Findings Of Fact Facts admitted by all parties FDOT adopted Rule 14-26.0131 in August 1989. Since 1986, FDOT has had a policy of authorizing special permits for ocean-going sealed containerized cargo units as expressed in the policy statement effective March 13, 1986. FDOT recognizes that Florida's competitive position in world trade is important to the economy of the State of Florida as a whole. FDOT did not consider Florida's competitive position in world trade as a governing factor in determining to repeal Rule 14-26.0131. FDOT decided to repeal Rule 14-26.0131 because it determined that the rule was unconstitutional. FDOT decided that the rule was unconstitutional because it provided a benefit to transporters of ocean-going sealed containerized cargo units which benefit was not available to transporters of domestic containerized cargo units. The decision to settle the lawsuit brought by the Florida Trucking Association did not lead to repeal of the rule. Rather, the decision to repeal the rule led to the decision to settle the lawsuit. In determining that the rule was unconstitutional, the effect that repeal of the rule would have on Florida's competitive position in world trade was not a controlling consideration. FDOT recognized at the time it decided to repeal the rule that those competing in world trade would suffer increased cost by the repeal. FDOT decided to repeal the rule before it prepared the written economic impact statement. Based on the information in the Department's possession regarding the detrimental effects upon industry, FDOT still decided to repeal the rule. Other than review of the report referenced in the economic impact statement, FDOT did not analyze the economic impact repeal of the rule would have on transporters of ocean-going sealed containerized cargo units. FDOT did not estimate the benefit repeal of the rule would provide to transporters of nonocean-going sealed containerized cargo units. FDOT issued the following number of overweight permits in the years 1986 through 1991: Year Trips Blankets 1986 27,251 5,533 1987 26,814 4,937 1988 28,733 4,901 1989 27,613 2,745 1990 23,749 1,507 1991 27,326 1,158 15. Of the total overweight permits issued in the years 1986 through 1991, the following were for vehicles transporting oceangoing seal containerized cargo units: Year Trips Blankets 1986 0 159 1987 0 519 1988 229 484 1989 10,221 105 1990 8,119 1 1991 10,864 27 The FHWA authorizes states to permit vehicles weighing more than 80,000 pounds carrying loads which cannot be easily dismantled or divided. FHWA has advised the states that the determination of whether a load can be easily dismantled is one to be determined at the state level as expressed in the correspondence dated August 30, 1968, to Governor Riley of South Carolina. As stated in the August 30, 1986, memorandum, the FHWA has no difficulty in construing containerized cargo involved in international trade as nondivisible loads. Citrus is a major economic industry of Florida. Florida citrus packers compete for the European and Asian markets with other citrus producing countries and other fruit commodities. FDOT published an economic impact statement. FDOT complied with publication and hearing requirements. Facts established by evidence at hearing The FDOT policy which immediately preceded the subject rule was expressed as follows in a policy statement effective March 13, 1986: Sealed containerized cargo units will be considered as nondivisible loads and special permits will be issued to operate vehicles hauling such units on the state highway system of this state, subject to the following restrictions: Such containerized cargo units must be part of international trade and be moved on the highways due to importation from, or exportation to, another country. The operators of such units shall at all times have in their possession the international bills of lading to verify that such units are being operated pursuant to this policy. A special permit issued for the hauling of any containerized cargo units covers only transport with the unit's contents as originally loaded onto a vehicle, and becomes invalid once the original contents are added to, dismantled, or divided. The gross weight imposed on the highway by the wheels of any one axle of a vehicle operating under such special permit shall not exceed 25,000 pounds, and the total weight with load imposed upon the highway by all the axles of the vehicle shall not exceed 95,000 pounds. As of the effective date hereof, this policy will serve as the Department's position and practice until such time as appropriate guidelines are incorporated into rules promulgated under the Florida Administrative Code. The Department's 1986 policy statement was grounded in the Federal Highway Administrator's letter to the then-Governor of South Carolina, Richard W. Riley, which stated, inter alia, that ". . . based on the needs of international commerce and possible tax implications for bonded cargos, we [the FHWA] have no difficulty in construing containerized cargo involved in international trade as a nondivisible load" for purposes of authorizing such cargos as one of the exceptions to the 80,000 pound weight limit contained in 23 U.S.C. 127. The Department's 1986 policy statement was codified as Rule 14- 26.0131, Florida Administrative Code, effective August 2, 1989. The subject rule reads as follows, in pertinent part: This rule is being adopted to allow state regulations to conform to the permitted provisions of the memorandum of the Director, Motor Carrier Transportation, Federal Highway Administration (FHWA), dated December 30, 1985. Subject: "Vehicle Size and Weight". Ocean-going sealed containerized cargo units, to include such cargo units with wheels installed and such cargo units without wheels, will be considered as non-divisible loads (as defined in 23 U.S.C. 127) and may apply for permits exempting them from the State's overall gross vehicle weight limit of 80,000 pounds. Movements in which the sealed containerized cargo unit does not actually travel in international waters or the container is to be opened in any manner during movement between the origin and destination, other than for customs inspection, are not eligible for permits under this rule. Because of the very heavy nature of the load