The Issue The issue is whether GMC Truck Division of General Motors Corporation is receiving adequate representation in the community or territory where General Motors proposes to add an additional dealer.
Findings Of Fact The Relevant Community or Territory Coral Oldsmobile-GMC Truck, Inc. ("Coral") seeks to establish a GMC dealership in the vicinity of Coral Springs, Florida. The location chosen is within an area which GM has identified as the Fort Lauderdale multiple dealer area ("MDA"). The MDA is an area of primary responsibility ("APR") assigned by GM in its Dealer Sales and Service Agreements to more than a single GMC truck dealer. The three protesting dealers, Sheehan, located at Lighthouse Point, King in Fort Lauderdale and Scott in Hollywood, already have been assigned to sell GMC trucks in the Fort Lauderdale MDA. The Fort Lauderdale MDA comprises a large portion of the land area of Broward County, and its boundaries are defined U.S. Census Tracts. GMC truck dealers located in nearby APRs which touch the Fort Lauderdale MDA are known in the industry as "fringe dealers." No fringe dealer makes enough truck sales to consumers who register their vehicles in the Fort Lauderdale MDA so that any fringe dealer could be considered to fall within the community or territory at issue here. Information about the addresses where new car or truck owners register vehicles is available and can then be aggregated by census tracts or other geographic designations such as zip code areas. Nationally, from 62% to 85% of the sales made by each dealer within an MDA are made to persons who register the vehicles within the MDA boundary. General Motors has designated areas surrounding each dealer within an MDA as an "Area of Geographic Sales and Service Advantage" ("AGSSA"). The boundaries of each AGSSA is also defined by census tracts. For the Fort Lauderdale MDA, AGSSA 1 is located in the northeastern county, and has been assigned to Sheehan, in Lighthouse Point. AGSSA 2 is the central portion of the county, its dealer is King, in Fort Lauderdale. AGSSA 3 is in the southern portion of the county, its dealer, Scott, is in Hollywood. Each AGSSA is designed as the area in which its dealer has a convenience advantage over other dealers of the same line-make because of its proximity to consumers residing in that area. The proposed AGSSA to be created for the Coral dealership in the Fort Lauderdale MDA is designated as AGSSA 10 [why this is not designated AGSSA 4 is not clear, but it is also not significant]. Eighty four percent (84%) of customers registering new trucks in the area to comprise AGSSA 10 purchased their GMC trucks from dealers in the Fort Lauderdale MDA. King and Sheehan sell GMC trucks that are registered throughout the MDA. A significant number of consumers go outside the Sheehan AGSSA 1 and King AGSSA 2 to purchase GMC trucks from other MDA dealers. It is undisputed that AGSSAs 1, 2 and 10 should be included within the definition of the relevant community or territory. The dispute centers on whether AGSSA 3 is also part of the community or territory. Eighty-six percent (86%) of all GMC truck registrations in AGSSA 3 were attributable to sales by dealers in the Fort Lauderdale MDA, which includes sales by Scott. Of the registrations which were not generated by sales at Scott, 72% were from other Fort Lauderdale MDA dealers. Thirty-six percent (36%) of those registering GMC trucks in AGSSA 3 (the Scott AGSSA) purchased them from other Fort Lauderdale MDA dealers. AGSSA 3, therefore, does not perform like an isolated, unconnected market. Based on consumer behavior, the Fort Lauderdale MDA, including AGSSAs 1, 2, 3, and 10, perform as a large market shared by multiple dealers. The test commonly used for determining whether markets are so connected as to form an appropriate community or territory to use as a unit of analysis requires that there be cross-sell of at least 30% in both directions. In other words, at least 30% of a dealer's sales should be made to consumers outside of the dealer's AGSSA but inside the MDA, as well as at least 30% of the consumers inside the dealer's AGSSA should buy from the other dealers in the MDA. The Scott dealership, in the southern portion of Broward County, does not fit this classic definition. The Scott data for the most recent year show that for Scott, 33 sales were made to persons registering vehicles in other AGSSA's within the Fort Lauderdale MDA. Scott's nationwide retail sales were 241 units, so only 13.7% of Scott's sales were to persons residing in the Fort Lauderdale MDA, but outside of the Scott AGSSA. On the other hand, as pointed out in the prior Finding, 86% of all registrations in the Scott AGSSA were attributable to dealers in the Fort Lauderdale MDA (including sales made by Scott). Scott does not sell vehicles into the other AGSSAs of the MDA very well, but the customers in the Scott AGSSA are going to other MDA dealers to buy trucks more than they were going to dealers in any other area. On balance, this evidence demonstrates that it is appropriate to include the Scott AGSSA, AGSSA No. 3, in the Fort Lauderdale MDA, and that the Fort Lauderdale MDA defines the community or territory which should be the unit of analysis here. Standard of Evaluation The next question is whether the existing GM dealers are providing "adequate representation" in the relevant community or territory, i.e., the Fort Lauderdale MDA. Since 1988 GMC Truck sales performance in the Fort Lauderdale MDA as a whole and in AGSSA 10 have steadily declined. The most common measure for evaluating the performance of a dealer network is analysis of market penetration data. GMC Truck has a 7.41% market share nationally. National data includes markets where GM is inadequately represented, where it has no dealers at all, and markets where it is represented adequately. National data is, of course, only a starting point. There are variations in consumer preferences for different types of vehicles, and even a dealership network in an area which fails to match the 7.41% market penetration for the nation as a whole may be adequately representing GM in its area, if consumers there tend to prefer different types of vehicles, something which even the most efficient dealer cannot change. Conversely, the dealer or dealership network selling at the national average may be inadequately representing GM if it reaches no more than the national average market penetration in an area where the type of vehicle under consideration is