Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Edward T. Bauer, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Petitioner’s Notice Of Withdrawal Of Notice Of Establishment And Motion To Dismiss, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to General Motors LLC and Sheehan Buick GMC, Inc. for the sale and service of automobiles of the line make Chevrolet (CHEV) at 2800 North Federal Highway, Lighthouse Point (Broward County), Florida 33064. Filed December 3, 2010 4:42 PM Division of Administrative Hearings _ oa , DONE AND ORDERED this 2 =~ day of December, 2010, in Tallahassee, Leon County, Florida. arl 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 ef Motor Vehicles this day of December, 2010. 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: Robert C. Byerts, Esquire Bass Sox Mercer Post Office Box 14497 Tallahassee, Florida 32317 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 J. Thomas Sheehan Sheehan Buick Pontiac GMC, Inc. 2800 North Federal Highway Lighthouse Point, Florida 33064 Robert Craig Spickard, Esquire Kurkin Forehand Brandes LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether Subaru of America, Inc. (Subaru) is entitled to an exemption under Section 320.642(5)(a), Florida Statutes (1991), from the protest filed by Performance Motors, Inc., d/b/a Lindell Subaru (Lindell) to Subaru's appointment of Conley Subaru, Inc. (Conley) as the successor motor vehicle dealer to Tom Stimus Chrysler Plymouth, Inc., d/b/a Tom Stimus Subaru (Stimus) in Bradenton, Manatee County, Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: 1. Lindell is a Subaru dealer located at 3480 Bee Ridge Road, Sarasota, Sarasota County, Florida. 2 Conley has been approved by Subura to be a Subaru dealer if Conley's application is approved by the Department. Conley will be located at 800 Cortes Road West, Bradenton, Manatee County, Florida. Stimus was a previous Subaru dealer located 2503 First Street West, Bradenton, Manatee County, Florida. Stimus's former location and Conley's present location are within two miles of each other. Stimus was a Subaru dealer with an area responsibility consisting of Manatee County, Florida, pursuant to a dealership agreement with Subaru dated June 8, 1990. Before the termination of its Subaru dealership agreement, Stimus filed a petition under Chapter 11 of the United States Bankruptcy Code in the case of In re Tom Stimus Chrysler Plymouth, Inc., in the United States Bankruptcy Court for the Middle District of Florida, Tampa Division, Case No. 91-7864-8P1. Upon Stimus filing its petition with, and the petition being accepted by, the United States Bankruptcy Court (bankruptcy court), all of Stimus' assets came under the jurisdiction of the bankruptcy court. On June 14, 1991, the day that Stimus filed its bankruptcy petition, stay relief was ordered. Stimus' bankruptcy petition operated as a stay of any action by Subaru to terminate Stimus' dealership agreement, until such time as the bankruptcy court granted relief from the stay to Subaru. On August 19, 1991, the bankruptcy court entered an order directing Stimus not move, sell, transfer or otherwise dispose of any of its assets and to cease all business operations effective immediately. Stimus ceased operations of its Subaru dealership more than 12 months prior to August 28, 1992, the date the successor dealer's (Conley) application for a license was submitted to the Department. Subaru was aware of the bankruptcy order and that Stimus had ceased doing business. On August 28, 1991, the Department cancelled Stimus' license as a dealer in franchised motor vehicles. On October 30, 1991, Stimus filed a motion to assume and assign executory contract (Subaru of America). By this motion, Stimus sought bankruptcy court permission to assign its Subaru franchise to Joseph Iacuone. Subaru filed its response to Stimus' motion on November 12, 1991, and its supplemental response on December 2, 1991. On January 2, 1992, bankruptcy court entered an order granting Stimus' motion to assume and assign, allowing Subaru 45 days to approve or disapprove of the proposed franchise. On February 12, 1992, Subaru filed its notice of the disapproval of the proposed franchise transfer to Joseph Iacuone. Thereafter, on March 12, 1992, Subaru filed a motion for relief from the automatic stay to terminate Stimus' dealer sales and service agreement. On May 13, 1992, the bankruptcy court entered an Order Modifying Automatic Stay to Permit Subaru of America - Southeast Region to Terminate its Dealership Agreement with Debtor (Stimus). Pursuant to the bankruptcy court order, Subaru, by letter dated May 20, 1992, terminated Stimus' dealership agreement effective June 4, 1992. By letter to the Department dated August 27, 1992, and received by the Department on September 1, 1992, Subaru approved of the appointment of Conley as the successor Subaru dealer to Stimus in Bradenton, Manatee County, Florida. By this letter, Subaru requested that the appointment of Conley be exempt from protest pursuant to Section 320.642(5)(a), Florida Statutes (1991). On August 28, 1992, Conley submitted its application for license as a motor vehicle dealer to the Department at its Region VIII office located at 323 10th Avenue West, Palmetto, Florida 34221. Region VIII includes Manatee County, Florida. The Department refused to accept Conley's application package on August 28, 1992, and the application was not filed on that date, for the following reasons: (a) the package did not include an original dealer bond as required by the Department, but only a copy thereof; (b) the package did not include a filed copy of the applicant's articles of incorporation as required by the Department, but only an unfiled copy thereof; (c) the package did not include evidence of completion of the dealer training program, as required by the Department and; (d) the package did not include a facility inspection report, as required by the Department. The Department subsequently accepted Conley's application package on December 8, 1992. By letter dated October 19, 1992, the Department issued a notice to Lindell, among others, of proposed agency action, i.e., the issuance of a motor vehicle dealer license to Conley to operate as a Subaru dealer in Bradenton, Manatee County, Florida. Lindell filed a notice of protest with the Department on or about November 3, 1992. The Department has refused to issue a motor vehicle dealer license to Conley based upon the protest by Lindell. Lindell is the only Subaru dealer located in Sarasota County, Florida. Stimus was the only Subaru dealer located in Manatee County, Florida. Presently, there is no Subaru dealer located in Manatee County, Florida. Should a license be issued to Conley, it would be the only Subaru dealer located in Manatee County, Florida. 