to be carried and the potential for increased damage to the highway from vehicles so loaded, no straight truck, as defined in Section 316.003(70), Florida Statutes, shall be eligible for a permit pursuant to this rule. Criteria for issuance of permit. The applicant must submit proof of the following: That the container for which the permit is sought, is in direct transit to or from an international seaport, for purposes of import or export of the container on an ocean-going vessel; That the container is part of international trade or trade to or from a U.S. jurisdiction outside the continental limits of the United States; That the container must be moved over roads on the State Highway System of the State of Florida, as defined in Chapter 334, Florida Statutes; and A statement swearing that the container for which permit is sought is the container to be directly exported or imported; that the contents of such container are as originally loaded; that the container has not been opened during movement between origin and destination; and that the original contents are not to be added to, dismantled, opened, or divided until they reach the identified final destination. Federal law places a weight limit of 80,000 pounds on all trucks traveling the highways within the state of Florida. Failure by the Department to enforce the law to the satisfaction of the Federal Highway Administration (FHWA) could result in the state's being declared ineligible for a portion of the federal transportation funds allocated to it. While federal and state law authorizes the Department to grant special permits to overweight trucks, it does not require or contemplate that the Department will as a matter of policy allow all sealed containerized cargo to exceed the statutorily-prescribed 80,000 pound weight limit. In December of 1989, the Florida Trucking Association and others filed a lawsuit in Federal District Court challenging the constitutionality of Rule 14-26.0131, Florida Administrative Code. The Department sought to have the lawsuit dismissed, but the Federal Magistrate denied the Department's motion to dismiss. Following the denial of the motion to dismiss, a Department staff attorney, Mr. Reynold Meyer, was asked to review and assess the Department's position in that lawsuit. Mr. Meyer summarized his view of the matter in a memorandum dated October 2, 1990, in which he stated, among other things: On December 8, 1989, the Florida Trucking Association filed the above-referenced law suit challenging the constitutionality of the Department's Containerized Cargo Rule. Thus, the Florida Trucking Association is not only directly attacking the Department's Containerized Cargo Rule but is also indirectly attacking the Federal Highway Administration's policy as stated by Mr. Barnhart. The complaint alleges the Department's Containerized Cargo Rule violates the constitution by (1) placing an undue burden upon interstate commerce; (2) discriminating against intrastate and interstate commerce; and (3) denying the plaintiffs equal protection of the law. If this case goes to trial, Judge Stafford will decide three legal issues. The first legal issue is whether the rule promotes safety upon Florida's highways and conserves their use. The second issue is whether the safety and conservation purposes of the rule outweigh the interference with interstate commerce. The third issue is whether the rule's distinction between international containerized cargoes and all other types of containerized cargoes is rationally related to a legitimate state interest. The first two issues should be decided in the Department's favor. The third issue, however, may not be decided in the Department's favor. Any unfavorable decision on the third issue will be the result of the Department's lack of a rational basis for distinguishing between international containerized cargo and all other types of containerized cargo. Because the rule, in essence, discriminates between international containerized cargo and all other types of containerized cargo the Department's chances of prevailing at trial are forty percent (40%) or less. The Department's General Counsel agreed with the opinion that there was a substantial risk that the rule would be found to be unconstitutional. The Department's General Counsel discussed the matter with the Assistant Secretary for Transportation Policy and with the Secretary of the Department. Ultimately, it was concluded by the Secretary, because of the substantial risk that the rule would be found to be unconstitutional, and because the rule appeared to give an unfair advantage to some shippers that was denied to others, that the rule should be repealed. In reaching this conclusion, the Secretary relied on the advice of counsel and on the recommendation of the Assistant Secretary for Transportation Policy. After deciding to repeal the subject rule, the Department negotiated a settlement of the Federal lawsuit challenging the validity of the rule. An essential aspect of that settlement is that the Department would take the necessary action to repeal the rule. As part of the required rule repeal process, the Department prepared and published a summary of the estimate of economic impact of the proposed rule repeal reading as follows: There will be the normal costs associated with processing a rule repeal under the Administrative Procedure Act. These costs include: Legal review and analysis, word processing typing support, publication of notice and rule text in the Florida Administrative Weekly (Currently 64 cents a line), staffing/coordinating costs, and scheduling or conducting a public hearing. There will be no increased operational costs. The repeal of the rule may increase the cost to some operators by reducing the cargo volume, thus potentially increasing the ultimate price to the consumer of those products. The Department has received a report of the effect the repeal of the rule will have upon the Florida Citrus Packing Industry. The Department has considered this report in its attempt to estimate the cost or benefit of the repeal of the rule. However, the Department does not adopt or reject the facts within the report. The Department does not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. The repeal of the rule promotes competition by equally protecting