quite popular with the area's consumers. Historically, GMC truck has had greater market penetration in the large pick-up truck, truck wagon and full size panel van segments of the market than in the small pick-up truck segment. In places where large pick-up trucks are popular (agricultural areas, for example, where trucks commonly are used on farms) market conditions are favorable to GM. Taking into account the different popularity of distinct segments of the truck market nationally and in the Fort Lauderdale MDA, GM expects the Fort Lauderdale MDA to achieve a market penetration of 6.45%, which is somewhat lower than the national average for market penetration. Applying the same analyses to AGSSA 10 (the proposed new dealership) shows an expected market penetration of about a 6.04%, or about 80% of the National average. (Anderson testimony, at 31.) These percentages are computed by identifying demand shown by actual consumer purchases in the Fort Lauderdale MDA and in AGSSA 10 for each segment of the product category (i.e., large pick-ups, small pick-ups, and mid-size vans, panel vans, etc.) and applying to those sales the national average GM achieves for each of those segments. This produces an expected number of registrations for the dealer according to the local popularity of each product segment. This standard of comparison is useful because it takes into account unique characteristics of the local market. In 1988 AGSSA 10 achieved 95.5% of its expected penetration. Performance declined to 76.6% of expected penetration by 1990. Analyzing AGSSA 10 based on age distribution of the area's population rather than on truck market segment popularity, shows that GMC truck projects a 7.59% market penetration in AGSSA 10 and in the Fort Lauderdale MDA, which is somewhat higher than the national average and the expected penetration described in Finding 13. When one takes into account income distributions in the area, GM projects a market penetration of 7.41% in the Fort Lauderdale MDA and 7.43% in AGSSA 10, which is quite close to the national average market penetration, and higher than AGSSA 10's projected market penetration based upon product segment popularity. See Finding 13, above. Expected penetration calculations for other markets in Florida show that 17 areas of Florida actually exceed their expected market penetration, which is evidence that the expected penetration calculation produces a reasonable expectation, and has not been manipulated by GM to become an extreme standard which dealers could not actually meet. Sheehan, in AGSSA 1 had sales equal to almost 150% of its expected penetration in 1990. It is significant that in census tracts within the Fort Lauderdale MDA that meet or exceed the expected penetration, based on product segment popularity, the average distance of the purchasing consumer from the nearest dealer is 3.4 miles. This confirms that convenience of dealer location affects consumers' purchasing decisions in an important way. Consumers in AGSSA 10 are, on average, now 8.7 miles from the nearest GMC Truck dealer. This increased distance is a very persuasive explanatory factor for the low sales in AGSSA 10 now, which fall below expected market penetration. The expert for the protesters, Dr. Mizerski, challenged GM's use of national averages to assess dealer performance in AGSSA 10 and the Fort Lauderdale MDA. Dr. Mizerski would have used as the standard for assessing the adequacy of representation of the GMC truck products by the protesting dealers market penetration in the State of Florida, on the theory that the State of Florida data more closely matches AGSSA 10 and the Fort Lauderdale MDA than national data does. This theory has some initial appeal, but it fails to take into account the question of whether Florida itself has a disproportionate share of inadequately represented markets. This could come from the substantial growth in Florida in recent years. Florida falls below the national average, and below 34 states in the ratio of GMC Truck dealers to all other dealers. More than half the Florida markets have penetration below that expected based on product segment popularity, which is an indication that Florida has a disproportionate share of inadequately represented markets. There is no proof that the number of sale points (i.e., dealerships) has increased in proportion as Florida's population has increased. (See Finding 30, below, as to Broward County). If market penetration for GMC truck products in Florida is lower than the national average not because of unique characteristics of the Florida market, but because of network inadequacies, it makes no sense to use that inadequate network as the standard for evaluating the adequacy of dealer performance. On balance, the expected penetration standard advocated by GM based on product segment popularity is more persuasive than the "actual penetration" standard advocated by Dr. Mizerski. The penetration achieved in AGSSA 10 in 1990 was only 4.63%, which is well below the expected penetration of 6.04%, the national average of 7.41%, the Florida average of 5.8%, and the Florida MDA average of 5%. It began to fall below expected penetration in 1988 and performance has declined since then. Performance in the Fort Lauderdale MDA as a whole was also below expected penetration in 1989 and 1990. If lease registrations are included within the definition of the retail market, the figures are essentially the same. Consumer lease transactions are not distorting performance data. All Fort Lauderdale MDA dealers have not had trouble meeting expected penetration projections. The performance by Sheehan in AGSSA 1 is almost 150% of its expected penetration. Existing dealers have not been able to penetrate the market in AGSSA 10 adequately from their current locations. The most likely cause of the low penetration is the lack of a GMC Truck dealership in the geographic area. Market Characteristics The three existing dealers are located in what was the densely populated eastern or coastal half of Broward County in 1980. The Broward population has grown significantly from 1980 through 1990 in the western half of the Fort Lauderdale MDA, especially near the proposed location for the Coral dealership. The population in AGSSA 10 rose nearly 200,000 from 1970 to 1980, and rose 129,000 from 1980 to 1990. The 1990 population of 357,958 is about nine times the 1970 population, and twice the 1980 population. There have been similar increases in the number of households and an