25 Conley's Subaru dealership will be located on the premises (10 acres) where Conley's Buick dealership is presently located. Conley will service the Subaru automobiles in it existing service area and display new Subaru automobiles in its existing showroom. The balance of the Subaru automobiles not in the showroom will be located in a specific area on the premises. The specific area has yet to be designated by Conley. Conley is ready, willing and able to open as the successor Subaru dealer to Stimus in Bradenton, Manatee County, Florida, except for the issuance of its motor vehicle dealer license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, Department of Highway Safety and Motor Vehicles, enter a Final Order granting Petitioners exemption from protest in accordance with Section 320.642(5)(a), Florida Statutes, and dismissing the protest filed by Lindell. DONE AND ENTERED this 3rd day of November, 1993, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6942 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner Subaru's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 19 have been adopted in substance as modified in Findings of Fact 1 through 26. Respondent Lindell's Proposed Findings of Fact: Respondent Lindell presented its proposed findings of fact in unnumbered paragraphs contained in its memorandum of law under the title "Statement of Facts". The paragraphs have been numbered 1 through 9 for purposes of this Appendix. Proposed finding of fact 1 is covered in the Preliminary Statement. Proposed findings of fact 2 through 9 have been adopted in substance as modified in Findings of Fact 1 through 26. COPIES FURNISHED: Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 John M. Brennan, Esquire Post Office Box 285 Orlando, Florida 32802-0285 Damian M. Ozark, Esquire 2401 Manatee Avenue Bradenton, Florida 34205 J. Michael Lindell, Esquire 620 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Enoch Jon Whitney, Esquire General Counsel Neil Kirkman Building Tallahasse, Florida 32399-0500 Mike Alderman, Esquire Office of thew General Counsel Neil Kirkman Building Tallahassee, Florida 32399-0500
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 The issues in this case are whether Petitioner has standing to protest the establishment of an additional motorcycle dealership; and, if so, whether Petitioner is adequately representing this line of motorcycles in the relevant territory or community pursuant to section 320.642, Florida Statutes (2018).1/
Findings Of Fact Tropical Scooters is located at 11594 Seminole Boulevard, Largo, Florida 33778. It has been in the business of selling scooters and other motorized vehicles for ten years. Michele Stanley is the owner and manager of Tropical Scooters and she has knowledge regarding its purchasing and franchise agreements, inventory, and sales figures. Although no franchise agreement was offered into evidence, Ms. Stanley testified Petitioner has an agreement with a distributor, Pacific Rim International, d/b/a Ice Bear ATV (Ice Bear), to sell YNGF motorcycles. Ice Bear has been supplying Petitioner with YNGF motorcycles for approximately two and a half years. Tropical Scooters has had a good relationship with this distributor and has encountered no problems selling the YNGF line. In the last 18 months, Tropical Scooters has sold 137 YNGF units and currently has 23 units at its showroom. Ms. Stanley discovered that Respondents had applied with the Department to establish a YNGF motorcycle dealership at 9145 66th Street North, Pinellas Park, Florida 33782, from the February 22, 2018, notice published by the Department in the Florida Administrative Register.2/ Subsequently, Tropical Scooters filed a timely complaint with the Department challenging Respondents’ application. Ms. Stanley was familiar with the proposed location of the new dealership and stated that it was four miles “as the crow flies” from the Tropical Scooters showroom. Tropical Scooters is an existing dealership that sells YNGF motorcycles and is within 12.5 of the location proposed by Powersports and Motrac for the new dealership. Therefore, Tropical Scooters has standing to bring this challenge pursuant to section 320.642(3). There was no evidence that Tropical Scooters’ representation of the YGNF line of motorcycles was inadequate in its community or territory as described in section 320.642(2)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department denying the new dealership application of Respondents for the sale and service of Sanmen County Youngfu Machine Co., Ltd., vehicles at 9145 66th Street North, Pinellas Park, Pinellas County, Florida. DONE AND ENTERED this 27th day of July, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2018.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Jessica E. Varn, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this AY day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 4 day of May, 2013. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john.forehand@southmotors.net David Seymour Leibowitz, Esquire Braman Management Association 2060 Biscayne Boulevard, 2"! Floor Miami, Florida 33137 davidl|@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com Jessica E. Varn Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BMW OF NORTH AMERICA, LLC, Petitioner, vs. SOUTH MOTOR COMPANY OF DADE COUNTY, d/b/a SOUTH MOTORS BMW, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. POMPANO IMPORTS, INC., Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. POMPANO IMPORTS, INC., Respondent. a a aU OOOO ee Oe eee Case No. Case No. Case No. 12-3385 12-3386 12-3387 BMW OF NORTH AMERICA, LLC, Petitioner, vs. Case No. 12-3389 SARASOTA AUTOMOTIVE MANAGEMENT, LLC, d/b/a BMW OF SARASOTA BERT SMITH OLDSMOBILE, INC., d/b/a BERT SMITH INTERNATIONAL CAPITAL EUROCARS, INC., d/b/a CAPITAL BMW IMPORT CITY, INC., d/b/a QUALITY BMW REEVES IMPORT MOTORCARS, INC., Respondents. BMW OF NORTH AMERICA, LLC, _ Petitioner, vs. Case No. 12-3390 BRAMAN MOTORS, INC., d/b/a BRAMAN BMW PALM BEACH IMPORTS, INC., d/b/a BRAMAN MOTORCARS, Respondents. ORDER CLOSING FILES AND RELINQUISHING JURISDICTION This case came before the undersigned on the Petitioner's Notice of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, filed January 29, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for May 13 through 17, 2013, is canceled. 2. The files of the Division of Administrative Hearings are closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this llth day of February, 2013, in Tallahassee, Leon County, Florida. aw JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john. forehand@southmotors.net Dean Bunch, Esquire Nelson, Mullins, Riley, and Scarborough LLP Suite 202 3600 Maclay Boulevard, South Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com David Seymour Leibowitz, Esquire Braman Management Association 2nd Floor 2060 Biscayne Boulevard Miami, Florida 33137 davidl@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BMW OF NORTH AMERICA, LLC, Petitioner, v8. Case No. 12-3385 SOUTH MOTOR COMPANY OF DADE COUNTY, d/b/a SOUTH MOTORS BMW, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. Case No. 12-3386 POMPANO IMPORTS, INC., d/b/a Vista BMW of Pompano Beach, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. . Case No. 12-3387 POMPANO IMPORTS, INC., d/b/a Vista BMW of Coconut Creek, Respondent. Filed January 29, 2013 8:53 AM Division of Administrative Hearings BMW OF NORTH AMERICA, LLC, Petitioner, vs. SARASOTA AUTOMOTIVE MANAGEMENT, LLC, d/b/a BMW OF SARASOTA; BERT SMITH OLDSMOBILE, INC., d/b/a" BERT SMITH INTERNATIONAL; CAPITAL EUROCARS, INC., d/b/a CAPITAL BMW; IMPORT CITY, INC., d/b/a QUALITY BMW; and REEVES IMPORT MOTORCARS, INC., Respondents. BMW OF NORTH AMERICA, LLC, Petitioner, vs. BRAMAN MOTORS, INC., d/b/a BRAMAN BMV, and PALM BEACH IMPORTS, INC., d/b/a BRAMAN MOTORCARS, Respondents. Case No. 12-3389 Case No. 12-3390 NOTICE OF WITHDRAWAL OF PROPOSED DEALER AGREEMENT FROM CONSIDERATION BY RESPONDENTS AND MOTION TO DISMISS AS MOOT Comes now BMW of North America, LLC ("BMW NA") and notifies the Administrative Law Judge that it has withdrawn its notice to Respondents concerning the proposed dealer agreement which is the subject of this proceeding. withdrawal of notice, BMW NA moves to dismiss this matter as moot. motion, BMW NA states: As a result of this In support of its 1. On July 17, 2012, BMW NA notified Respondents of its intent to offer them the superseding/merged BMW Center Agreement for BMW passenger cars and BMW light trucks ("the Merged Agreement"), which was proposed to supersede, modify and replace the existing BMW Dealer Agreement for BMW passenger cars and the existing BMW SAV Center Agreement for BMW light trucks (collectively "the Existing Agreements"). 