those carrying cargo units of international, interstate, or intrastate origin or destination. These economic impact statements were based upon material provided by the Department's State Permits Engineer, the Settlement Agreement, and discovery responses in the above mentioned case, the report of the Florida Citrus Packing Industry. The Department considered an economic report from the Florida Citrus Packing Industry, data furnished by the Department's State Permits Engineer, and discovery responses from the Florida Trucking Association in developing the economic impact statement in question. The report from the Florida Citrus Packing Industry was actually prepared by the Florida Department of Citrus. Prior to initiating rulemaking, the Department contacted Mr. Kinney, a representative of Florida Citrus Packers. During that contact, the Department became aware that the industry was preparing an analysis of the impact of the rule repeal on the citrus industry and requested a copy of the report from Mr. Kinney. The Department recognized and considered the fact that the rule repeal would cause some adverse impact to the Florida Citrus Industry but regarded the fact as noncontrolling. In essence, the Department's economic impact statement concluded that the rule repeal would increase the cost of transporting cargo for those who now rely on the rule but that the Department lacked sufficient data to determine the actual economic impact. In developing its economic impact statement, the Department was concerned about the impact on all industries that rely on the rule. The Department believed the entire Florida economic base must be considered in developing any economic impact statement, and concluded that it did not have sufficient data to determine to any degree of specificity the actual economic impact of the repeal of the rule. After the rule is repealed, Petitioners will not be prohibited from applying for overweight permits. Such permits will be afforded consideration on their individual merits. It is, nevertheless, to be expected that after the repeal of the rule the Petitioners will not be granted as many overweight permits as they have been able to obtain with the rule in effect. Repeal of Rule 14-26.0131 will result in a significant 1/ increase in the transportation costs for shipment of Florida citrus to international markets. As a result of those additional costs either the demand for the fruit and fruit products will be adversely affected if the costs are passed along to the buyers or the profitability of the transactions will be reduced if the sellers absorb the additional costs. The Petitioners regularly ship fresh Florida citrus fruit and frozen Florida citrus fruit products to international markets. They regularly transport such products over Florida highways in containerized loads that have a gross weight exceeding 80,000 pounds. Repeal of the subject rule will cause the Petitioners to incur increased transportation costs.
Findings Of Fact CENTRAL FLORIDA's complaint for Unfair Termination in the form of a letter dated July 9, 1986, was filed in triplicate with the Department of Highway Safety and Motor vehicles on July 10, 1986, and alleged as follows: CENTRAL FLORIDA MACK TRUCKS, INC. has two agreements with MACK TRUCK, INC. The first agreement is a Mack Distributor Agreement dated July 1, 1967. The second agreement is a Mack Mid-Liner distributor Agreement dated September 20, 1979. MACK TRUCKS' letter of April 10, 1986, indicates they are "terminating" my agreements. As alleged by Petitioner CENTRAL FLORIDA, Respondent has terminated two Distributor Agreements, the MACK Agreement dated July 1, 1967, and the Mid-Liner Agreement dated September 20, 1979. To the extent the letter/complaint addresses the Mack Distributor Agreement dated July 1, 1967, it should be dismissed upon authority of Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975). In Yamaha, the Florida Supreme Court was faced with the unfair termination statute here at issue, Section 320.641 Florida Statutes, and the issue of its applicability to dealer agreements entered into between manufacturers and dealers prior to the effective date of the statute, January 1, 1971. On the basis of Article I, Section 10, of the U.S. Constitution and Article I, Section 10, of the Florida Constitution, regarding impairment of contracts, the Supreme Court held We hold that Section 320.641, Florida Statutes, applies prospectively to motor vehicles franchise contracts signed after its effective date. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d at 560. Yamaha is unambiguous. Therefore, as to the Mack Distributor Agreement, Section 320.641 does not apply. The Department of Highway Safety and Motor Vehicles, and through it the Division of Administrative Hearings and the undersigned hearing officer, have no jurisdiction to adjudicate the Complaint for Unfair Termination as it addresses the July 1, 1967 Mack Distributor Agreement. This determination was made in an Order entered in DOAH Case No. 86- 2622 on August 28, 1986. Since August 28, 1986, Petitioner has provided a more definite statement as to the Mack Mid-Liner Distributor Agreement which has been determined by the under signed Hearing Officer to be in compliance with her previous order. On October 3, 1986 Respondent moved for severance of the two distributor agreements, which severance was granted by an Corrected Order entered October 27, 1986. That order re-numbered the cause as pertains to the July 1, 1967 Mack Distributor Agreement as DOAH Case No. 86-4136 and retained DOAH Case No. 86-2622 for the cause as it pertains to the Mack Mid-Liner Distributor Agreement. Within its motion, Respondent represented that a recommended order (presumably leading to a final order) be entered at this time. Respondent has shown good cause for granting the relief prayed for. Without such relief, the Mack Distributor agreement hangs in limbo until such time as a recommended order is entered incorporating the August 28, 1986 ruling on the Mack Distributor Agreement and resolving all disputed issues of material fact concerning the Mack Mid-Liner Distributor Agreement is entered (presumably at least 30 days after conclusion of the final formal evidentiary hearing now scheduled to conclude January 6, 1987). Continuation of this situation pending the formal evidentiary hearing on the Mack Mid-Liner Distributor Agreement, typing of transcripts, submission of proposed findings of fact and conclusions of law, entry of a recommended order, filing of exceptions, and entry of the agency's final order prejudices Respondent Mack in that Mack is unable to appoint a new distributor in Central Florida.