observable increase in household density in western Broward. This population growth in AGSSA 10 should continue into the future, reaching an estimated 530,554 within the next 10 years. This growth rate is five times greater than that of Broward County as a whole, which itself is growing at twice the national rate. Despite the significant increase in population in AGSSA 10 and in the western two thirds of AGSSA 3, there is no local GMC truck dealer to serve this growing population. The growth has not been limited to AGSSA 10. The entire Fort Lauderdale MDA had grown in terms of population, household and driving age population during the same period. Each AGSSA in the Fort Lauderdale MDA had population increases and increases in the number of households both in absolute numbers and on a percentage basis from 1970 to 1980. AGSSA 10 had the largest percentage increases (500% in population, 600% in households), although the entire Fort Lauderdale MDA grew very significantly. From 1980 to 1990 the population of AGSSA 10 grew 56.24% and households grew 66.66% and it became the second largest AGSSA in Fort Lauderdale MDA. The population of AGSSA 1 grew 10.92% and 19% in number of households during 1980-1990. AGSSA 3 increased 22.58% in population and 28.48% in households. AGSSA 2 population remained basically stable (decreasing by about 1.84%) and the number of households increased only moderately, 5.33%. The very significant growth in the Fort Lauderdale MDA and in AGSSA 10 has two implications. It has offered greater opportunities for sales of GMC trucks and also highlights the need for expansion of the dealer network so that dealers will be conveniently located to the new residents of the western areas of Broward County. AGSSA 10 currently holds strong prospects for additional sales due to its household incomes. Sales potential is better predicted by a household's income than by individual income. Areas of average household incomes below $15,000 generate few new vehicle sales, while household incomes of greater than $15,000 have significant potential for new vehicle sales. The average household income in AGSSA 10, and throughout the entire Fort Lauderdale MDA, are predominately of middle and upper income levels. Only one census tract in AGSSA 2 and one in AGSSA 3 have household income levels of below $15,000. The employment figures in the decade from 1980 to 1990 in Broward County are consistent with its population growth. The increases in employment and real income in Broward County have been significantly higher than those of the United States as a whole, and Broward's rate of unemployment has been lower. This economic strength is predicted to continue throughout the next decade. These facts indicate that the large growth in the Fort Lauderdale MDA and in AGSSA 10 is of a type likely to provide significant opportunities for sales of new GMC Trucks. As the population increased, light truck registrations have increased too. From 1982-1990, retail light truck registrations in the Fort Lauderdale MDA increased 112%, and in AGSSA 10 increased 213%. These increases in population, households, income and employment also point to an increased potential for traffic congestion in areas where current dealers are located, as individuals use the road networks to travel to and from work. Providing convenience to consumers by locating new dealerships in areas experiencing growth is important. See Findings 15 and 24. Areas which experience rapid development can outgrow the ability of the dealer network to provide adequate service to potential customers. The Fort Lauderdale MDA offers more sales opportunity per existing GMC truck dealer than all but three markets in Florida. Even with the proposed additional dealer, the opportunity per dealer would remain higher than that available in 39 other Florida markets. Merely to increase dealers in proportion to increases in the number of households, an additional dealer should have been added as long ago as in 1983, and another likely will be needed by 1995 in the Fort Lauderdale MDA. Based on GMC's experience over the years, the existing dealer network cannot continue to expand to fulfill the needs of Broward's increased population and especially the population of the Fort Lauderdale MDA. A dealer network designed to produce more than 225 expected GMC Truck registrations per dealer fails to achieve the minimum expected registrations 86% of the time. Thus, to have a reasonable chance of meeting expected market penetration, the network should not exceed a critical size of 225 expected GMC Truck registrations per dealership. This 225 registration goal is not a measure of total sales at a dealership. GMC Trucks are sold from dealerships which also sell other GM lines. The 225 registrations applies only to GMC Truck products. In the absence of the proposed new dealer in AGSSA 10, the GMC Truck network is configured to expect 365 registrations per dealer, which is much above critical optimum design capacity of 225. The Fort Lauderdale MDA simply has grown too large for a three dealer network. Appropriate planning by GM requires redesigning the network to allow for at least four and as many as five dealers. Perhaps the most telling facts are those showing selling success at distances. The existing dealers' market penetration is strongest close to their dealership locations, but declines as the distance from the dealerships increase. This makes intuitive sense. Sheehan has been able to meet or exceed the expected penetration within four miles of its dealership and has only moderate impact on GMC truck sales performance at distances near the proposed location for Coral in AGSSA 10. King does not penetrate the market significantly beyond four miles from its dealership, and has even less impact on GMC truck penetration at the proposed location, which is 10 miles away from King. Scott is not penetrating the market significantly at a distance, achieving only a 3/10 of one percent of its sales at a distance equal to that of the proposed new Coral dealership. Because there is no dealer in AGSSA 10, potential customers residing there are 8.7 miles from the nearest GMC truck dealer, on average. This is almost three times the average distance in AGSSA 1 (2.8 miles), twice the distance in AGSSA 2 (3.5 miles), and 2 and 1/2 miles farther than in AGSSA 3. If the proposed new dealership is established in AGSSA 10, convenience is improved to 4.1 miles on the average, which still is not as good as that provided in AGSSAs 