data, the efficiency percentage of sales penetration in Palm Beach County for 1990-1994 as compared to the national and state penetration was as follows: 1990 1991 1992 1993 1994 National 108.8 97.0 72.4 64.6 65.9 Florida 127.7 110.8 78.8 76.0 77.4 Using the MIC data for 1994, the existing dealer network's efficiency as compared to the national market penetration was 81.6 percent and as compared to the Florida market penetration was 76.8 percent. In comparison, the efficiency percentage of performance of the dealer network in adjacent Broward county for 1990-1994 based on Polk data was as follows: 1990 1991 1992 1993 1994 National 68.8 98.4 106.6 88.9 85.9 Florida 80.8 112.4 116.1 104.6 100.9 Based on MIC data the efficiency of performance for Broward County for 1994 was 118 percent as compared to the national market penetration and 111 percent as compared to the Florida market penetration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the protest of Mechanical Services for lack of standing and granting the application to establish a Suzuki motorcycle dealership at Delray Kawasaki, 505 N.E. 5th Avenue, Delray Beach, Florida. DONE AND ENTERED this 10th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings 10th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6991 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting a conclusion of law. Paragraph 5: The first sentence is rejected as constituting a conclusion of law. The second sentence is accepted. Paragraphs 6-17 : Accepted in substance. Paragraphs 18-19: Rejected as constituting argument. Paragraph 20: Accepted in substance as it relates to Broward County but rejected as to Dade County as irrelevant. Paragraphs 21-23: Rejected as subordinate to the facts found. Paragraph 24: Rejected to the extent that Deerfield Suzuki argues that the appropriate standard is the national average. Paragraph 25: Rejected as constituting argument. Paragraph 26: The first sentence is accepted in substance except as to the two weeks. The evidence established the duration was one week. The last sentence is rejected as constituting argument. Paragraph 27: The first sentence is accepted in substance. The first half of the second sentence is accepted in substance and the remainder is rejected as irrelevant. Paragraphs 28-33: Accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraphs 35-39: Accepted in substance. Paragraph 40: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 41-42: Rejected as constituting argument. Paragraph 43: Accepted in substance. Paragraph 44: Rejected as constituting argument. Paragraphs 45-51: Accepted in substance. Paragraph 52: Rejected as constituting argument. Paragraphs 53-54: Accepted in substance. Paragraph 55: Rejected as constituting argument. Paragraphs 56-60: Accepted in substance. Paragraph 61: Accepted. Respondent Deerfield Suzuki's Proposed Findings of Fact. (Deerfield Suzuki did not delineate findings of fact and conclusions of law.) Paragraph 1: The first, second and third sentences are rejected as constituting argument. The last sentence is rejected as not based on the greater weight of the evidence and as irrelevant because the Palm Beach County averages also fell below the national averages from 1991-1994. Paragraph 2: The first sentence is accepted in substance. The second and third sentences are rejected as not supported by the greater weight of the evidence. The fourth sentence is rejected as subordinate to the facts found because since 1991 Palm Beach County's average has been lower than the national, Florida, and Broward County averages. The fifth and sixth sentences are accepted in substance. The seventh sentence is rejected as constituting argument. The eighth sentence is rejected as subordinate to the facts found. The ninth sentence is rejected as constituting argument. The tenth sentence is accepted in substance. Paragraph 3: The last sentence is rejected as constituting argument. The remainder is accepted in substance. Paragraph 4: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: John Logsdon Cycles of Palm Beach 2353 North Military Trail West Palm Beach, Florida 33409 Dean Bunch, Esquire Cabaniss, Burke & Wagner 909 East Park Avenue Tallahassee, Florida 32301 Mr. Peter A. Barskis, President Deerfield Suzuki, Inc. 4141 North Federal Highway Pompano Beach, Florida 33064 Mike Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