2. Respondents filed complaints with the Department of Highway Safety and Motor Vehicles ("DHSMV"), contesting the terms of the proposed Merged Agreement. These complaints were transferred by the DHSMV to the Division of Administrative Hearings. 3. On January 29, 2013, BMW NA, by letters attached hereto as Exhibit A, notified Respondents, as follows: BMW of North America, LLC ("BMW NA") hereby withdraws its notice, transmitted to you on July 17, 2012, with respect to the superseding/merged BMW Center Agreement (‘Agreement’) for BMW passenger cars and BMW light trucks. You and your successors may remain on your current forms of: dealer agreements: the BMW Dealer Agreement for BMW passenger cars (‘Old Agreement’) and the BMW SAV Center Agreement for BMW light trucks (‘SAV Center Agreement') or sign the Agreement which was offered to you, at any time in the future. 4. Inasmuch as BMW NA has withdrawn the July 17, 2012 notice that entitled Respondents to file their protests, and confirmed to Respondents that they and their successors', have the option to remain on the Existing Agreements unless, at any time in the future, they elect to sign the Merged Agreement, Respondents’ protests should now be dismissed as moot. ' Motor vehicle dealerships, and equity interests therein, are transferable to buyers as provided in Section 320.643, Florida Statutes. 3 Respectfully submitted, Lh. bL Dean Bunch dean.bunch@nelsonmullins.com C. Everett Boyd, Jr. everett. boyd@nelsonmullins.com Nelson Mullins Riley & Scarborough LLP 3600 Maclay Blvd., S., Suite 202 Tallahassee, FL 32312 Telephone: (850)907-2505 Attorneys for BMW of North America, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that the forgoing was served by electronic transmission, this at day of January, 2013, upon the following: | Jennifer Clerk, Agency Clerk clark. jennifer@hsmv.state.fl.us Dept. of Highway Safety Neil Kirkman Bldg., Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, FL 32399 John W. Forehand, Esq. john. forehand@southmotors.net 16165 South Dixie Highway Miami, FL 33157 Richard N. Sox, Esq. rsox@dealerlawyer.com Nicholas A. Bader, Esq. nbader@dealerlawyer.com 2822 Remington Green Circle Tallahassee, FL 32308 David Leibowitz, Esq. davidl@bramanmanagement.com Timothy Grecsek, Esq. timothyg@bramanmanagement.com Braman Management Association 2060 Biscayne Bivd., Second Floor Miami, FL 33137 ~ Attorney
The Issue The issue in this case is whether Petitioner's application to establish a dealership to sell motorcycles manufactured by JMSTAR Motorcycle Company should be approved.
Findings Of Fact Petitioner is a Florida-limited liability company located in Pinellas County, Florida.1 Petitioner is in the business of selling motorcycles and motorscooters. In February 2009, Petitioner submitted to DHSMV a letter of intent to establish A1 Motorscooters.com, LLC, as a new dealership for the purpose of selling JMSTAR motorscooters. Notice of that intent was duly published in the February 27, 2009, FAW, Volume 35, Number 8. In its letter of intent to DHSMV, Petitioner did not list Respondent as a dealer with standing to protest its letter of intent. That was due to the fact that Respondent did not appear on the list of licensed dealers provided to Petitioner by DHSMV (as will be discussed more fully herein). Respondent is a Florida-limited liability company doing business in Pinellas County, Florida. It sells different makes of motorcycles. On June 4, 2009, Respondent was made aware of Petitioner's letter of intent (some 98 days after Petitioner's Notice was published). Respondent immediately filed a protest, stating that Respondent was "approved" to sell the same line of motorcycles and that Respondent "just received [their] license and began selling several months ago." In October 2008, Respondent received a Final Order from DHSMV approving Respondent as a dealer for the JMSTAR line of motorcycles. That Final Order gave Respondent a preliminary approval to sell JMSTAR motorcycles, but only upon completion of the application process and issuance of a license by the Department. Respondent's license was, ultimately, issued effective April 21, 2009. Thus, at the time of the FAW Notice as to Petitioner's new dealership, Respondent had been preliminarily approved, but was not a licensed dealer of JMSTAR motorcyles. Respondent had a prior agreement with SunL Group, Inc. ("SunL"), to sell motorcycles as a franchisee or independent contractor. Under that arrangement, Respondent could sell various kinds of motorcycles, including the JMSTAR line. At some point in time, the agreement between SunL and Respondent was terminated. Further, SunL's dealership license was revoked by DHSMV on June 5, 2009. SunL was not a party to this proceeding, and no one appeared on its behalf. When Petitioner filed its letter of intent with DHSMV, it asked for and received a list of all authorized dealers of JMSTAR motorcycles so that those dealers could be appropriately notified. DHSMV provided a list to Petitioner. Respondent was not on the list because, at that time, Respondent was not yet a licensed dealer of JMSTAR motorcyles. (Apparently SunL was a licensed dealer and could have protested Petitioner's letter of intent, but there is no evidence that it did so.) Respondent did not provide any credible testimony or other competent evidence at final hearing as to the impact of Petitioner's proposed dealership on Respondent, nor were any of the review criteria set forth in Florida Statutes concerning the approval or denial of a new dealership discussed by either party.
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 Respondent, ECO Green Machine, LLC's, protest of Petitioner, A1 Motorscooter.com, LLC's, proposed dealership. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. 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, 2010.
The Issue The issue in this case is whether Vista Motors' new BMW dealership at 4401 West Sample Road, Coconut Creek, resulted from a relocation and reopening of Vista Motors' former BMW dealership at 700 North Federal Highway, Pompano Beach, in compliance with Section 320.642(5)(b), Florida Statutes, which grants certain "reopening" dealers an exemption from protest.