Recommendation That the Secretary of the Department of Highway Safety and Motor Vehicles enter a final order dismissing this cause only as the July 1, 1967 Mack Distributor Agreement. DONE and ORDERED this 28th day of October, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 28th day of October, 1986. COPIES FURNISHED: Donald E. Cabaniss, Esquire 11 East Pine Street Post Office Box 1873 Orlando, Florida 32302 Dean Bunch, Esquire 305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302 C. Jeffrey Arnold, Esquire 857 North Orange Avenue Post Office Box 2967 Orlando, Florida 32802
The Issue The issue for consideration herein is whether the Petitioners, MISSCO, GENERAL, AND INTERSTATE should be placed on the convicted vendor list pursuant to Section 287.133 Florida Statutes (1991).
Findings Of Fact The facts stated in the Joint Stipulations to the extent set forth below are hereby adopted as findings of fact: On April 9, 1993, DMS issued notices of intent pursuant to Section 187.133(3)(e)(1), Florida Statutes. Jt. Stips. Appen. at pp. 72-73. On April 13, 1993, MISSCO filed petitions with DMS for a formal hearing pursuant to Section 120.57(1), Florida Statutes, to determine whether it is in the public interest for MISSCO, GENERAL, or INTERSTATE to be placed on the Florida Convicted Vendor List pursuant to Section 287.133, Florida Statutes. Jt. Stips. Appen. at p. 74-77. Subparagraph 287.133(3)(e)e., Florida Statutes, establishes factors which, if applicable to a convicted vendor, will mitigate against placement of that vendor upon the convicted vendor list. On April 5, 1991, General Equipment Manufacturers, Inc., (hereinafter "General"), a Mississippi corporation, and wholly owned subsidiary of MISSCO Corporation, was convicted of the commission of a public entity crime as defined within subsection 287.133(1)(g), Florida Statutes. Jr. Stips. p. 1, Appen. at pp. 41-43. A criminal information was filed in the United States District Court for the Southern District of Mississippi against General Equipment Manufacturers, Inc., alleging a violation of Section 1001, Title 18, United States Code and applicable Federal Acquisition Regulations which occurred on or about December 2, 1988. Jt. Stips. p. 1, Appen. at p. 40. The criminal information filed in the United States District Court, Southern District of Mississippi charged General with falsely representing on or about December 2, 1988 that the equipment schedule and price list submitted to the General Services Administration (hereinafter GSA) was General's established commercial price list. (Jt. Stips. p. 2, Appen. at p. 40. Upon entry of a plea of guilty, the Court entered a judgement against General which was filed April 5, 1991. The judgement required payment of a special assessment of $200, a fine in the amount of $10,000, without interest, and restitution in the amount of $28,000. Jt. Stips. p. 2, Appen. at pp. 40-48. The GSA issued Solicitation No. FCGS-X8-38010-N for FSC Group 66 Part II, Section P, Laboratory/Pharmacy Furniture. General submitted an offer dated August 18, 1988, and signed by Charles H. Wright, General Manager of General's SystaModules Division. In connection with its offer, General submitted its purported commercial price list dated January 31, 1987. Mr. Wright certified in Section M-FSS-330, M.3, Basis for Price Negotiation, Item (c), Certificate of Established Catalog or Market Price, that: The price(s) quoted in General's proposal is based on established catalog or market prices of commercial items, as defined in FAR 15.804-3(c), in effect on the date of the offer or on the dates of revisions submitted during the course of negotiations. Substantial quantities of the items have been sold to the general public at such prices. All of the data, including sales data, submitted with General's offer are accurate, complete, and current representations of actual transactions to the date when price negotiations are concluded. By letter dated December 2, 1988, Mr. Wright, in his capacity as General Manager of General's SystaModules Division, certified on behalf of General that: . . . all data submitted with General's offer pursuant to the discount schedule ad marketing data sheets and any other data submitted as as part of General's offer on Solicitation FGS-X8-38010-N are current, accurate, and complete a of the conclusion of negotiations, which occurred on December 2, 1988. Jt. Stips. p. 2-3, Appen. at pp. 51-53. On the basis of General's offer on Solicitation No. FGS-X8-38010-N, the GSA awarded General Contract No. GS-00F-06709 on December 13, 1988. The contract was for the period February 1, 1989, through January 31, 1992. Jt. Stips. p. 3-4, Appen. at p. 53. An investigation by the Federal Bureau of Investigation determined that General provided the GSA with fabricated price lists in connection with FGS-X8-38010-N. Jt. Stips. p. 4, Appen. at pp. 53-54. The details of the criminal information against General are discussed in the findings and determination made by the GSA Office of Acquisition Policy, dated May 18, 1992, which are incorporated herein by reference. Jt. Stips. Appen. at pp. 49-71). Particular findings are as follows: Federal debarment was imposed on General and its corporate officials Messrs. Wright and Majure. Jt. Stips. Appen. at p. 50. The debarments were effective throughout the Federal Executive Branch. The debarment precluded the award, renewal, or extension of federal contracts. Jt. Stips. Appen. at p. 50. Debarment proceedings were initiated by separate notices dated November 1, 1990 based on a referral from the Federal General Services Administration (GSA), Office of Inspector General (OIG). Jt. Stips. Appen. at p. 51. General bid on GSA Solicitation No. FGS-X3-36426-N and in connection with its offer General submitted a "dealer retail price list," and certified that: its prices were based on established catalog or market prices, substantial quantities of the items