Findings Of Fact Respondent Dick Farmer's Harley Davidson of Orlando, Inc. (Respondent) has been a franchised Harley-Davidson motorcycle dealer in Orlando since 1966. The franchise agreement gives Respondent the right to sell Harley-Davidson products "primarily to persons residing or doing business" in Orange County. At all material times, Respondent has been the exclusive Harley-Davidson dealer in Orange County and has been located at 46 North Orange Blossom Trail, which is also known as Highway 441. Harley-Davidson, Inc. first awarded a franchise to a dealer in Seminole County in 1976. The original location of the Seminole County dealership was on Highway 436 less than one mile west of Highway 17-92. The Seminole County dealership was moved about two miles north to its present location on Highway 434 about two miles west of Highway 17-92. After this move, Harley Davidson of Seminole County, Inc. (Petitioner) acquired the Seminole County franchise and has since operated it from the Highway 434 location. Petitioner's franchise agreement gives it the right to sell Harley- Davidson products "primarily to persons residing or doing business" in Seminole County. At all material times, Petitioner has been the exclusive Harley- Davidson dealer in Seminole County. By application dated March 28, 1988, Petitioner requested a license to relocate its Harley-Davidson motorcycle franchise from its present location at 490 West Highway 434 to 8155 Highway 17-92. By letter dated November 12, 1987, Harley- Davidson, Inc. gave its approval of the relocation. On November 11, 1987, Respondent, through its attorney, sent a letter to Harley-Davidson, Inc., with copies to Petitioner and the Department of Highway Safety and Motor Vehicles (Department). In the letter, Respondent stated that a proposed relocation of Petitioner's dealership would adversely affect Respondent's rights under the existing franchise agreement with Harley- Davidson, Inc. and violate Sections 320.641 and 320.642, Florida Statutes. The Department has denied Petitioner's application for a license to relocate the dealership. The above-described locations of the Seminole County dealership are all in Seminole County, which is immediately north of Orange County. The present location is on a major east-west highway running through the central portion of south Seminole County, about two miles west of Highway 17-92 and three miles east of Interstate 4. Both of these highways are important north-south routes linking Seminole and Orange Counties. The proposed location is about 3 1/4 miles south of the present location. It is less than one mile south of the original location and about .9 mile north of the Orange County line. Approximately 25% of Respondent's sales are to persons residing in the vicinity of the county line dividing Seminole and Orange Counties, although Respondent was unable to separate its Seminole County sales from north Orange County sales. There was no evidence that Respondent was inadequately representing Orange County or that Respondent had failed to comply with any provisions of its franchise agreement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting a license to Harley Davidson of Seminole County, Inc. to relocate its Harley-Davidson motorcycle dealership from 490 West Highway 434 to 8155 Highway 17-92 in Seminole County. DONE and RECOMMENDED this 20th day of October, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1988. APPENDIX Treatment Accorded Petitioners' Proposed Findings of Fact 1-2 and 4. Adopted. 3. First clause of first sentence rejected as against the greater weight of the evidence. According to the map, the distance between Respondent's location and the proposed location is a little over 8 miles. (All distances are "as the crow flies.") Second clause of first sentence adopted. Second sentence rejected as irrelevant. 5-6 and 8. Rejected as irrelevant. 7 and 9. Adopted. 8. Rejected as not finding of fact and irrelevant. 11-16. Rejected as irrelevant. The replacement-dealer doctrine has no application under present law when the dealer relocation takes place outside the territory of the protesting dealer. 17. Adopted except that Petitioner's territory has been established by Harley-Davidson, Inc., not the Department in its earlier final order. Treatment Accorded Respondent's Proposed Findings of Fact 1 and 4-5. Rejected as not findings of fact. 2-3 and 6. Adopted. First sentence rejected as against the evidence. Petitioner purchased the dealership after it was moved from Highway 436 to Highway 434. Second sentence adopted. Adopted in substance. Rejected as irrelevant. 10 and 13-14. Rejected as subordinate. 11-12. Adopted in substance. Rejected as irrelevant. Adopted. Rejected as repetitious. Rejected as irrelevant. and 21. Rejected as subordinate. and 22. Rejected as unsupported by the greater weight of the evidence. Rejected as irrelevant. Rejected as recitation of testimony. COPIES FURNISHED: Joel S. Rossignolo, Esquire 3616 Squire Lane Orlando, Florida 32806 Michael Gasdick, Esquire 250 North Orange Avenue Suite 1400 Orlando, Florida Joseph C. Jacobs, Esquire Post Office Drawer 1170 Tallahassee, Florida 32302-1170 Harley Davidson, Inc. 3700 West Juneau Avenue Post Office Box 653 Milwaukee, WI 53201 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Dealer License Section Room A3l0 Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley Director Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by