Findings Of Fact In 1996, Intervenor BMW of North America, LLC ("BMW NA")2 unveiled a "market strategy" to all of the BMW dealers doing business in Palm Beach, Broward, and Miami-Dade Counties (hereafter, collectively, the "South Florida Dealers") whereby each of them would be granted an additional or "satellite" BMW dealership3 provided, among other conditions, that each dealer agreed to waive its protest rights under Section 320.642, Florida Statutes, with regard to these satellite dealerships.4 The South Florida Dealers comprised three distinct business enterprises, which were often identified with reference to their respective principals: Norman Braman, Charles Dascal, and J. S. Holman. Mr. Braman held interests in BMW dealerships located in Miami and West Palm Beach. One of Mr. Braman's companies was (and is) Petitioner Palm Beach Imports, Inc., d/b/a Braman Motorcars ("Braman"), which is the dealer operating in West Palm Beach. Mr. Dascal held interests in BMW dealerships located in Broward County and in Miami. One of Mr. Dascal's companies was (and is) Intervenor Pompano Imports, Inc., d/b/a Vista Motors ("Vista"), which operated a BMW dealership in Pompano Beach until October 7, 2003, and now does business as a BMW dealer in the City of Coconut Creek, Florida. Mr. Holman was a principal in Ft. Lauderdale Imports, Ltd. ("Lauderdale"), a dealer doing business in Ft. Lauderdale. For ease of reference the South Florida Dealers will be referred to individually as Braman, Vista, and Lauderdale.5 As originally conceived and formally presented to the South Florida Dealers in December 1996, BMW NA's market strategy called for Braman to be awarded a satellite dealership in Delray Beach, a municipality which is situated in the southern part of Palm Beach County, on the coast. Vista and Lauderdale, under the original plan, would have been offered satellite locations in Broward County west of the Turnpike. BMW NA and the South Florida Dealers never reached an agreement regarding this particular strategy, however, because Vista objected to the proposed Braman satellite in Delray Beach. Notwithstanding the absence of an agreement involving all of the South Florida Dealers, at some point in 1997 Vista and BMW NA revisited the possibility, which had been discussed from time to time over the past several years, of relocating Vista's BMW dealership in Broward County from its Pompano Beach location to a better location. Vista's facility in Pompano Beach, whose street address was 700 North Federal Highway ("N. Federal Hwy"), had become outdated and cramped, having been built decades earlier, and BMW NA and Vista wanted Vista to have a larger, more modern shop. Also, moving westward would place the dealership closer to Interstate 95 and the Turnpike, making it more accessible to customers. Thus, relocation made sense for a number of reasons. In mid-1997, BMW NA approved a plan to move Vista's BMW dealership to a location in the City of Coconut Creek, Florida, which is in western Broward County. Acquiring the property to which Vista's dealership would relocate took time. An initial deal fell through due to title defects. In late 1998, Vista entered into a contract to purchase the "Lyons Creek piece," an 11-acre parcel located near the intersection of West Sample and Lyons Roads in Coconut Creek. A few months later, by letter dated March 24, 1999, BMW NA notified Braman that Vista had requested permission to relocate its dealership to this property. In the meantime, Vista launched another project: the expansion of its service department at 700 N. Federal Hwy. To accomplish this, Vista rented property, via a lease dated February 1, 1999, from a neighboring automobile dealership operated by Daewoo Motor America, Inc. ("Daewoo"). The Daewoo dealership's address was 744 N. Federal Hwy. Through its lease with Daewoo, Vista obtained the right to use 24 "work stalls" located in an automobile service center at 744 N. Federal Hwy. This arrangement increased Vista's service capacity, allowing the BMW dealership to handle a larger volume of the lucrative maintenance and repair business than had previously been possible. Vista's customers probably were not aware of the expansion, however, since all consumer transactions continued to take place at 700 N. Federal Hwy. By letter dated May 12, 1999, BMW NA notified Respondent Department Of Highway Safety and Motor Vehicles (the "Department") that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to the Lyons Creek piece. BMW NA and Vista took the position that, pursuant to Section 320.642(5), Florida Statutes,6 the proposed reopening of Vista's dealership at the new location in Coconut Creek should not be considered subject to competing dealers' administrative protests. Vista finally obtained title to the Lyons Creek piece in March 2000. Throughout the rest of the year 2000, Vista proceeded to take steps towards relocating its BMW dealership, having architectural plans for the new facilities drawn up and applying for the necessary permits. In late 2000, a new opportunity arose for Vista. A piece of property located at 4401 West Sample Road ("W. Sample Rd") in Coconut Creek became available at an attractive price. This property, which comprised approximately 19 usable acres, suited Vista's needs better than the Lyons Creek piece because, in addition to being larger, it included existing dealership facilities, having once been the location of an AutoNation dealer. Within a short time, Vista entered into a contract to purchase the property at 4401 W. Sample Rd. Now, plans to relocate Vista's BMW dealership to the Lyons Creek piece were shelved in favor of moving to AutoNation's former location. In July 2001, Vista acquired title to the land and buildings at 4401 W. Sample Rd. While Vista worked to ready the property at 4401 W. Sample Rd for use as a BMW dealership, it also pursued a deal to purchase the Daewoo property at 744 N. Federal Hwy, which was adjacent to its existing dealership. In May 2002, Vista reached a verbal agreement to buy this real estate, but Daewoo's bankruptcy complicated the deal. Litigation to enforce the oral contract ensued. In August 2002, BMW NA signed a letter of intent approving Vista's request to relocate its BMW dealership to 4401 W. Sample Rd. Soon thereafter, by letter dated September 13, 2002, BMW NA notified the Department that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd in Coconut Creek. Just as in May 1999, BMW NA and Vista took the position that this relocation should be considered exempt, pursuant to Section 320.642(5), Florida Statutes, from the protest provisions of Section 320.642. Pursuant to Section 320.642(1)(d), Florida Statutes, the Department caused BMW NA's September 13, 2002, notice of relocation to be published in the September 27, 2002, edition of the Florida Administrative Weekly. On September 27, 2002, also in accordance with Section 320.642(1)(d), the Department mailed copies of BMW NA's September 13, 2002, notice of relocation to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. Within two weeks, however, the Department mailed letters to these same dealers explaining that the proposed reopening of Vista's BMW dealership at 4401 W. Sample Rd would not be a "protestable" event after all. In November 2002, BMW NA presented the South Florida Dealers with a draft Market Action Agreement in an attempt to resurrect the market strategy that had died on the vine in 1996. The draft agreement referred to the relocation of Vista's dealership to 4401 W. Sample Rd, which was under way, and raised the possibility of Vista's resuming BMW dealership operations at 700 N. Federal Hwy at some unspecified point in time after the pending relocation. Specifically, the draft contract stated: Prior to the execution of this Agreement, Vista Motor Company has requested that BMW NA approve a relocation of its BMW [dealership] from [700 North Federal Highway] to a facility that is under development at 4401 West Sample Road, Coconut Creek, Florida (the "Sample Road Location"). This request has been approved and BMW NA provided notice of the relocation to the [Department]. It also has been approved by the [Department]. Immediately upon completion of this relocation from [700 North Federal Highway] to the Sample Road Location, the North Federal Highway Location will become an additional proposed location that is the subject of this agreement not to protest. The draft Market Action Agreement offered Braman