had been sold to the general public at said prices: and that all of the data submitted with its offer was accurate, complete and current representations of actual transactions up to the date when price negotiations were concluded. Jt. Stips. Appen. at p. 51. General's offer on the solicitation was accepted and it was awarded contract number GS-00F-70316 on April 19, 1984. Jt. Stips. Appen. at p. 52. On June 28, 1985 General made the same representations as to GSA Solicitation No. FGS-X8-38000-N for laboratory and pharmacy furniture. The award was made to General on December 9, 1985. Jt. Stips. Appen. at p. 52. Identical representations were made by General in response to GSA Solicitation No. FCGS-X8-38010-N issued on July 7, 1988. The solicitation was for laboratory and pharmacy furniture. The award was made to General on December 13, 1988. Jt. Stips. Appen. at p. 53. Criminal Information Number J90-00080(B) was filed in the U.S. District Court for the Southern District of Mississippi on November 15, 1990. The information was based on the FBI investigation of General's submission of false commercial price lists to GSA. The criminal information charged General with violating Title 18, U.S.C. 1001 in connection with its offer on Solicitation No. FGS-X8-38010-N. It alleged that General knowingly, willfully, and falsely represented to GSA that the equipment schedule and price lists submitted with General's 1988 offer was General's established commercial price list. Jt. Stips. Appen. at p. 54. General pled guilty to Criminal Information No. J90-00080(B) on December 19, 1990 and was ordered to pay a fine of $10,000 and to make just restitution to the GSA in the amount of $28,000. The conviction was also used as the basis for the federal debarment of General. Jt. Stips. Appen. at p. 54. Mr. Wright and Mr. Majure were also debarred by virtue of their conduct in connection with the General conviction. Jt. Stips. Appen. at pp. 54- 59. General and MISSCO are affiliated companies. General is a wholly-owned subsidiary of MISSCO. MISSCO is directed and governed by its executive committee which acts in lieu of the board of directors. Mr. Majure was a director of MISSCO, a member of MISSCO'S executive committee, a senior vice president of MISSCO, and president, director, and general manager of General. Jt. Stips. Appen. at p. 59. Mr. Majure held a position of substantial responsibility in both MISSCO and General, and through MISSCO's control group is accountable for the circumstances of General's crime. Jt. Stips. Appen. at p. 60. A decision not to impose federal debarment on MISSCO was predicated on MISSCO management's decision to ensure that it did not supply the Federal government with the same goods and services formerly provided by General during the period of General's debarment: MISSCO management made a commitment to emphasize ethical business practices: the people responsible for General's crime were no longer employed by MISSCO: the GSA administrative record (with the exception of General) does not indicate a lack of business integrity or poor performance on federal contracts. Jt. Stips. Appen. at pp. 61-63. Federal debarment of General was predicated upon the following: conviction of the crime of making false statements posed a substantial risk to government business dealings: General submitted false information on solicitations over an extended period of time: General fabricated price lists and false certification son two prior solicitations: General's crime posed a substantial danger to the integrity of the Federal government's MAS program: the accountable individuals for the crime were high-ranking officials at General. Jt. Stips. Appen. at pp. 63-66. The federal debarment proceedings found mitigating factors in that: the parties pled guilty and cooperated with the Department of Justice throughout the investigation: the parties cooperated with GSA throughout the debarment proceedings: General was not charged with deliberate overcharges on its federal MAS contracts: General promptly paid its fine and restitution: General has made good faith efforts to undertake remedial action. Jt. Stips. Appen. at pp. 68-69. On April 9, 1993, Respondent issued Notices of Intent pursuant to Section 287.133(3)(e)1, Florida Statutes, which were received by the Petitioners. Jt. Stips. p. 5, Appen. at pp. 72-73. On April 13, 1993, Petitions filed petitions pursuant to Section 287.133(3)(e)2, Florida Statutes, and Section 120.57(1), Florida Statutes, requesting an order determining that it is not in the public interest for Petitioners to be placed on the State of Florida Convicted Vendor List. Jt. Stips. p. 5, Appen. at pp. 74-75. MISSCO is a holding company which has a number of operating divisions and two wholly-owned subsidiary corporations, General Equipment Manufacturers (General) and MISSCO Exports Corporation (Exports). Jt. Stips. p. 2, Appen. at pp. 35-36. Interstate of Florida is a Division of MISSCO and is a dealer (re- seller) of General's products. Jt. Stips. p. 2. General and MISSCO are commercially distinguishable and they do not occupy the same facilities. MISSCO's primary lines of business are distribution of school equipment and supplies, office equipment and supplies, and commercial printing. Jt. Stips. p. 4. MISSCO Exports is an entity formed solely for accounting and tax purposes, has no employees, and does not engage in substantive commercial operations. Jt. Stips. p. 4. MISSCO has extensive dealings with the federal government, as supplier of goods manufactured by other entities. General is the only MISSCO entity that contracts with the government under the Multiple Awards Schedule (MAS) program. General's primary line of business is manufacturing institutional furniture. Jt. Stips. pp. 4-5. In compliance with paragraphs 287.133(3)(a) and (B), Florida Statutes, MISSCO made timely notification to the DMS and provided details of the conviction of General, by letter dated March 24, 1992 and provided copies of the criminal information, judgement and related correspondence. Jt. Stips. p. 5, Appen. at pp. 37048. Payment of the fine in the amount of $10,000 and restitution in the amount of $28,000 imposed by the conviction and judgement entered April 5, 1991 were promptly paid by General on April 15, 1991. Jt. Stips. pp. 5-6, Appen. at