D.R. Alexander, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Peace Industry Group (USA), Inc., and Cycle Pros of Tampa, Inc. to sell motorcycles manufactured by Chongquing Astronautical Bashan Motorcycle Manufacturer Co., Ltd., (BASH) at 2221 US 92, Lakeland (Polk County), Florida 33801. Filed July 29, 2014 9:36 AM Division of Administrative Hearings DONE AND ORDERED this AZ day of July, 2014, in Tallahassee, Leon County, Florida. Filed in the official records of the Division of , Motorist Services this AS day of July, Bureau of Issuance Oversightscesassn 2014. Division of Motorist Services Department of Highway Safety and Motor Vehicles Vabn: Crragol Neil Kirkman Building, Room A338 Nalini Vinayak, Dealer License Administrator — Tallahassee, Florida 32399 Copies furnished to: Amber L. Moran, Member KM Powersports Number 2, LLC Donn Lund 1402 Highway 92 West Regional Administrator Auburndale, Florida 33823 Dealer License Section D.R. Alexander Administrative Law Judge Meiredith Huang Division of Administrative Hearings Peace Industry Group (USA), Inc. The DeSoto Building 2649 Mountain Industrial Boulevard 1230 Apalachee Parkway Tucker, Georgia 30084 Tallahassee, Florida 32399-1550 Carmen Hayes G. Michael Smith, Esquire Cycle Pros of Tampa, Inc. Smith Collins, LLC 3691 State Road 580 West 8565 Dunwoody Place, Building 15 Oldsmar, Florida 34677 Atlanta, Georgia 30350 i) NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure.
Conclusions This matter came on for determination by the Department upon submission of an Order Closing File by P. Michael Ruff, an Administrative Law Judge, of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. ORDERED that this case is CLOSED and no license will be issued to BMS Motorsports, Inc., and Putnam City Motors, Inc. to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 7033 Beach Boulevard, Jacksonville (Duval County), Florida 32216. DONE AND ORDERED this Lh day of June, 2009, in Tallahassee, Leon County, Florida. LA. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the tis Zé Potash, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Terry Henson Scooter Boutique, Inc. 12526 Masters Ridge Drive Jacksonville, Florida 32225 Patrick Kim BMS Motorsports, Inc. 1201 Jellick Avenue City of Industry, California 91748 Pete Biltoc Claudio Biltoc Putnam City Motors, Inc. 7033 Beach Boulevard Jacksonville, Florida 32216 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 P. Michael Ruff Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
The Issue Whether J.S. Imports, Inc. should be granted a new point Mazda dealership at 631 South Military Trail, West Palm Beach, Florida, pursuant to Section 320.642, Florida Statutes.
Findings Of Fact Petitioner, Mazda Motor of America, Inc., is a manufacturer of automobiles and trucks which are distributed and sold through a network of dealerships. Under Florida law Mazda is denoted a "licensee." On January 5, 1996, a notice of publication for a new point franchise motor vehicle dealer was published which announced Mazda intends to allow the establishment of J.S. Imports, Inc., as a dealership for the sale of Mazda vehicles at 631 South Military Trail, West Palm Beach (Palm Beach County), Florida 33415. The notice further provided, in pertinent part: Mazda Motor of America, Inc., intends to engage in business with J. S. Imports, Inc., as a dealership on or after February 1, 1996. The name and address of the dealer-operator and principal investor of J. S. Imports, Inc., is: John Staluppi, Jr., 42 Davidson Lane East, West Islip, New York 11795. * * * Dealerships of the same line-make which can establish standing to protest the establishment of the new point may do so by filing a written petition or complaint with the Florida Department of Highway Safety and Motor Vehicles. Thereafter, on February 1, 1996, Respondents, Stewart Mazda, Delray Mazda, and Jupiter Dodge Mazda, filed a petition or complaint challenging the proposed new point dealer. Respondents are the existing Mazda dealerships located within Palm Beach County. There are no other same line-make motor vehicle dealerships which are physically located so as to meet or satisfy the requirements of Section 320.642(3), Florida Statutes. Thus, all dealers with the potential for standing have participated in this proceeding. Palm Beach County is a county with more than 300,000 population. Respondent, Stewart Mazda, is located at 2001 South Dixie Highway, West Palm Beach, Florida, and is within 12.5 miles of the proposed location for the new point site. In fact, the Stewart dealership is within five miles of the proposed new point. Respondent, Delray Mazda, is not located within 12.5 miles of the proposed location. Nevertheless, Delray Mazda established that during any 12 month period of the 36 month period preceding the filing of the licensee's application for the proposed dealer Delray Mazda made 