The Issue Whether the Respondent knowingly sold rebuilt vehicles without disclosing in writing to the purchaser, customer, or transferee that the vehicles were previously titled as rebuilt vehicles.
Findings Of Fact The Respondent, Charles R. Kuhn, III, is and was at all times relevant to the allegations in the administrative complaint a licensed independent motor vehicle dealer in Florida. The Respondent did business in the name A-1 Auto and Truck Center and was located at 12180-1 Phillips Highway, Jacksonville. The Department is the state agency authorized by statutes to regulate licensed independent motor vehicle dealers and to maintain the titles of motor vehicles in the State of Florida. Pam A. Albritton testified about her experiences buying a vehicle from the Respondent. On August 22, 2003, as reflected by the date on the installment sales contract, Albritton purchased a 2000 Volkswagen (VW), VIN (Vehicle Identification Number) 3 VWSD 29 M1YM 197846, for $8,281.80. The Respondent did not at any time provide Albritton with a written statement that the vehicle she purchased, VIN 3 VWSD 29 M1YM 197846, hereafter the Albritton vehicle or car, was a rebuilt vehicle and had been previously titled as a rebuilt vehicle. The Respondent did not tell Albritton that this vehicle was a rebuilt vehicle. Albritton did not see the certificate of title to the vehicle until after the sale of the vehicle. Albritton took the car to an authorized VW dealer in November of 2003 because it was not shifting gears properly. The dealer found that the vehicle had suffered extreme damage from an accident and needed extensive repairs to the engine control system and the airbag in order to make the car safe to drive. The dealer told Albritton what had been found and advised her not to drive the car until it had been repaired. Albritton confronted the Respondent about the problems with the vehicle, and the Respondent gave her a handwritten "warranty" dated November 20, 2003. Pursuant to this agreement, Albritton took the car to the Respondent to have the seatbelts fixed; however, the repairs did not actually make the belts safe because the seatbelt retractor mechanism would not lock. In December of 2003, the wheel bearings on Albritton's car broke, and she contacted the Respondent about getting the car fixed. She was informed that the Respondent was away for two weeks, and nothing could be done until he returned. Needing her car for transportation in her work, she paid $200 to have the wheel bearings repaired. Pursuant to a mediation agreement, Albritton agreed to settle her complaint against the Respondent on the basis that he would get her a comparable vehicle. The Respondent was supposed to contact Albritton within 30 days of the mediation but failed to do so. The records introduced at hearing show that Albritton's vehicle had been re-titled as a rebuilt vehicle. Such a title indicates that the vehicle in question had been written off as an insurance loss and the original title cancelled or destroyed. Thereafter, the vehicle was repaired, and the person making the repair obtained a new title, which when issued, showed that the vehicle was rebuilt. Aylwin S. Bridges testified regarding his purchase of a VW from the Respondent. On or about June 14, 2003, Aylwin S. Bridges, purchased a 2000 VW, VIN 3 VWTE 29 MXYM 135556, from the Respondent for $11,555.00. Neither prior to nor at the time of the sale did the Respondent provide Bridges a written statement that the 2000 VW, VIN 3 VWTE 29 MXYM 135556, was a rebuilt vehicle. The Respondent did not tell Bridges that the car he was purchasing was rebuilt. The records introduced at hearing show that the Bridges' car had been re-titled as rebuilt. Bridges did not see a certificate of title to the vehicle prior to the sale of the vehicle. The Bridges' vehicle had extensive mechanical problems. For example, the engine control module had been spliced into the car and several codes had been deleted from it; the seat belts would not work; and the horn would not work. When Bridges sought to trade the vehicle, he found that the most he was offered for the car was only $2,500 because it was rebuilt. The Respondent testified in his own behalf. He did not deny having failed to disclose to Albritton and Bridges in writing prior to selling them their cars that the vehicles had previously been titled as rebuilt vehicles. The Respondent introduced a general disclaimer, Respondent's Exhibit 7, which was provided to Albritton and Bridges. This disclaimer states that the purchaser is buying a used car and that used cars may have any one or more of the listed problems. The Respondent testified that he knew the cars were rebuilt, but felt he had complied with the legal requirements of disclosure by providing the buyers with the aforementioned disclaimer. The specifics of the disclaimer are discussed in the Conclusions of Law for purposes of continuity, but are findings of fact.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order finding that the Respondent violated Section 319.14, Florida Statutes, on two occasions; fine Respondent $1,000 for each violation; and suspend the Respondent's license for six months for each violation, said suspensions to run consecutively, and that payment of the fine be a condition precedent to re-issuance of a license. DONE AND ENTERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 1st day of February, 2005. COPIES FURNISHED: Charles Patrick Kuhn, III A-1 Auto and Truck Center 12180-1 Philips Highway Jacksonville, Florida 32256 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite A432 2900 Apalachee Parkway Tallahassee, Florida 32399 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Suite B439 2900 Apalachee Parkway Tallahassee, Florida 32399
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s letter of withdrawal of protest of the establishment of AutoNation Dodge of Pembroke Pines, Inc., 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 and ADJUDGED that Respondent, AutoNation Dodge of Pembroke Pines, Inc. be granted a license for the sale and service of Jeepr passenger cars and light trucks manufactured by Chrysler (JEEP) 13601 Pines Boulevard, Pembroke Pines (Broward County), Filed January 27, 2012 3:47 PM Division of Administrative Hearings Florida 33027 upon compliance with all applicable requirements of section 320.27, Florida Statutes, and all applicable Department rules. DONE AND ORDERED this A‘! day of January, 2012, in Tallahassee, Leon County, Florida. skill, Assistant Deputy Director 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 | __ day of January, 2012. Nalini Vinayak, Dealer Ycense 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. MDM/jde Copies furnished: Thomas H. Yardley, Esquire Law Office of Thomas H. Yardley 1970 Michigan Avenue, Building D Cocoa, Florida 32922 Phil Langley Chrysler Motors, LLC 10300 Boggy Creek Road Orlando, Florida 32824 R. Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 June C. McKinney 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 MASSEY-YARDLEY CHRYSLER PLYMOUTH, INC., Petitioner, vs. Case No. 11-6492 CHRYSLER GROUP CARCO, LLC, AND AUTONATION DODGE OF PEMBROKE PINES, INC., Respondents.