pp. 47-48. Subsequent to the criminal information filed in the United States District court, Southern District of Mississippi in November of 1990, General entered a plea of guilty to the charge, thus eliminating the necessity for further investigation and trial. Jt. Stips. p. 6. The GSA in its findings and determination dated May 18, 1992, cited mitigating factors favorable to General and MISSCO. The factors included, cooperation with the Department of Justice throughout its investigation; cooperation with the GSA throughout the debarment proceeding; constructive dealings by counsel for MISSCO and General with the GSA Office of General Counsel on issues relating to the restrictions on MISSCO and General's business relationship with the government and government prime contractors. Jt. Stips. p. 6, Appen. at pp. 68-69. MISSCO fully cooperated with the DMS in connection with its investigation initiated pursuant to Section 287.133, Florida Statutes. Jt. Stips. p. 6. MISSCO formally filed its disclosure pursuant to Section 287.133(3)(b), Florida Statutes with the DMS by letter dated March 24, 1992, together with exhibits attached thereto. The letter specifically referred to the criminal information filed against General and the judgement entered by the Federal District Court. A copy of the criminal information and judgement were enclosed with the letter, together with a copy of correspondence between MISSCO and the GSA. Jt. Stips. pp. 8-9, Appen. at pp. 37-39. In response to a request dated April 15, 1992 from the DMS for additional information, MISSCO promptly furnished all such information. Jt. Stips. p. 9. At its meeting held December 17, 1992, the Board of Directors of MISSCO was convened and all of the offices then held by Mr. James T. Majure, former President of General, were declared vacant and other persons were elected to those positions. Jt. Stips. p. 7, Appen. at pp. 2, 67, 70. Mr. Charles Wright was retired from General under a medical disability prior to 1990. Jt. Stips. p. 7. MISSCO Corporation fully cooperated with the GSA by proposing and implementing remedial measures including the presentation of an Ethics Seminar by Mr. Norman Roberts, past chairman of the American Bar Association's section on government contracting. Jt. Stips. p. 7. MISSCO revised its corporate Code of Ethics, revised its Employee Handbook, installed an 800 hotline telephone number permitting employees to communicate any concerns regarding business ethics, designated a Corporate Vice President as the Ethics Compliance Officer, appointed a committee of three corporate executives to monitor corporate business activities, and revised its internal audit procedures to insure that no cash is unaccounted for which might be used for the purpose of kickbacks. Jt. Stips. pp. 7-8, Appen. at pp. 28-33, 62-63. MISSCO's management undertook prompt and verifiable action to comply with the restrictions imposed on MISSCO's business dealings with the government after notices of proposed debarment. General promptly and voluntarily withdrew from the GSA contract that was tainted by the submission of a fabricated commercial price list during negotiations. Jt. Stips. p. 8. MISSCO had a code of business ethics in place when the circumstances leading to General's conviction arose. The code was amended following the initiation of debarment proceedings to specifically address the importance of truthful certifications and providing accurate information in connection with business transactions with the government. Jt. Stips. p. 8. MISSCO substantially expanded its corporate ethics compliance program and undertook extensive training in business ethics. A detailed "ethics audit" was undertaken by MISSCO, and the results of this audit were provided to the GSA. Jt. Stips. p. 8, Appen. at pp. 10-22, 28-34. General sells its products through a dealer network and not through factory direct sales. General has a dealer agreement with Interstate of Florida for the sale of its products in Florida to private and public entities. Jt. Stips. p. 9. Interstate of Florida, a division of MISSCO Corporation of Jackson, is a dealer (re-seller) of General's products. There are other dealers throughout the United States which also market and sell General's products. Interstate of Florida had gross sales of approximately $6.8 million in fiscal year 1990-91. Approximately 99 percent of those sales were to public entities. Jt. Stips. p. 9. Interstate of Florida is primarily an educational sales company which sells educational contract furnishings such as laboratory casework, auditorium seating, and folding bleachers. It has conducted business with almost every school district in Florida. The largest transactions have been conducted with the school districts of Dade and Orange Counties in Florida. The largest municipal transactions have been conducted with the City of Tallahassee. Jt. Stips. p. 10.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Department not place the names of the Petitioners on the Florida Convicted Vendor List. DONE and ENTERED this 29th day of July, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of July, 1993. COPIES FURNISHED: William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Susan B. Kirkland, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 C. Graham Carothers, Esquire Ausley, McMullen, McGehee Carothers & Proctor Post Office Box 391 Tallahassee, FL 32392 Terry A. Stepp, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Target VanLines was registered with the Department as an intrastate mover of household goods, holding registration number IM 1450. Target VanLines’ registration with the Department expired on February 8, 2008. Since February 2008, all moves by Target VanLlines have been out of state. No dispute exists that Target VanLines is registered as a Florida corporation with the Department of State, Division of Corporations, under corporation number P06000113440. Further, no dispute exists that, previously, Target VanLines was administratively dissolved on September 14, 2007, by the Division of Corporations for Target VanLlines’ failure to file its 2007 annual report/uniform business report. At the time of hearing, Target VanLines’ physical address was 3282 North 29th Court, Hollywood, Florida 33020. Target VanLines’ prior physical address