25% of its retail sales of new motor vehicles to persons whose registered household addresses were within a radius of 12.5 miles of the proposed site. Respondent, Jupiter Dodge Mazda, is not within 12.5 miles of the location for the proposed new dealership yet it also met the sales standard described in paragraph 7. The proposed new motor vehicle dealer, J.S. Imports, Inc., is owned by John Staluppi, Jr., the son of John Staluppi. No other person or entity owns more than a 10% interest in JSI. It is proposed that J.S. Imports, Inc. will be located at 631 South Military Trail, West Palm Beach. Such real property is part of an automobile mall or auto mall (a cluster of automobile dealerships) which is owned or controlled by John Staluppi. The new Mazda vehicle sales facility would be located at 631 South Military Trail; however, the service facility for the dealership would be located elsewhere within a shared space at 561 South Military Trail, West Palm Beach. Both parcels are owned or controlled by John Staluppi. Both parcels are part of the same auto mall. As part of its documentation to establish the dealership, J.S. Imports, Inc. (JSI) submitted an unsigned lease for the subject property between John Staluppi and the proposed dealer. On or about October 25, 1996, just prior to this case going to hearing, John Staluppi entered into an agreement to sell the assets of the automobile dealerships located within the auto mall. He also agreed to lease the real estate upon which they are located. The lease included the sites for the new Mazda point as well as the service location. Without going into details of the agreement which are not material to the issues of this case, and without listing all of the corporate entities involved in the transaction, the principals in this new agreement were John Staluppi and Terry Taylor. Material to this case, however, is the covenant between Mr. Taylor and John Staluppi, Jr. Those parties reached an agreement to sublease the real estate at 631 South Military Trail and the service department at 561 South Military Trail, West Palm Beach. Such agreement to sublease was also executed October 25, 1996. Based upon the foregoing, as of October 25, 1996, the proposed site for the Mazda new point dealer continued to be 631 South Military Trail with service work to be at 561. These sites are identical to the information submitted by the applicant to the Department of Highway Safety and Motor Vehicles. This information was also disclosed to Respondents during discovery of the case, prior to the prehearing stipulation. Subsequently, the transaction between Mr. Taylor and John Staluppi was abandoned. Mr. Taylor’s deposit on the transaction was refunded. Apparently, these parties no longer intend to abide by the terms of the asset purchase agreement. JSI does not own the proposed site. If approved, JSI will lease the property from John Staluppi or entities he owns or controls. As of the time of hearing, JSI did not have a signed lease for the subject property. Typically, Mazda does not submit applications for new point dealerships without some documentation substantiating control of the proposed site. A proposed dealer would normally either own or control the proposed site. Control of the site may be shown by a lease, an option to purchase or an option to lease. In this instance, Mazda presumed the proposed site would be secured through the efforts of John Staluppi, Jr. on behalf of his company which would lease from his father. Moreover, Mazda believes its agreement with JSI (for the applicant dealer to reimburse it for costs or expenses incurred should the dealership effort fail due to an act or omission of JSI) adequately protected its interests in this regard. As of the dates of filing the application for a new point dealership, the notice of same, and the hearing in this cause, no person or entity, other than John Staluppi, Jr., had a beneficial ownership interest in the proposed dealership. To determine whether an additional same line-make dealer should be approved, the existing network of motor vehicle dealers must be evaluated to determine whether they are providing adequate representation to the community or territory. The applicable statutory criteria do not define "adequate representation" nor the "community or territory." Typically, sales data of past dealership performance is utilized by all parties to establish a community or territory (Comm/Terr) and to evaluate the dealers' effectiveness. In this case how the Comm/Terr should be defined is disputed by the parties. Although entitled to weight in the consideration of how the Comm/Terr should be defined, the dealer agreements with the three existing dealers (Respondents) do not assign an area by geographical boundaries. Respondents believe the Comm/Terr, based upon their interpretation of their agreements, should be defined as Palm Beach County as a whole. In contrast, Mazda