1 and 2. Of course, the convenience GM offers to consumers residing in AGSSAs 1, 2 and 3 remains the same whether or not a new dealer is added in AGSSA 10. Other manufacturers of light trucks offer higher degrees of convenience to residents of AGSSA 10, which places GM at a competitive disadvantage. Performance of GMC truck in AGSSA 10 fell below minimum expected penetration in 1988 (see Finding 13). That year a light truck competitor, Dodge, established a dealership there. GMC truck performance has continued to decline in the area as other light truck manufacturers established representation in the area in 1989 (Id.). Based upon their distance from AGSSA 10 consumers, the existing Fort Lauderdale dealers are unable to overcome the convenience disadvantage they face in attracting consumers residing in AGSSA 10, and consequently have been unable to provide adequate inter-brand competition. This is partially the result of the design of Broward County roadways, which carry traffic better north-south than east-west. The problem is inherent in the current design of the GM sales network, and the solution is to add a GMC truck dealer in AGSSA 10 to improve convenience to consumers. Based on previous experience, this improvement in convenience should result in increased efficiency and additional sales. Impact on Existing Dealers GM computes a gross registration loss, which is the number of registrations which would raise each area within the MDA to the expected penetration level (see Finding 13). This is a conservative measure of possible additional sales because it is based upon the expected penetration, which is a minimum standard, not the maximum number of sales which might be achieved by effective dealers such as Sheehan. For 1990, the gross registration loss for GMC trucks in the Fort Lauderdale MDA was 295 units, which was mostly concentrated in AGSSA 10, and in the western 2/3 of AGSSA 3. If the proposed Coral dealership had been operating in 1990, and if it had performed at the average of the performance levels of the existing Sheehan, King and Scott dealerships, it would have produced a total of 313 registrations within a 20 miles radius of the dealership, which includes some areas beyond the boundary of the Fort Lauderdale MDA. This is 18 registrations more than the gross registration loss in the entire Fort Lauderdale MDA. Computed on the same basis, sales to the more relevant group of persons registering vehicles in the Fort Lauderdale MDA would have been 286 sales. This shows a new dealer in AGSSA 10 could theoretically make 286 sales without supplanting a single sale from existing dealers in the MDA. Moreover, in 1990 151 sales were made to persons who registered the vehicles within the Fort Lauderdale MDA from sales by dealers outside the Fort Lauderdale MDA. These sales represent additional potential sales to be captured by the three existing dealers.
Recommendation It is RECOMMENDED that the application to establish the GMC Truck dealership at Coral Oldsmobile be granted. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of October 1992. WILLIAM R. DORSEY, JR. 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 22nd day of October 1992.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against based upon his age when he was not selected for promotion by the Respondent Corporation, and when he was ultimately terminated.
Findings Of Fact The Petitioner, Harlan Hamer, has many years of experience working in the trucking industry, particularly in management capacities. He has been engaged in managing safety, finance and administrative operations of large motor carriers, as well as operational aspects of a 350- truck unit motor carrier corporation. He has an extensive knowledge of the various aspects of regulation and operations pertaining to the trucking industry. He is also a licensed commercial, Class A driver, qualifying him to operate commercial vehicles such as large, over-the-road trucks. The Respondent is a dry-freight trucking company which, at the height of its operations in 2006-2007, operated 260 to 300 trucks. Apparently most of these were owned by the Respondent Shoreline. It employed the requisite number of drivers to keep this approximate number of trucks operating, as well as a significant number of office and terminal administrative, operations, management, and maintenance personnel. In early 2007, the Petitioner interviewed with Shoreline concerning an employment position. He interviewed with Randa Shipp, who was a recruiter for Shoreline at that time. Ultimately, Mr. Hamer was not selected for that job and secured alternative employment as a driver for Mineola Water Company. Soon thereafter, however, he received a call from Shoreline offering him a position as a "night dispatcher." He accepted that position and began working for Shoreline on May 14, 2007, at a weekly salary of $750. He completed an application at that time in which he revealed his age. The Respondent thus became well aware of his age at the time it hired him. His resume also describes his birth year as being 1947. The Shoreline form which documents his hiring, signed by the safety director at that time, Cheryl Allender, also reflects that birth date. His age of 60 or 61 years, at times pertinent to this case, was well known by the Respondent and had been since he was hired. The Petitioner had been a truck driver early in his career and later managed drivers. He was a manager for Pucket Oil Company; Santee Carriers, Inc; and Transwood, Inc. In some of these capacities he had been responsible for U.S. Department of Transportation mandated compliance with government regulations applicable to the trucking industry, as well as Equal Opportunity (EEO) compliance. When the Petitioner was hired as a night dispatcher he was given approximately three nights of training. Greg Bruce, testifying for the Petitioner, was also a night dispatcher and the Petitioner's counterpart. For the first three months of his employment in 2006, however, Greg Bruce had worked with the dayshift team as a Fleet Manager, in which he performed dispatching duties, while managing a group of drivers. Beginning in October 2006, Bruce had worked as a night dispatcher. He testified that the Petitioner responded well to training and, as far as he knew, performed his duties well after commencing his employment. Bruce however, did not observe the Petitioner performing his duties after the training period ended because they worked at different times. He did establish