the opportunity to open a satellite dealership in north Palm Beach County, suggesting the Town of Jupiter as the likeliest spot. Braman had already determined that zoning restrictions in Jupiter effectively forbade the opening of an automobile dealership there, however, and Braman was not interested in establishing a satellite dealership in another area north of its West Palm Beach site, preferring instead to open an additional BMW dealership in Delray Beach, which BMW NA would not approve. Thus, Braman rejected the draft Market Action Agreement of November 2002. In March 2003, BMW NA notified Braman that the proposed Market Action Agreement had failed for lack of the South Florida Dealers' unanimous consent and that BMW NA intended to move forward anyway on plans to establish satellite dealerships for Vista and Lauderdale. Braman was invited to pursue the opportunity to open a satellite dealership in north Palm Beach County. By letter dated April 14, 2003, Vista formally requested BMW NA's permission to open a satellite dealership at 744 N. Federal Hwy, where the Daewoo dealership had been located. Vista had not yet secured title to that property but was getting close. Vista asked that it be allowed to "operate out of the current facility" at 700 N. Federal Hwy if the effort to purchase the Daewoo property failed, "provided [the current facility] is renovated in accordance with BMW corporate identity standards." On April 29, 2003, BMW NA and Vista entered into a Letter of Intent authorizing Vista to open a satellite dealership at the "Satellite Location," which was defined as 700 N. Federal Hwy and 744 N. Federal Hwy. This Letter of Intent called for Vista to sell new BMW automobiles at 744 N. Federal Hwy and to sell "Certified Pre-Owned" (used) vehicles at 700 N. Federal Hwy. By letter dated May 5, 2003, BMW NA notified the Department that Vista planned to establish an additional or "supplemental" BMW dealership at 744 N. Federal Hwy, to be opened on or after June 30, 2003. As required by statute, the Department not only caused a notice to be published in the May 16, 2003, edition of the Florida Administrative Weekly regarding this putative supplemental dealership, but also it mailed copies of BMW NA's May 5, 2003, notice to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. No dealer timely protested Vista's intended opening of a supplemental dealership at 744 N. Federal Hwy. Ordinarily, following an "unprotested" notice, the Department enters a final order authorizing the issuance of a license for the proposed additional or relocated dealership upon the applicant's satisfaction of all other requirements for licensure. In this case, however, before the entry of such an order, the Department learned that 744 N. Federal Hwy and 700 N. Federal Hwy were contiguous properties. Based on this information, the Department informed BMW NA and Vista, by letter dated July 10, 2003, of its decision that because Vista was still operating a BMW dealership at 700 N. Federal Hwy, and because 744 N. Federal Hwy was immediately adjacent to the existing dealership, the proposed supplemental dealership at 744 N. Federal Hwy would be deemed an "expansion" of the existing dealership, as opposed to an "additional" dealership. The Department further concluded that: (1) a license was not needed and hence would not be issued for the expansion of Vista's dealership into 744 N. Federal Hwy; (2) the opening of the dealership that Vista proposed to establish at 4401 W. Sample Rd, which would come into being as Vista's existing dealership expanded, could not be considered exempt from protest, as previously thought, for no "relocation" would be occurring; and (3) notice and an opportunity to protest would need to be provided with respect to 4401 W. Sample Rd before a license for an additional dealership at that location could be issued. BMW NA and Vista each requested a hearing to challenge the Department's findings and conclusions, initiating, respectively, DOAH Case Nos. 03-2969 and 03-2970. These cases were subsequently consolidated, and Braman was allowed to intervene in them. On September 18, 2003, while the above-mentioned administrative litigation was pending, Vista filed an application with the Department for modification of its license, to reflect the relocation of Vista's BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd. Vista asserted that the planned reopening at 4401 W. Sample Rd would not be subject to protest, noting in its cover letter to the Department, dated September 12, 2003, that BMW NA had previously "notified [the Department] of the applicability of [the Section 320.642(5)] exemption via correspondence . . . dated September 13, 2002."7 On September 30, 2003, before the final hearing in the consolidated administrative proceeding, the Department, BMW NA, and Vista (but not Braman) entered into a settlement agreement. Upon being advised of the settlement, the presiding administrative law judge (not the undersigned) closed DOAH's files in Case Nos. 03-2969 and 03-2970 and relinquished jurisdiction to the Department. Pursuant to the referenced settlement agreement, Vista notified the Department by letter dated October 7, 2003, that Vista would cease all BMW dealership operations at 700 N. Federal Hwy at the close of business that day and would commence BMW dealership operations at 4401 W. Sample Rd on October 8, 2003. Promptly upon receipt of this notice, the Department modified Vista's motor vehicle dealer license to permit Vista to conduct BMW dealership activities at 4401 W. Sample Rd. This modification effectively "de-licensed" Vista as a BMW dealer at 700 N. Federal Hwy. On October 7, 2003, as promised, Vista stopped selling and servicing BMW automobiles at 700 N. Federal Hwy. and moved its dealership to 4401 W. Sample Rd.8 To effect the move, Vista relocated its inventory of new and used BMW vehicles, along with other line-make used automobiles that had been taken in trade for BMW vehicles, plus BMW-specific equipment, tools, and parts. Employees of Vista's BMW dealership were transferred to the new worksite. On October 8, 2003, Vista started selling and servicing BMW passenger cars and BMW light trucks at 4401 W. Sample Rd.9 It is undisputed that from October 8, 2003, through the final hearing in this cause, Vista did not conduct any BMW- related dealership operations at the N. Federal Hwy location. In other words, Vista's BMW dealership was continuously "closed" during that period of time.10 By letter dated October 15, 2003, in accordance with the settlement agreement referenced above, the Department notified BMW NA and Vista that it intended not to issue Vista a license to operate a BMW dealership at 744 N. Federal Hwy unless and until (a) Vista first relocated to 4401 W. Sample Rd and thereafter BMW NA gave the Department another notice of its intent to allow Vista to open a dealership at 744 N. Federal Hwy, which notice would, upon publication, create a new point of entry for substantially affected dealers to protest the latter project; and (b) all other legal requirements for licensure were met, including the failure of any protest that might timely be filed. BMW NA and Vista each timely challenged the Department's preliminary determination, initiating DOAH Case Nos. 03-4250 and 03-4277, respectively, which were consolidated and tried together before the undersigned on February 10, 2004. The resulting Recommended Order urged the Department to proceed in accordance with its previously announced intention. See BMW of North America, LLC v. Department of Highway Safety and Motor Vehicles, DOAH Case Nos. 03-4250 and 03-4257, 2004 WL 833605, *10 (Fla.Div.Admin.Hrgs. Apr. 15, 2004). On May 3, 2004, the Department adopted the Recommended Order as its Final Order. See Final Order No. HSMV 04-224-FOF-DMV (Fla.Dept. H.S.M.V. May 3, 2004). As of the final hearing in this case, no new notice had been provided to the Department of BMW NA's intention to permit Vista to establish an additional BMW dealership at 700- 744 N. Federal Hwy. Nevertheless, the evidence introduced at hearing shows that, as of early May 2004, BMW NA and Vista were still planning for Vista someday to open a BMW dealership at the former location. Vocabulary To facilitate the ensuing discussion, it will be helpful to develop a vocabulary tailored to the facts and issues presented. As used herein, the term "source site" will refer to the location (i.e. the place) from which a dealership has