studies have defined the market for these dealers in different ways; however, it believes the Comm/Terr should be Palm Beach County excluding the primary market area (PMA) ascribed to Jupiter Dodge Mazda. In making this determination, Mazda constructed the PMAs for the existing dealers as well as the new point (or open point) which has been designated as the Staluppi PMA. Within the Staluppi PMA it is presumed that dealer would have a competitive advantage in the market. Similarly, within the Stewart PMA that dealer would have the competitive edge due to customer preference and convenience. The actual shopping patterns of Mazda customers was also assessed. In this case, the three dealers are located in three distinct geographical areas: one toward the northern boundary of the county at Jupiter; one to the south at Delray; and one in the eastern central portion at downtown West Palm Beach. The proposed Staluppi/JSI site is west of the Stewart location. Based upon the actual shopping patterns the majority of the sales by these three existing dealers are made to customers in the same county. Because few of Mazda's customers come from adjacent counties, the largest area which should be used to define the Comm/Terr is the county itself. Within Palm Beach County there are also identifiable plots associated with the three dealers which show that while Stewart and Delray are connected to the JSI site (via established purchasing patterns), Jupiter is not. For this reason, Mazda's expert in rendering his initial opinions regarding this matter excluded Jupiter from the Comm/Terr. This approach has been deemed persuasive. Currently, there are three clusters of automobile and truck dealerships within the Palm Beach Comm/Terr: Delray, where Mazda is now located; Military Trail/Okeechobee Boulevard, where Mazda wants to be located; and North Lake Boulevard. Eighty percent of the customers who shop for new cars, regardless of brand, go to one of the three clusters. Mazda is not represented in two of these popular shopping venues. Mazda and Dodge are the only brands offered in Jupiter. Less than 5% of the customers from the remainder of Palm Beach County (away from the Jupiter PMA) went to Jupiter to purchase a new vehicle. To determine a reasonable expected market penetration standard, it is appropriate to exclude certain factors, such as the consumer preferences for certain types of vehicles (independent of brand) over which the dealers have no control. Market penetration is the traditional standard used to measure adequacy of representation because it reflects the competitive efforts of the competing dealers. Registration data of all brands is used to comprise a single indicator called market share, which is an objective and accurate measure of market activity. Registration data reflects actual consumer purchases. Actual registrations account for demographic characteristics, including age, income, education, size-class preferences, and product popularity. Market penetration for any area is computed utilizing all registrations to addresses in the area, regardless of the location of the selling dealer. After registration data is compiled, the performance of the Comm/Terr can be compared to another market area (allowing for differences in segment popularity). In this case, Mazda compared the Palm Beach Comm/Terr to the Miami/Ft. Lauderdale market. Typically, manufacturers and companies which compile data regarding vehicle sales classify new vehicle sales into segments. These segments list models which are comparable to one another and are, presumably, competing for the same customer. Mazda classifies its vehicles into nine segments. Although it could be argued Mazda is ineffective against Ford, General Motors, and Chrysler, part of that theoretical ineffectiveness is due to the lack or absence of entries from Mazda into markets or segments flooded by those make vehicles. For example, Mazda does not have a vehicle to compete with a Chevrolet Suburban. Nevertheless, on a segment-by-segment basis where Mazda competes with an entry comparable to the other line-makes (in size and class) Mazda's effectiveness can be computed and demonstrated. By measuring Mazda's penetration in each segment achieved in the Miami/Ft. Lauderdale area, applied to the industry data available in each segment in the Staluppi/JSI PMA, an appropriate standard is established for what could be expected if the latter were receiving adequate representation. Similarly, by applying the penetration rate to the Palm Beach Comm/Terr as a whole it is possible to establish what could be expected if the Comm/Terr were receiving adequate representation. By considering the segment analysis the process takes into account differences in consumer preferences between markets as to the popularity of segments, and thereby gives a more accurate measure of what Mazda's reasonably expected market penetration should