that the Petitioner consistently arrived early for his shift and communicated regularly with the day shift team, before they departed at the end of their shift. He established that the Petitioner had a good attendance record, and was seldom or never absent, because he never had to "cover" the Petitioner's duties, which he would have done if the Petitioner had missed work. The night dispatcher for Shoreline functioned alone while on shift, had to answer four telephone lines and respond to text messages from drivers, concerning any issues arising during the night. The night dispatcher was also required to communicate with customers and to generate new loads. The night dispatcher had responsibility for resolving equipment break-down issues for Shoreline as well as Shoreline Transportation of Alabama, a related trucking company under the same ownership. The night dispatcher's duties were essentially the same as those performed during the day by fleet managers, as well as load data entry personnel and customer service personnel. The testimony of the Petitioner and Bruce, together, establishes that the Petitioner was generally adequately qualified to perform the duties of Night Dispatcher. Mistakes were made by the night dispatchers, including the Petitioner, as well as by day-shift personnel. Day-shift personnel would sometimes omit a correct "pick-up number" so that the night dispatchers would have to search the office to locate a particular bill of lading to determine load/delivery information. Because of the large number of trucks on the road at any given time, resolving such issues could take a considerable period of time. Both the night dispatchers, including the Petitioner as well as the day-shift personnel, made mistakes such as entering incorrect numbers in the company record system concerning trucks, drivers and loads. The totality of the testimony and evidence shows, however, that, after training, and after gradually improving on the job the Petitioner was adequately qualified for the night dispatcher job at the time of his termination. Sometime in August 2007, the Petitioner learned that the company would be hiring an Operations Manager to assist Clayton Gremillion in his operations management duties. The Petitioner therefore approached Clayton Gremillion (his supervisor) about his interest in being considered for that new position. Clayton Gremillion acknowledged in his testimony that the Petitioner had informed him of his interest in moving into a management position, and had informed him about his qualifications. Clayton Gremillion further acknowledged that the company was creating such a management position and that he told the Petitioner that he would "keep him in mind" for that position. The position was not posted or advertised and there was no actual opportunity to make a formal application. In any event, the Petitioner was never interviewed for that position nor was it ever discussed with him, after the initial conversation he had with Clayton Gremillion. Clayton Gremillion, and his father, Don Gremillion, the owner, interviewed and then hired Justin Allen for the new position, on January 21, 2008. He was hired as an Operations Manager, at a weekly salary of $1,346.15. Allen was much younger than the Petitioner, being born in 1979. Mr. Bruce testified that he had more than 20 years experience in trucking management and he would have been qualified and wished to have been considered for the job. He testified that he considered the Petitioner even more qualified because of his longer experience in management with trucking companies with similar operations. Justin Allen had much less experience in the trucking business than either the Petitioner or Greg Bruce. He did have a few years of experience working for J.B. Hunt Trucking Company, but he lacked significant management experience. Justin Allen was hired, however, because it was believed that he had business connections which would be of significant assistance in generating new revenue and accounts for the company, chiefly accounts with Lowe's and Wal-Mart. This was the primary reason for Shoreline to hire Allen, as well as the fact that it was considered important to obtain help for Clayton Gremillion in managing the company's operations. The evidence is not clear as to how much new revenue Allen may have generated for Shoreline. Allen also performed some human resource duties, as well as helping Clayton Gremillion in operations management. In 2007, as well as into 2008, Shoreline was adversely impacted by an economy entering a severe recession, with a particularly severe financial strain caused by escalating diesel fuel prices. Indeed, Shoreline lost $1.7 million in 2007 and lost over $2 million in the first six months of 2008, which resulted in its closure, effective July 1, 2008. On that date, the company operations ceased and all assets and equipment were leased to Evergreen Transportation Corporation. During the period leading up to this company closure, economic adversity caused Shoreline to take some 40 trucks out of service, in approximately early February of 2008. This resulted in the layoff of numerous drivers and some office personnel. In early 2008, the New Orleans office of Shoreline was closed, due largely to economic conditions. An employee, Mike Hill, who had been staffing the New Orleans office, was transferred to the main office in Cantonment, Florida. Mike Hill had been initially hired by Shoreline on August 30, 2004. He had worked in the trucking industry prior to that time as a driver and also had approximately ten months experience in dispatching before being hired by Shoreline. In 2007 and early 2008, Hill was being paid a $1,000 weekly salary plus a $300 car allowance. While working for Shoreline in the New Orleans area he serviced the Gulf States Coca-Cola Company account, at its facility in New Orleans, as one of Shoreline's most important customers. Hill is a substantially younger person than the petitioner, being born in 1971. Apparently, Mr. Hill had communication difficulties, or disputes, with Coca-Cola's representative, Shawn Blazer. While that may have affected the decision to remove him from the Louisiana office and return him to the Florida office, the evidence shows that Shoreline kept the Coca-Cola account and had it serviced by Hill, and later Norman Macintosh and ultimately by Greg Bruce. Bruce testified that because of his efforts Shoreline regained business that Hill had lost with Coca-Cola. Be that as it may, the