was 5657 Dawson Street, Hollywood, Florida 33023. The Marsha Painter Situation On August 12, 2006, Marsha Painter entered into a contract with Zip to Zip Moving & Storage, Inc. (Zip to Zip) to move Ms. Painter’s household goods from her residence at 1801 East Terra Mar Drive, Fort Lauderdale, Florida into storage with Zip to Zip until she located another residence at which time her household goods would be delivered to her new residence. At that time, the father of Yosef Joey Kramerman, Target VanLines’ representative at hearing, was a 50 percent owner of Zip to Zip. Mr. Kramerman’s father did not testify at hearing. No packing of the household goods was performed by Zip to Zip. The move was considered a local move. The contract with Zip to Zip failed to include and disclose the name, physical location, or telephone number of the storage location. Furthermore, Ms. Painter was not verbally informed by Zip to Zip where the storage facility was located. The storage fee was $160.00 per month, payable on the 13th of every month to Zip to Zip. The fee was sometimes paid monthly and, at times, for a three-month period. For approximately eight months, at the end of October or the beginning of November 2006 to May 2007, Ms. Painter was outside of the United States. During her absence, Ms. Painter’s mother paid the storage fees from Ms. Painter’s personal checking account. Further, during her absence, Ms. Painter’s mother engaged in communications on behalf of Ms. Painter regarding all matters associated with Ms. Painter’s household goods. By letter dated January 4, 2007, to Zip to Zip Ms. Painter’s mother, on Ms. Painter’s behalf, mailed a check in the amount of $480.00 for three months storage to Zip to Zip. Ms. Painter’s mother did not testify at hearing. Target VanLines does not deny that, at some point after the letter dated January 4, 2007, it verbally informed Ms. Painter’s mother that it had taken over Zip to Zip and the storage facility of Zip to Zip; that Target VanLines had taken over the storage of and had possession of her household goods because Zip to Zip had gone out of business; and that future storage payments should be made payable to it, not Zip to Zip.1 Furthermore, Target VanLines admits that it notified Ms. Painter in writing that future storage payments should be made payable to it, not Zip to Zip. By invoice dated March 12, 2007, Target VanLines charged Ms. Painter three months storage, from March 13 through June 13, 2007, in the amount of $480.00. Target VanLines does not deny that it received the $480.00 for storage fees. Target VanLines admits that it provided Ms. Painter with storage services for her household goods and that it was paid for the storage services. Ms. Painter does not deny that she had knowledge, through her mother, that, as of March 12, 2007, Target VanLines had possession of her household goods and that Target VanLines was being paid for storage service. However, Ms. Painter did not execute or authorize a written contract with Target VanLines for storage service. Neither did she execute or authorize a written contract with Target VanLines for moving services. Further, no evidence was presented of any transaction between Zip to Zip and Target VanLines or that Target VanLines had assumed the obligations of Zip to Zip. An inference is drawn and a finding is made that, at all times pertinent hereto, Target VanLines was aware that Zip to Zip failed to include in the written contract with Ms. Painter the name, telephone number, and physical address of the location where her goods were to be stored and that it (Target VanLines) had no written contract with Ms. Painter regarding the storage of her household goods. Furthermore, an inference is drawn and a finding is made that, as of March 12, 2007, at the time of the invoice, Target VanLines had not entered into a written contract with Ms. Painter for the storage of her household goods, which included the name, telephone number, and physical address of the location where her household goods were stored. In June 2007, Ms. Painter contacted Target VanLines for the delivery of her household goods to her new residence. At the time of the first delivery, all of her household goods were not delivered. Over a period of time, she went to three different storage facilities, including at Target VanLines’ prior address on Dawson Street, to identify her household goods because some of her household goods were missing at each delivery, which also resulted in multiple deliveries. An inference is drawn and a finding is made that, since Zip to Zip failed to have a written contract for storage of Ms. Painter’s household goods, which included the name, telephone number, and physical address of the storage location, Target VanLines was not aware as to which storage location Ms. Painter’s household goods were located. Prior to the failure of all of Ms. Painter’s household goods being delivered, Target VanLines failed to provide Ms. Painter with the name, physical address, or telephone number of the storage facilities where her household goods were stored. The Gregory Wood Situation Around September 2007, Gregory S. Wood entered into a contract with Authorized Movers to move his household goods from his residence in Deltona, Florida to his new residence in Bonifay, Florida, at an estimated cost of $4,530.00. The date of the move was September 4, 2007. The contract was prepared on August 29, 2007. Among other things, the contract provided that access for a 52-foot trailer was required. Authorized Movers determined that, because of the quantity of household goods being moved, a 52-foot trailer was required. The cost of the move was charged to Mr. Wood’s credit card before the moving date. Prior to the moving date, Mr. Wood was contacted and informed that, instead of a 52-foot trailer, two 26-foot trucks would be used, with one arriving in the morning and the other arriving later in the day for loading the remainder of the household goods. He was not informed that he would be charged for the second truck, in addition to the contract price, for the move. Mr. Wood was informed on the day of the move that he would be charged for the second truck. The movers arrived at Mr. Wood’s Deltona residence on September 4, 2007, to pack and load his household goods. The movers arrived