be. Utilizing this segment analysis, the reasonably expected 1995 Mazda market share in the Staluppi/JSI PMA was 5.97%. The actual penetration for Mazda in this PMA was 3.81%. Similarly, in the Palm Beach Comm/Terr in 1995, Mazda's reasonably expected share in the segments was 6.21%. The actual penetration for Mazda in the Comm/Terr was 4.49%. Alternatively, adding Jupiter to the Palm Beach Comm/Terr, Mazda's reasonably expected market share in 1995 was 6.19%. The actual penetration in the Palm Beach Comm/Terr (adding Jupiter) was 4.65%. Thus, in each analysis Mazda performance fell short of its reasonably expected penetration. With a properly constructed dealer network, containing the appropriate number of dealerships in proper locations, it is reasonable to expect the dealer network in Palm Beach County to perform as well as the dealer network in Miami/Fort Lauderdale after adjusting for the local consumer patterns that make Palm Beach different from the other area. Net shortfall is the number of additional Mazdas that would have to be registered in order to equal the expected level based on average performance across an area. On the basis of the net shortfall in units, or units required to be registered in order to bring the Staluppi/JSI PMA up to the expected performance, the 1995 shortfall was 246 units. In reviewing the Palm Beach Comm/Terr as a whole over the three year period from 1993 to 1995, the efficiency has changed from 70.1% to 72.4%. For the Comm/Terr plus Jupiter, the efficiency has changed from 68.6% to 75.2% during the three years immediately following the insertion of Jupiter Dodge Mazda. Mazda was not receiving adequate representation from the standpoint of not achieving reasonably expected market share. That conclusion is the same whether the area under review is the Staluppi/JSI PMA, the larger Palm Beach Comm/Terr, or the Palm Beach Comm/Terr with Jupiter included. Increases in performance in 1996 (after the existing dealers knew an additional dealer was being sought for the Palm Beach Comm/Terr) while commendable do not negate the historical pattern of providing inadequate representation. The growth of population and households in Palm Beach County has been predominately to the west and central portions of the county and throughout the Delray Beach area. The proposed Staluppi/JSI PMA has also experienced rapid growth in households and population which is expected to continue. Among Mazda buyers, 28.5% thought that the location of the dealer was extremely important; 35.1% thought it was very important; 22.8% thought it was somewhat important; whereas only 8.7% thought it was not important, and 4.9% not important at all. The Military Trail auto mall into which JSI proposes to open the additional Mazda dealership, now contains Toyota, Jeep Eagle, Chrysler Plymouth, Nissan, Infiniti, Kia, GMC, Saturn, Ford and Isuzu. Other brands considered part of this cluster are on Okeechobee Boulevard. They are VW, Hyundai, Acura, Subaru, Volvo, Oldsmobile, Buick, Audi, BMW, Lexis, Lincoln Mercury, Chevrolet, Dodge, Mitsubishi and Mercedes Benz. Mazda would be required to have 3.2 dealerships in order to have the same share of the franchises in the Palm Beach Comm/Terr as it has in the Miami/Ft. Lauderdale area. Because Jupiter Dodge Mazda does not serve the Palm Beach Comm/Terr in a meaningful way, the Comm/Terr has two Mazda dealerships, and needs at least one more dealership to have a reasonable opportunity to receive adequate interbrand competition and gain expected market share. The likely cause of the current inadequacy of performance for the Palm Beach Comm/Terr is insufficient dealer count and poor dealer location. Without a dealer in the Staluppi/JSI PMA, consumers average 9.9 miles from the nearest Mazda dealer, which is higher than the major competitors located in the Staluppi/JSI PMA. With the addition of a Mazda dealer in the Staluppi/JSI PMA customers will be 7.2 miles, on average, to the nearest Mazda dealer a distance which should be more competitive with other brands such as Ford (3.9 miles), Chevrolet (4.7 miles), Nissan (7.2 miles), and Toyota (7.2 miles). Optimal location analysis also demonstrates that the proposed location would maximize customer convenience. If the J. S. Imports dealership is allowed to "float" in the Palm Beach Comm/Terr, while the other dealer locations are fixed, the location which would maximize customer convenience is near the proposed site. The proposed location is near the optimal location, and in the midst of a cluster of dealerships where approximately 30% of the sales of all Palm Beach County dealers are made. The proposed site is good in terms of solving the customer convenience problem in the area, and providing Mazda a presence in the cluster where many sales are made. The addition of a dealership will likely benefit consumers and the public interest. It will provide the growing population