evidence shows that the primary reason that Mike Hill was transferred back to the Cantonment office was due to the economic downturn and the Respondent's closure of the New Orleans area office or terminal. Mike Hill had worked for Shoreline since 2004 and had worked in the night dispatching and breakdown clerk position before Mr. Hamer ever joined the company. Consequently, due to his seniority and due to his relevant experience, Hill was moved back from New Orleans and given the position held by the Petitioner. The Petitioner was therefore informed by Cheryl Allender, on or about February 6, 2008, that Clayton Gremillion had decided to terminate the Petitioner's employment because the position would be filled by Mike Hill. The Petitioner was told it was necessary to lay him off due to the need to reduce forces as a result of economic conditions. The financially-driven reduction of Shoreline's forces in New Orleans and the decision to retain Mike Hill who was an employee with seniority, according to the Respondent, led to the Petitioner's layoff. In addition to the Petitioner, six other office personnel were laid off within thirty days of the Petitioner's layoff. Clayton Gremillion testified that there were certain performance deficiencies displayed in the Petitioner's work as a night dispatcher. These involved tardy or incorrect input of data into the computerized load/truck/customer tracking and records system, and some delays in arranging for the repair of truck break-downs and for alternative means of delivery or pick-up of the relevant loads. The primary reason for the layoff, however, was as a result of the reduction of forces in the New Orleans operation and the decision to transfer employee, Mike Hill, with his seniority, and experience in dispatch work, to replace the Petitioner in his position. It is true that Shoreline hired some other personnel after the Petitioner's layoff, and in the face of the economic downturn. However, none of these personnel were hired to fill the Night Dispatch/Break-Down Clerk position that the Petitioner had occupied. Lloyd Randall was hired after the Petitioner was laid off. Lloyd Randall, born in 1954, was approximately seven years younger than the Petitioner. He was hired to work as a fleet manager on the recommendation of a mutual acquaintance to Clayton Gremillion. In fact, as Clayton Gremillion conceded, he hired him "as a favor to a friend." He hired him at a salary rate of approximately $475 per week. On the day of his hire, Mr. Randall decided he would not stay, whereupon Clayton Gremillion offered him $565 per week for the position. Mr. Randall, however, determined that it was not the type of work he desired and left after being employed for approximately one day. Mike Hill, who had been hired in the position from which the Petitioner was terminated, left the company fairly soon, on March 31, 2008. The position which had been occupied by the Petitioner, and then Mike Hill, was next filled by Norman Macintosh, who is over 50 years of age and had worked with Shoreline since the 1980's. Shoreline employed people in all age ranges. This included several over the age of 40, some over the age of 50, and some over the age of 60. In February 2008, for example, when the Petitioner was laid off, numerous drivers were employed over the age of 50 and Norman Macintosh and Jerry Adkins, longtime company employees, respectively in the dispatcher positions and maintenance supervisor positions, were over the age of 50. Mr. Adkins was over 60 years of age at the time. Shoreline continued to run ads seeking to fill certain positions, including office positions, after the Petitioner's layoff. These were not ads seeking employees for the night dispatcher/break-down clerk position that the Petitioner had held, however. Although Shoreline hired some additional personnel after the Petitioner's layoff, none of them were hired to fill his position. In any event, the Petitioner noticed the ads and called Jerry Adkins to find out "what was going on." The fact is, however, that in response to the ads the Petitioner never contacted anyone else at Shoreline in an effort to either get his former job back, or to seek some other position with the company, such as those referenced in the ads. Mr. Adkins, the Maintenance Supervisor for Shoreline, was over 60 years of age. The Petitioner contends that he is a biased witness because he was a long- time company employee and, even after the cessation of company operations, still had a company-supplied vehicle. It is not found that this fact, together with any facts elicited on cross-examination of Mr. Adkins, or otherwise, has established him to be lacking in credibility, however. Mr. Adkins did not believe that the Petitioner's layoff was associated with his age. Instead, he stated that it was to accommodate bringing the more senior employee, Mike Hill, back to the company headquarters location from the closed New Orleans location and operation. His testimony is accepted as credible. When the Petitioner learned that his former position with Shoreline was being advertised, in March 2008, he did not apply for it. He had an application pending with another trucking company at the time which he anticipated would be a better employment opportunity. Moreover, he did not apply for other employment positions which he maintains were filled with younger people. There is no evidence to show that in instances when substantially younger people were hired for positions with the company, before and after the Petitioner's layoff, that it was at the expense of persons more in the Petitioner's age range, who sought the positions also and were rejected. That was simply not shown, in addition to the fact that the Petitioner did not apply for other positions. In fact, these positions have fairly low pay levels. It thus may be that these positions, or some of them, were filled by significantly younger people because older, more experienced applicants would not be attracted by the relatively low pay levels. In any event, had the Petitioner made an inquiry concerning being re-hired by the Respondent for any position, it would not likely have occurred. This is because of performance problems described by the testimony of daytime dispatcher Chip Wasdin, as well as by Clayton Gremillion. The Petitioner made mistakes and had difficulty ensuring that data was entered correctly into the company's computer system. The Petitioner acknowledged making mistakes in this regard, even after his