been, or will be, moved. Thus, 700 N. Federal Hwy is (or is claimed to be) a source site. The term "source dealership" shall mean a dealership that will be relocated to another place. Thus, a source dealership exists, as such, only at a source site. In this case, the BMW dealership that Vista operated at 700 N. Federal Hwy until October 7, 2003, was (or is claimed to have been) a source dealership. The term "target site" shall refer to any location to which a source dealership has been, or will be, moved. Here, then, 4401 W. Sample Rd is (or is claimed to be) a target site. A dealership established, or proposed to be opened, at a target site will be called a "target dealership." Thus, a target dealership exists, as such, only at a target site. Vista's presently licensed BMW dealership at 4401 W. Sample Rd is (or is claimed to be) as target dealership. It should be kept in mind that the terms "source dealership" and "target dealership" refer to two sides of the same coin——not to two separate coins. This is because, to speak of relocating or moving a dealership from one place to another is to imply, necessarily, that the source dealership and the target dealership are in some meaningful senses the same dealership (call it the "source-target dealership"), located first at one place (the source site), then at another (the target site). Indeed, § 320.642(5) requires that the reopening dealership be the same dealership11 (if it is not a successor dealership12) for the exemption to apply.13 The bottom line is, if the source dealership and the target dealership are not the same dealership, then the exemption cannot apply. Id. Imagining the source-target dealership as a unity is difficult, however, because one of the chief characteristics that define any dealership is its location. (Other distinguishing features include, without limitation, the identity of the dealer and the line-make vehicles being offered for sale.) Indeed, most people would consider a dealership located at one place to be separate and distinct from a dealership located somewhere else, even if the two were owned and operated by the same dealer and authorized to sell the same line-make vehicles. Of course, location cannot be moved, which raises the question: How can the source dealership and the target dealership really be the same dealership? Without attempting to answer that question completely, it is clear that maintaining the unity of the source-target dealership requires minimally that the source-target dealership have an effective market presence——that is, be licensed to operate and open for business——at but one place at a time, either the source location or the target location. In other words, however this "coin" is ultimately defined, logically it must be, at any given moment, either "heads" up or "tails" up, not heads and tails simultaneously. Therefore, whatever else a true "relocation" entails, i.e. however that term and its cognates are ultimately defined, it can be said at a minimum that a true relocation is not complete until the source dealership disappears as such, having been turned into the target dealership. One more term before moving on: "backfill dealership" shall refer to a dealership that is or will be: (a) opened at a source site after the relocation from that site of the source- target dealership; (b) owned and operated by, or under the effective control of, the same dealer who owns and operates or effectively controls the source-target dealership, which dealership is now present in the marketplace solely as a target dealership; and (c) offering for sale the same line-make vehicles as the source-target dealership. In this case, the BMW dealership that Vista plans to open at 700-744 N. Federal Hwy would be a backfill dealership. Having formulated a vocabulary, the central disputes in this case can easily be identified. It should be readily apparent that an attempt to establish a backfill dealership calls into question the genuineness of the previous relocation of the source-target dealership from the source site to the target site. This is because the opening of a backfill dealership results in the market presence of two symbiotic dealerships——an outcome not obviously distinguishable from that which would obtain if, instead of relocating the source-target dealership, the dealer had simply opened an additional dealership to complement his existing dealership. Put another way, to continue with the earlier metaphor, the net result is the presence of two coins where before there was one. The question thus becomes whether these coins should be labeled, respectively, (a) backfill dealership and source-target dealership or (b) existing dealership and additional dealership. Incipient Policies BMW NA and Vista are the first distributor and dealer to attempt to execute an exempt relocation-backfill maneuver in Florida. In the course of responding to the issues raised by this novel use of Section 320.642(5), the Department has developed several policies that interpret this exemption as applied to the facts at hand. For purposes of discussion, the relevant incipient policies can be fairly described14 as follows: A dealership that is opened at a site contiguous to the source site from which a source dealership of the same line-make was relocated will be treated as a backfill dealership, provided the two dealerships are under common ownership or control. Establishing a backfill dealership does not necessarily defeat a prior claim of relocation-exemption; rather, under certain circumstances, a dealer can take advantage of the relocation-exemption and also establish a backfill dealership. A backfill dealership does not defeat a prior claim of relocation-exemption if the following requirements are met: There was a "relocation in fact" of the source dealership from the source site to the target site. A "relocation in fact" has occurred when, at a minimum, all of the following have happened: The source dealership's license was modified to show that dealership operations are now permitted only at the target site. Dealership operations at the source site completely stopped (i.e. the source dealership closed and did not reopen in the ordinary course of business). There was an actual, physical move that entailed, but was not necessarily limited to, the relocation of inventory to the target site. Notice regarding the establishment of the backfill dealership was given to the Department after the "relocation in fact" had occurred. Dealership operations at the source site were not resumed (i.e. the backfill dealership did not open to the public for business) until after the protest period associated with the backfill dealership formally concluded and a license authorizing the backfill dealership was issued. Braman's Theory of the Case The linchpin of Braman's theory of the case is its contention that, for a relocation to fall within the Section 320.642(5) exemption, the distributor and the dealer claiming the exemption must have formed, as of the date of notifying the Department about the relocation, a specific intent regarding the dealer's future plans vis-à-vis the source site——or at least they must not have formed certain intentions relative thereto. Stating the requisite intention affirmatively, Braman suggests that the distributor and dealer must intend to "abandon" the source site, i.e. to leave the source site with the intention of never again establishing another dealership there of the same line-make as the source dealership. Alternatively, Braman argues that, at a minimum, the distributor and dealer must not have formed the intention of opening a backfill dealership. On the foregoing premise, Braman argues that BMW NA and Vista never intended for Vista to "relocate" its BMW dealership to 4401 W. Sample Rd within the strictures of Section 320.642(5), because they intended, alternatively, (a) for Vista's BMW dealership at N. Federal Hwy to remain open and never close; (b) for Vista's BMW dealership at N. Federal Hwy to open simultaneously with the opening of a BMW dealership at 4401 W. Sample Rd; or (c) for Vista's BMW dealership at N. Federal Hwy to open as soon as possible after the opening of a BMW dealership at 4401 W. Sample Rd. Braman asserts that the intentions of BMW NA and Vista render the BMW dealership at 4401 N. Federal Hwy ineligible for the relocation-exemption. Braman then goes a step farther, contending that BMW NA's September 13, 2002, notice to the Department, which announced