of the Staluppi/JSI PMA with a more convenient place to shop for Mazdas and more convenient Mazda service. It will take Mazda to a growing cluster of dealerships allowing customers a one stop opportunity to comparison shop Mazda and its competitors. Moreover, with increased interbrand and intrabrand competition Mazda and the existing dealers should be able to improve sales penetration and take advantage of the available market for Mazda products. Therefore, because of the large untapped opportunity for Mazda in the Palm Beach Comm/Terr as a whole, in the Comm/Terr plus Jupiter, and in the "identifiable plot" known as the Staluppi/JSI PMA, the addition of a new dealer should not cause a decrease in the existing Mazda dealers' sales over the long term. The addition should have a positive impact upon the overall sales opportunities for all the Mazda dealers. If you compute the total lost opportunity for sales in this market (941 units) and allocate a portion of sales to the Staluppi/JSI PMA (555), the remainder would be available to the existing dealers of the Comm/Terr. This remainder of the lost opportunity, (467 units utilizing the average penetration profile; 386 using the Jupiter profile), would be available for all Palm Beach Mazda dealers. Therefore, the proposed addition of a dealership can take place without taking any sales from existing Mazda dealers. The existing dealers should increase their sales because a large number of customers are now shopping in the Northlake and Okeechobee/Military Trail clusters, and could not previously consider Mazda conveniently because of the lack of a dealer. Having a dealer in the Okeechobee/Military Trail cluster should stimulate interest in Mazdas. All existing dealers have made substantial financial investments to perform their obligations under their dealers' agreements. In Stewart's case, the total investment is close to $5,000,000. Stewart's real estate and building are valued at approximately $3,000,000. Jupiter Dodge Mazda has about $1,000,000 invested in its dealership. Delray Mazda has approximately $3,500,000 invested in its dealership. All three existing dealerships should benefit from an increased Mazda presence in the market place. The reasonably expected market penetration for Mazda should improve with an additional dealership at the Staluppi auto mall. Mazda has not denied its existing dealers an opportunity for reasonable growth, expansion or relocation. In fact, Mazda urged Stewart to establish the dealership at the proposed location. Only when efforts with Stewart failed did Mazda go outside the existing dealers for an operator for the additional point. Mazda has not attempted to coerce the existing dealers into consenting to the additional dealership. In reaching this conclusion the single incident complained of by one existing dealer (that Mazda withdrew some advertising support) has been considered but is not persuasive that Mazda has acted improperly in its efforts to establish the new point. The distance travel time, considering traffic patterns and accessibility, between the proposed site and its nearest same line-make dealer (Stewart) is approximately ten minutes. While geographically closer than other dealers of same line-make vehicles, traffic and accessibility put the proposed site and Stewart at a reasonable distance. No evidence in this case supports a conclusion that consumers could have the same benefits offered by the proposed dealership from other changes. No evidence suggests the existing dealers are not in compliance with their dealer agreements. Intrabrand and interbrand competition should improve with the establishment of the new point. Service and sales facilities will be more convenient to customers. All existing dealers make sales into the area of the proposed site. With anticipated population growth and market availability, any sales lost to the new point should be offset by Mazda’s increased market presence, improved market penetration, and greater overall sales for all dealerships.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Motor Vehicles and Highway Safety enter a final order approving the new point dealership sought by Mazda Motor of America on behalf of J.S. Imports, Inc. DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997. COPIES FURNISHED: Dean Bunch, Esquire Sutherland, Asbill & Brennan, L.L.P. 909 East Park Avenue Tallahassee, Florida 32301 James D. Adams, Esquire Adams & Quinton 7300 West Camino Real Camino Real Centre Boca Raton, Florida 33433 Douglas E. Thompson Post Office Box 16480 West Palm Beach, Florida 33416 Dean J. Rosenbach Lewis, Vegosen, Rosenbach & Silber, P.A. Post Office Box 4388 West Palm Beach, Florida 33402-4388 Michael J. Alderman, Esquire Division of Motor Vehicles Neil Kirkman Building, Room A-432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Division of Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500