around 1:30 p.m. in a 26-foot truck that bore no insignia to identify it as Authorized Movers, but the movers wore t-shirts with the logo “Authorized Movers.” The movers discussed additional packing charges for the quantity of packing needed to be performed, but the movers never confirmed the additional charges or specified an amount. The movers did not present any additional documents for Mr. Wood to review or sign. The second 26-foot truck arrived at Mr. Wood’s residence round 7:30 p.m., and the loading of the first 26-foot truck was completed around 10:00 p.m. Mr. Wood decided that, with the lateness of the hour and since he and his wife and child were tired, he would decline the use of the second truck and proceed to the new residence with what was loaded on the first truck. On September 5, 2007, the movers arrived in the 26- foot truck in the afternoon with Mr. Wood’s household goods at his Bonifay residence. The movers refused to unload his household goods unless Mr. Wood paid them $730.00 for unspecified additional charges, which he paid with his credit card. By paying with his credit card, Mr. Wood was charged an additional $28.00 processing fee by the movers, totaling $758.00. The additional charge of $758.00 was processed as a payment to Target VanLines. Not being aware of Target VanLines, Mr. Wood questioned the designation of the payment to Target VanLines; at that time, he was informed by the movers that they were employed by Target VanLines. With the additional payment being successfully processed, the movers unloaded Mr. Wood’s household goods. Target VanLines admits that it was paid the $758.00.2 Target VanLines claims that the additional charge was for additional services performed, such as packing materials and the second truck.3 This charge by Target VanLines was separate and apart from the contract that Mr. Wood had with Authorized Movers. Mr. Wood’s contract was with Authorized Movers, not Target VanLines. Target VanLines admits that it was acting as an agent, i.e., a carrier, for Authorized Movers under the contract between Mr. Wood and Authorized Movers.4 The contract with Authorized Movers did not specify any additional services or the additional amount paid to Target VanLines. Target VanLines did not prepare an additional written estimate or contract for the moving services that it performed. Authorized Movers refunded the $758.00 to Mr. Wood. Furthermore, Authorized Movers deducted the $758.00 from the amount due Target VanLines for the services that Target VanLines rendered as Authorized Movers’ agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order: Finding that Target VanLines, Inc. violated Sections 507.05 and 507.05(4), Florida Statutes (2007). Imposing an administrative fine in the amount of $5,000.00 for a violation of Section 507.05, Florida Statutes (2007), and in the amount of $2,500.00 for a violation of Section 507.05(4), Florida Statutes (2007). DONE AND ENTERED this 15th day of October 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 15th day of October, 2008.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by William F. Quattlebaum, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Letter of Dismissal, 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 and ADJUDGED that Respondent, Larkin Motorworks, LLC d/b/a St. Pete Scooter, be granted a license to sell motorcycles manufactured by Guangdong Qingxin Liantong Industry Co. Ltd. (QNGX) at 3029 Dr. Martin Luther King Jr. Street North, St. Petersburg Filed November 28, 2012 4:25 PM Division of Administrative Hearings (Pinellas County), Florida 33704, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. DONE AND ORDERED this Aq day of November, 2012, in Tallahassee, Leon County, Florida. Bur€éau 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 a! I day of November, 2012. 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. JBijc Copies furnished: Ronald Larkin Larkin Motorworks, LLC 3029 Dr. Martin Luther King Jr. Street North St. Petersburg, Florida 33704 Brett Moorer Parallel Intelligent Transportation, Inc. 6950 Central Highway Pennsauken, New Jersey 08109 Peter M. Spoto Worldwide Scooters, Inc. 457 Highland Avenue Dunedin, Florida 34698 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 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 by T. Kent Wetherell, II, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Red Streak Scooters, LLC and Austin Global Enterprises, LLC d/b/a New Scooters 4 Less to sell motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 118 Northwest 14 Avenue, Suite D, Gainesville (Alachua County), Florida 32601. DONE AND ORDERED this Buy of July, 2009, in Tallahassee, Leon County, Florida. LA. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divisig otor Vehicles this day of July, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Collin Austin Austin Global Enterprises, LLC 118 Northwest 14" Avenue, Suite D Gainesville, Florida 32601 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Marc J. Kradolfer RPM Motorcycles, Inc. 518 Southeast 2" Street Gainesville, Florida 32601 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 T. Kent Wetherell, IT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 28 JUN 19 A 10 Sp Witte pe STP uly SAT ye TRATIVE ARINGS RED STREAK SCOOTERS, LLC and AUSTIN GLOBAL ENTERPRISES, LLC, d/b/a NEW SCOOTERS 4 LESS ay Petitioner, : Case Number: 09-2851 RPM MOTORCYCLES, INC. Respondent. SSS Lid Y Di: 5 COMES NOW, Petitioner, Austin Global Enterprises, LLC is stating a notice of voluntary dismissal. Since RPM Motorcycles, Inc. already has the ZHEJ line make established on their license, Austin Global Enterprises, LLC d/b/a New Scooters 4 Less no longer wishes to continue with the hearing and pursue establishing the ZHEJ line make at its location. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was served by US Mail to T. Kent Wetherell, Il., Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060; Marc J. Kradolfer, as agent for Respondent RPM Motorcycles Inc., 518 Southeast 2” Street, Gainesville, Fl 32601 on June 8, 2009. AUSTIN GLOBAL ENTERPRISES, LLC Collin Austin, Managing Member Representative for Petitioner 118 NW 14” Avenue, Suite D Gainesville, FL 32601 Telephone: 352-336-1271
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