that Vista would relocate its BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd, was false and even fraudulent. Proof of this alleged deception, according to Braman, reached the Department in May 2003 in the form of BMW NA's notice regarding the proposal to establish Vista's backfill dealership at 744 N. Federal Hwy. Braman claims that when the Department received Braman's May 5, 2003, notice, it should immediately have published a notice in the Florida Administrative Weekly that Vista's BMW dealership at 4401 W. Sample Rd was subject to protest. Although Braman has expended a great deal of effort trying to depict BMW NA's September 13, 2002, notice as "false" and accusing BMW NA and Vista of intentionally deceiving the Department regarding their "true" plans, Braman's "deception theory" is subordinate to its contention that the relocation- exemption can only be claimed properly by distributors and dealers having a specific intent. That Braman's "deception theory" is dependent on its "specific intent theory" is shown by observing that if the specific intent theory were legally correct, and if further (as Braman asserts) BMW NA and Vista did not in fact have the requisite specific intent, then it would be irrelevant whether BMW NA and Vista also sought to deceive the Department15, for their intentions regarding 700-744 N. Federal Hwy would render Section 320.642(5) inapplicable, no matter what.16 On the other hand, if Braman were wrong concerning the specific intent requirement it advocates, then BMW NA's notice to the Department regarding the relocation of Vista's BMW dealership could not have been false in the way Braman contends it was. In short, then, Braman effectively has staked its case on the proposition that the relocation-exemption requires a specific intent. The deception theory lends little, if any, support to Braman's primary position and therefore will not be given further attention herein. That said, Braman's "specific intent theory" logically concedes an important point, by necessary implication, which is that backfill dealerships do not necessarily defeat prior assertions of the relocation-exemption. This is because if the establishment of a backfill dealership always undid the dealer's previous reliance on the relocation-exemption, thereby exposing his target dealership to protest, then the dealer's intentions regarding the source site, whatever they might have been, would never be relevant. Simply put, to urge explicitly (as Braman does) that having the "wrong" intentions regarding the source site makes Section 320.642(5) inapplicable is to admit implicitly that harboring the "right" intentions regarding the source site keeps alive the possibility that the dealer can take advantage of the relocation-exemption and also establish a backfill dealership some day. Consequently, having put all of its eggs in the specific intent basket, Braman is not in a position to disagree with the Department's Incipient Policy "B" as described above.17 Indeed, while Braman has taken issue broadly with most of the Department's incipient policies, its only promising lines of attack proceed along two fronts. One is a somewhat secondary thrust: Braman complains that the Department's incipient policies permit the opening of a backfill dealership within 12 months after the closure of the source dealership, which opening (Braman argues) would itself be exempt from protest under Section 320.642(5). Thus, Braman asserts that the Department's Incipient Policy "C(3)," which purports to make backfill dealerships "protestable," contravenes the plain statutory language. With regard to this point, while the possibility certainly exists, it is not altogether clear that the Department would permit a backfill dealership to open within 12 months after the closure of a source dealership, because the Department has not been confronted with such a scenario. Moreover, there is no reasonable possibility that Vista will open a BMW dealership at 700-744 N. Federal Hwy on or before October 7, 2004. Therefore, although Braman has raised an interesting question about Incipient Policy "C(3)," which the undersigned will revisit below, the issue cannot be outcome determinative, because it addresses a contingency that has not occurred (and will not occur) in this case. Braman's real dispute with the Department, when all is said and done, is that the Department has chosen not to impose the specific intent requirement that Braman champions. Indeed, with the possible exception of some modifications to Incipient Policy "C(3)" to correct for the potential problem just identified, Braman could not object to the Department's incipient policies if they included a "C(1)(d)" as follows: As of the date the Department was notified about the relocation, the distributor and the dealer who claimed the relocation- exemption either specifically intended for the dealer to leave the source site and never again open another dealership there of the same line-make as the source dealership or, alternatively, had no intentions of establishing a backfill dealership. The question whether Braman's specific intent theory holds thus becomes the threshold legal issue. If the answer were negative, then Braman cannot prevail here.18 If the answer were affirmative, it would then be necessary to make ultimate factual determinations regarding BMW NA and Vista's intentions concerning 700-744 N. Federal Hwy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order confirming that Vista's new BMW dealership at 4401 W. Sample Rd, having resulted from the relocation and reopening of Vista's former BMW dealership at 700 N. Federal Hwy, which reopening occurred within 12 months after the closure of the former dealership and at a location meeting the geographical requirements of Section 320.642(5)(b), Florida Statutes, cannot be considered an additional motor vehicle dealership subject to protest. DONE AND ENTERED this 10th day of September, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2004.
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Notice Of Withdrawal Of Notice Of Establishment and Motion To Dismiss, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Notice Of Withdrawal Of Notice Of Establishment and Motion To Dismiss as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to General Motors LLC and BCSS, Ltd for the sale and service of automobiles of the line makes GMC and Buick (BUIC) at 5500 North State Road 7, Coconut Creek (Broward County), Florida 33073. Filed October 26, 2010 4:53 PM Division of Administrative Hearings. DONE AND ORDERED this zx x “day of October, 2010, in Tallahassee, Leon County, Florida. ‘arl 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 dt day of October, 2010. loti: Licmpeh cr 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/vig Copies furnished: Robert C. Byerts, Esquire Bass Sox Mercer Post Office Box 14497 Tallahassee, Florida 32317 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Alex Kurkin, Esquire Kurkin Forehand Brandes, LLP 4300 Biscayne Boulevard, Suite 305 Miami, Florida 33137 John D. C. Newton II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following relevant facts are found: In 1985, petitioner Linder Truck Center, Inc. (Linder) purchased Lakeland Frame and Axle, which was then a General Motors Corporation (GMC) Truck dealer in Lakeland, Florida. In July of 1985, Linder entered into a Dealer Sales and Service Agreement with GMC, and thereafter, entered into a replacement Agreement effective November 1, 1985. Under the terms of the Dealer Agreement and various addenda, Linder was granted a non-exclusive right to buy, sell and service certain specified light duty, medium duty and heavy duty trucks marketed by GMC. The provisions of the Agreement between Linder and GMC provide that GMC may discontinue any product at any time and its only obligation is to manufacture and deliver to the dealer accepted orders which the dealer does not elect to cancel. The Dealer Agreement and addenda delineate Linder's areas of primary responsibility (APRs) for the three types of trucks. The APRs are different for light, medium and heavy duty trucks because of the different volume base for each category. Since the volume base for heavy duty trucks is smaller, the APR for such trucks is larger in order to provide the dealer with sufficient volume base to make economically viable the dealer's heavy duty marketing and after- market support. On or about November 1, 