first few months in his position. In summary, it has not been demonstrated that the Petitioner was terminated, nor that he failed to receive the promotion to the management position, because of his age. The Respondent has established the above-referenced legitimate business reasons for the hiring of Justin Allen and Mike Hill. Other substantially younger people hired for positions, even if their tenure was very short in those positions in late 2007, or the spring of 2008, were not shown to be hired at the expense of the Petitioner or any other applicants in the Petitioner's age range. In fact, the Petitioner applied for no such positions. Given the overall tenor of Clayton Gremillion's testimony, it may even be the case that, in one or more of the hiring situations, the hiring related at least somewhat to cronyism. Clayton Gremillion admitted hiring Lloyd Randell as a favor to a friend, and the same may be true in terms of a friend's recommendation with regard to Justin Allen. In any event, however, there was no showing of any intent to discriminate, based upon age, by the hiring of significantly younger people than the Petitioner, or in the failure to promote or the termination of the Petitioner. Finally, the lack of intent to discriminate based upon age is borne out by the fact that the Respondent was fully aware of the Petitioner's age in the spring of 2007, when it chose to hire him.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that no discriminatory employment actions based upon the Petitioner's age occurred and dismissing the Petition in its entirety. DONE AND ENTERED this 16th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2009. COPIES FURNISHED: Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 Michael W. Kehoe, Esquire Fuller, Johnson, Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola Florida 32503 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the application of petitioner, STEVE SORENSEN CHEVROLET, INC. d/b/a STEVE SORENSEN CHRYSLER, PLYMOUTH, AND DODGE ("Applicant") for a new motor vehicle dealer license under Section 320.642, Florida Statutes, should be granted on the ground that existing Chrysler dealers, including respondent TOM EDWARDS, INC. ("Existing Dealer"), are not providing adequate representation of the manufacturer, Chrysler Corporation ("Chrysler") in the Lake Wales sales locality. Background Applicant STEVE SORENSEN CHEVROLET, INC. d/b/a STEVE SORENSEN CHRYSLER, PLYMOUTH AND DODGE, filed with the State of Florida, Department of Highway Safety, and Motor Vehicles, ("Department") an application for the issuance of a motor vehicle dealer's license under Section 320.642, Florida Statutes, to operate a Chrysler dealership in Lake Wales, Florida. TOM EDWARDS, INC., the existing dealer in Bartow, Florida--14 miles from Lake Wales--objected to the issuance of a license. The Department forwarded this matter to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57(1) hearing. Hearing was set for December 2, 1983. On November 9, 1983, the Existing Dealer moved for a continuance. The motion, opposed by the Applicant and Chrysler, was denied. At final hearing the Applicant and Chrysler presented the testimony of V. Hanwell, Richard Snyder, Steve Sorensen, Wayne Finley, and Vance Gordon. Petitioners' Exhibit Nos. 1 through 14 were received into evidence. The Existing Dealer presented the testimony of Tom Edwards. The transcript of hearing was filed on January 6, 1984, and the parties submitted proposed findings of fact and conclusions of law by February 16, 1984. Based on the evidence presented, the following facts are determined:
Findings Of Fact I. The Parties The Applicant seeks a license to operate a Chrysler, Plymouth, Dodge and Dodge Truck dealership two miles north of Lake Wales on U.S. Highway 27, Polk County, Florida. This would be a "dual" dealership, since the Applicant currently operates a Chevrolet dealership at that location--and has since 1979. 1/ It acquired the Lake Wales Chevrolet dealership in 1975 and operated his dealership at a location on Highway 60, east of Lake Wales, prior to moving to its current location. The Applicant is a successful Chevrolet dealer operating a 22,000 square foot facility located on approximately three acres, with an additional two acres available for future expansion. This is a complete sales and service facility, including 15 mechanical service stalls, 6 body shop stalls, and a large parts department. It exceeds Chevrolet's guidelines for space requirements. Chrysler is the licensed distributor of Chrysler, Plymouth, and Dodge cars, and Dodge truck vehicles. It supports the licensing of the Applicant's proposed dealership in Lake Wales on the ground that there are no dealers presently located in Lake Wales and dealers outside this locality are not adequately representing Chrysler in that sales locality. Since 1973, the Existing Dealer has continuously operated a licensed Chrysler dealership selling Chrysler and Dodge cars, and Dodge trucks, in Bartow, Florida. It opposes granting the requested license, contending it adequately represents Chrysler in the Lake Wales area and that the location of the proposed dealership in Lake Wales would adversely affect its business. II The Applicant's Qualifications to Operate a Chrysler Dealership The parties agree that the Applicant is financially qualified to operate a Chrysler dealership in Lake Wales. By its past performance, it has proved that it has the necessary talent and resources to capably operate a motor vehicle dealership. In anticipation of receiving a Chrysler dealership, the Applicant has hired additional personnel in its parts department, including an additional clerk, and a full-time sales manager. It also purchased a $40,000 Reynolds Vim- Net computer. These additional resources will also serve the existing Chevrolet dealership. Registration data reflects there are approximately 2,000 owners of Chrysler Corporation vehicles in the Lake Wales sales locality which could be served by a new Chrysler dealership. Market Area involved The Applicant's proposed dealership facility is in a trade area which Chrysler designates as the "Lake Wales sales locality," consisting of Lake Wales, Babson Park, Frostproof, and Waverly. Chrysler identified the Bartow sales locality, which is being served by the Existing Dealer, as consisting of the towns of Bartow, Alturas, Bradley, Fort Meade, Homeland, Mulberry, Nichols, and Pembroke. All of these communities are located in Polk County, Florida. Prior