1985, GMC certified to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) that Linder was authorized as a dealer to sell and service new motor vehicles commonly known and designated as GMC Trucks. On or about September 10, 1986, GMC notified all its truck dealers of the anticipated creation by AB Volvo and GMC of a joint venture company which would manufacture and distribute heavy duty trucks. On or about November 7, 1986, Linder received from GMC four Motor Vehicle Addenda to the Dealer Sales and Service Agreement which superseded prior addenda. At the same time, GMC delivered a letter informing Linder that GMC had agreed to form a joint venture with AB Volvo which would manufacture, assemble and distribute heavy duty trucks in the United States, and that GMC would discontinue and no longer distribute or market heavy duty trucks in the United States. The letter also stated that it was anticipated that Linder's Heavy Duty Motor Vehicle Addendum would be cancelled no later than December 31, 1987. This same letter was sent to all GMC truck dealers. By letter dated December 23, 1986, GMC notified Linder that GMC would cease offering heavy duty trucks for sale in North America on December 31, 1987, and that, consequently, the current Heavy Duty Motor Vehicle Addendum would expire on that date. The Department of Highway Safety and Motor Vehicles was likewise informed of this action. During the period ending December 31, 1987, GMC manufactured and distributed three heavy duty truck products: the Brigadier, the Astro and the General. Prior to the early 1980's, GMC held a relatively strong position in the heavy duty truck industry, with its market share being in excess of 16 percent. Its share of the market for heavy duty trucks declined precipitously to 8 percent thereafter and the manufacture and sale of its heavy duty truck models became increasingly unprofitable for GMC. It balanced the alternative of completely liquidating its hard assets formerly devoted to the manufacture and distribution on its heavy duty truck models against that of utilizing those assets as contribution with another manufacturer in a joint venture operation. Considering that it then had approximately 170,000 heavy duty trucks on the road and desiring to assure coverage and availability of service parts, GMC determined to contribute its heavy duty truck assets and other assets to form a joint venture with AB Volvo, to be known as the Volvo GM Heavy Truck Corporation. As it did with Linder, GMC provided to all its heavy duty truck dealers approximately a year's notice of the joint venture agreement with Volvo, as well as notice that GMC would cease offering heavy duty truck products for sale in North America on December 31, 1987. It also notified its dealers that a priority for the joint venture would be the selection of a dealer network to sell and service the joint venture's products. GMC's heavy duty truck dealers were advised that not all would obtain a dealer agreement for heavy duty trucks from the joint venture. At the time of the joint venture, Volvo had approximately 200 to 210 dealers for heavy duty trucks, and GMC had approximately 350 heavy truck dealers. In January of 1988, approximately 240 dealerships were awarded on behalf of the joint venture. While Linder actively sought to be selected as a Volvo GM Heavy Truck Corporation dealer, it was notified by letter dated July 30, 1987, from Volvo GM that it had not been selected as a joint venture dealer. There was no evidence adduced at the hearing to establish how many of the dealerships awarded by the joint venture were formerly GMC or formerly Volvo heavy duty truck dealers. Likewise, there was no evidence as to whether or not a dealership was awarded for Linder's former area of primary responsibility for the sale and/or service of heavy duty trucks. Pursuant to the joint venture agreement, GMC owns a 24% stock interest in Volvo GM Heavy Truck Corporation, and the remaining 76% interest is owned by Volvo North America Corporation. GMC has the option to purchase an additional 11% of the stock in 1993. GMC is a Class B stockholder, and holds 3 of the 10 seats on the Board of Directors. By majority vote of the GMC Directors, GMC does have veto powers over some 18 out of the ordinary-type decisions, such as a change in the vehicle nameplates, waivers of dividends and a sale of the company. The business of Volvo GM is to manufacture and market Class 8 vehicles (heavy duty trucks) and to sell the Volvo Line of medium duty trucks. The joint venture calls for the discontinuance by GMC of the manufacture of all heavy duty truck models, with the temporary exception of the Brigadier model. Had the Brigadier model not been manufactured during 1988, Volvo GM would not have been able to meet the demand for heavy duty trucks in 1988. That model was manufactured by GMC during 1988 under exclusive contract to the joint venture, Volvo GM Heavy Truck Corporation, for distribution by the joint venture under its own nameplate (White GMC Brigadier) and warranty. The manufacture of the Brigadier trucks was discontinued on or about December 16, 1988. Thereafter, the joint venture will design, produce and market a completely different vehicle as a replacement to sell into the market that the Brigadier previously sold into. During 1988, GMC had no involvement in the marketing of the Brigadier heavy duty truck. The joint venture had the responsibility for everything beyond production. Approximately 4,000 Brigadiers were produced in 1988, as compared with 7,000 or 8,000 during 1986 and 1987. Linder's GMC Dealer Sales and Service Agreement continues in effect, and Linder remains an authorized dealer of General Motor's light duty and medium duty trucks.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Motor Vehicles and Highway Safety enter a Final Order determining that GMC's cancellation or termination of petitioner's heavy duty truck addendum to its Dealers Sales and Service Agreement as of December 31, 1987, was not unfair or prohibited, and that petitioner's third amended complaint be dismissed. Respectfully submitted and entered this 13th of March, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1989. APPENDIX Case No. 87-5007 The parties' proposed findings of fact have been fully considered and are accepted and/or incorporated in this Recommended Order, with the following exceptions: Petitioner 30 - 49. These proposed findings are accepted as factually correct with respect to the terms of the various agreements and documents, but are not included as irrelevant and immaterial to the ultimate issues in dispute. 73, 74. Rejected as contrary to the greater weight of the evidence. 76. Rejected as an improper factual finding, and discussed in the Conclusions of Law. Respondent 10. Rejected as irrelevant and immaterial to the issues in dispute. 19. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: Stanley H. Eleff and Richard M. Hanchett, Esqs. Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. 2700 Barnett Plaza Post Office Box 1102 Tampa, FL 33601 Dean Bunch, Esquire Rumberger, Kirk, Caldwell, Cabaniss, Burke & Weschler, P.A. 101 North Monroe Street Suite 900 Tallahassee, FL 32301 Charles J. Brantley, Director Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, FL 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 Robert S. Cohen, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Electric Cart Company, LLC, be granted a license to sell low-speed vehicles manufactured by Polaris Industries, Inc. (GEM) at 5480 US Highway 98 West, Santa Rosa Beach (Walton County), Florida 32459, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed February 29, 2012 9:00 AM Division of Administrative Hearings DONE AND ORDERED this 4 4 day of February, 2012, in Tallahassee, Leon she Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 County, Florida. Filed with the Clerk of the Division of Motorist Services this AO day of February, 2012. Nalini Vinayak, Dealer Yicense 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. JB/jc Copies furnished: Robert C. Byerts, Esquire Bass, Sox and Mercer 2822 Remington Green Circle Tallahassee, Florida 32308 Michael W. Malone Polaris Sales, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Thomas B. Waldrop, Jr. Electric Cart Company, LLC 5480 US Highway 98 West Santa Rosa Beach, Florida 32459 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 Robert S. Cohen Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