to May of 1980, when Scenic Chrysler-Plymouth business, a Chrysler dealer had been located in the Lake Wales sales locality. Since 1980, Chrysler has actively sought applicants to open a Chrysler dealership in Lake Wales. There are currently three Chrysler dealerships in Polk County: one in Lakeland, one in Winter Haven, and one in Bartow. These dealerships are reasonably available to residents of Lake Wales, both for sales and service. Lakeland is 20-25 miles (30 45 minutes' driving time) from Lake Wales; Winter Haven is 10-11 miles (15-20 minutes' driving time); and Bartow is 14 miles (20 25 minutes' driving time). Polk County has a population of approximately 330,000. In September of 1983, Ford Motor Company had nine dealerships in Polk County and General Motors, fifteen. Although Chrysler had fewer dealerships, the significance of this disparity has not been shown since Ford and General Motors have consistently sold more vehicles and represent greater shares of the market. A comparison of the number of Chrysler dealerships with population served in other parts of Florida indicates that Polk County as a whole, does not have a disproportionately small number of Chrysler dealerships. In Hillsborough County, four Chrysler dealerships serve a population of 670,000. In Pinellas County, five Chrysler dealerships serve a population of 700,000. If the proposed dealership is licensed, Polk County would have the same number of Chrysler dealerships as Hillsborough County, which as more than twice the population. Lake Wales currently has, within its boundaries, Chevrolet, Ford, Buick-Oldsmobile, and Pontiac-Cadillac dealership. It does not have any imported car dealerships or Chrysler, Lincoln-Mercury or American Motors dealerships. IV. Adequacy of Existing Dealer's Representation of Chrysler in Lake Wales Chrysler measures the adequacy of its sales performance or representation in various sales localities by comparing its corporate penetration of total industry sales (by percentage) corporate, within a zone, 2/ to its corporate penetration of industry sales within a given sales locality, such as Lake Wales. This is the "benchmark for comparing how well we're doing in the various sales localities . . . ." (TR.-74) The Applicant and Chrysler rely on a comparison using new vehicle registration figures compiled by the R. L. Polk Market Action Report. For the years 1980-1983 Petitioners' Exhibit No. 9 shows the following comparison between Chrysler's Zone and Lake Wales' market penetration: Car Industry 1980 1981 *** 1982 1983* Zone Corporate Car Penetration 7.1 7.5 8.9 10.5 Lake Wales Sales Locality** 8.3 5.1 6.7 8.7 Truck Industry Zone Corporate Care 11.6 8.1 8.8 8.5 Lake Wales Sales Locality 8.3 2.9 6.3 4.0 *8 months-annualized. **Includes, Lake Wales, Babson Park, Frostproof, and Waverly. ***1981 was an unusually bad year for Chrysler because of weakness of the national economy and fears that Chrysler would go bankrupt. For car sales, this comparison shows that in 1980, Chrysler had better market penetration (as a percentage of total industry sales) in Lake Wales than in the Orlando Zone; but in 1981 through 1983, its zone penetration exceeded its Lake Wales penetration. These figures also show continuous penetration gains in both, areas since 1981, but the annual rate of increase in Lake Wales has been greater than in the zone. For truck sales, a similar relationship is found except for 1983, when both Lake Wales and Zone penetrations declined. In conjunction with this comparison, the Applicant and Chrysler rely on R. L. Polk Market Action Report vehicle registration figures showing that the Existing Dealer sold the following number of vehicles to persons residing in the Lake Wales Sales locality: 1980 1981 1982 8 mo. 1983 Lake Wales Sales by 14 10 6 10 Existing dealer (Petitioner's Exhibit No. 7) The R. L. Polk Market Action Report figures for Lake Wales, used in both of these comparisons, have been shown to be inaccurate and unreliable. These figures, and the conclusions based on their use, are rejected as suspect and unworthy of belief. The R. L. Polk figures show that in 1982, the Existing Dealer sold 6 Chrysler vehicles to persons in Lake Wales. In fact, he sold 8--a statistical error of over 33 percent. The Polk figures show that in 1983 (8 months) the Existing Dealer sold 10 units in Lake Wales, when, in fact, he sold 13--a 30 percent error. Finally, the Polk figures show that the Existing Dealer sold 82 vehicles residents of Polk County during the first 8 months of 1983; in fact, it sold 102. The Existing Dealer (in Bartow) has actively cultivated the Lake Wales area since mid-1980, when the Lake Chrysler dealership went out of business. It advertises newspapers, on radio, and in telephone directory yellow pages services Lake Wales. It is the only Chrysler dealership in Polk County which advertises in the Lake Wales telephone directory. The Existing Dealer's sales efforts in the Lake Wales area have recently begun to bear fruit. In 1982, its first profitable year since 1977--it earned profits of $13,000. Without the 8 sales in Lake Wales, it would have remained "in the red" another year. The opening of the Applicant's proposed dealership would decrease the number of sales which the Existing Dealer could otherwise reasonably expect to make in the Lake Wales area. During the first 9 months of 1983, the Existing Dealer's Lake Wales' sales accounted for gross profits of $28,000. The loss of sales of this magnitude to the Applicant would seriously impact the profitability--and continued viability--of the Existing Dealer. Chrysler has not previously expressed any serious dissatisfaction with the Existing Dealer's representation or sales performance. The only document used by Chrysler to openly "evaluate a dealer's annual performance is known as the "Sales Responsibility Review." For the year ending December, 1982, the Existing Dealer's Sales Responsibility Review showed it exceeding all of its fair market share requirements by over 100 percent. In Dodge cars, it exceeded sales requirements by over 200 percent; in Chrysler cars, by over 160 percent; and in Dodge trucks, by 104 percent.
Recommendation Based on the foregoing, it is RECOMMENDED: That the application by Steve Sorensen Chevrolet for a motor vehicle dealer's license be denied. DONE and ORDERED this 15th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1984.
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
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