The Issue The issue in this case is whether the existing franchised Infiniti dealers who register new motor vehicle retail sales or leases are not providing adequate representation of the Infiniti line-make in the community or territory in which Respondent Nissan North American, Inc. ("Infiniti"), intends to establish Respondent M10 Motors, Inc., d/b/a Infiniti of Coral Gables, Inc. ("M10"), as a dealer for the sale and service of Infiniti vehicles, such that the license granting approval to establish M10 should be granted.
Findings Of Fact The Parties, Notice, and Standing Respondent Infiniti is a distributor of Infiniti brand vehicles and products2/ and is a "licensee" as defined in section 320.60(8). Respondent M10 is the proposed Infiniti brand motor vehicle dealership whose establishment in Coral Gables, Florida, is at issue in this case. Petitioner South Motors is a "motor vehicle dealer"3/ as that term is defined in section 320.60(11)(a). South Motors is engaged in the business of selling Infiniti brand vehicles and products from its dealership facility located at 16195 South Dixie Highway, Palmetto Bay, Florida. On April 4, 2014, the DHSMV published two notices in the Florida Administrative Register, one announcing Infiniti's intent to allow the establishment of M10 as an Infiniti dealership with additional service facilities at 4001 Ponce de Leon Boulevard, Coral Gables, Miami-Dade County, Florida ("14-2069 Notice"); and the other announcing Infiniti's intent to allow the establishment of M10 as a dealership for the sale and service of Infiniti vehicles at 2701 Le Jeune Road, Coral Gables, Miami-Dade County, Florida ("14-2070 Notice"). As more fully discussed below, the language of these notices makes abundantly clear that M10 is not seeking to establish an independent service-only dealership on Ponce de Leon Boulevard, but is instead proposing to establish a service location to be operated in conjunction with the sale and service intake facility to be located on Le Jeune Road.4/ South Motors is located within 12.5 miles of both the proposed M10 sales and service dealership location at 2701 Le Jeune Road and the proposed service location at 4001 Ponce de Leon Boulevard. The Existing Dealerships in Southeast Florida South Motors and Warren Henry Infiniti ("Warren Henry") currently are the only Infiniti dealers in Miami-Dade County. Warren Henry is located at 20850 Northwest 2nd Avenue, Miami, in northeastern Miami-Dade County near the Broward County line. It opened in 1989 and has been in business at its current location for over 25 years. Warren Henry has not protested the proposed establishment of M10. South Motors5/ is located in Palmetto Bay, in southern Miami-Dade County. It opened shortly after Warren Henry, and has been in business at its current location for approximately 25 years. Warren Henry and South Motors are approximately 26 air miles and 28.5 drive miles apart. The area between Warren Henry and South Motors is urban, heavily populated, and characterized by heavy traffic congestion. Miami Gardens, North Miami Beach, Miami Beach, Miami, Coral Gables, Cutler Bay, and Kendall are among the communities located between Warren Henry and South Motors. There is no Infiniti dealership located between Warren Henry and South Motors. Recent data show that there are approximately 18,000 competitive luxury vehicle registrations6/ per year in the Coral Gables area. This is approximately three times the number of competitive registrations in the average primary market area ("PMA")7/ throughout the U.S., making the Coral Gables area one of the top three luxury vehicle markets in the United States. At approximately 10.6 air miles and 11.2 drive miles away, South Motors would be the closest existing Infiniti dealership to the proposed M10 dealership. At approximately 15.6 air miles and 17.3 drive miles away from the proposed M10 dealership, Warren Henry would be the next closest existing dealership to the M10 dealership. In March 2013, notice was published that Infiniti intended to relocate Warren Henry approximately five miles to the southeast of its current location, still within its own PMA. That proposed relocation has not been withdrawn, but as of the final hearing in this proceeding, Warren Henry had not secured a lease on the property at the site of the proposed relocation, and the status of its relocation remains uncertain.8/ There are three Infiniti dealerships in Broward County: Lauderdale Infiniti, Sawgrass Infiniti, and Infiniti of Coconut Creek. Lauderdale Infiniti and Sawgrass Infiniti are 10.7 air miles and 18.7 drive miles apart; Lauderdale Infiniti and Infiniti of Coconut Creek are 10.3 air miles and 13.3 drive miles apart; and Sawgrass Infiniti and Infiniti of Coconut Creek are 8.0 air miles and 10.5 drive miles apart. Lauderdale Infiniti is approximately 28.1 air miles and 31.5 drive miles from the proposed M10 dealership.9/ Sawgrass Infiniti is approximately 31.0 air miles and 38.6 drive miles from the proposed M10 dealership. Infiniti of Coconut Creek is approximately 36.6 air miles and 38.4 drive miles from the proposed M10 dealership. The Community or Territory Before determining whether the existing franchised Infiniti dealers are not providing adequate representation of the Infiniti line-make,10/ the pertinent community or territory ("comm/terr")——that is, the relevant geographic area for purposes of such determination——must be identified. The term "community or territory" is not defined in Florida Statutes, so the comm/terr particular to establishing the dealership at issue must be determined on a case-by-case basis. In determining the boundaries of the comm/terr, one factor considered is a dealer's area of responsibility designated in the manufacturer's franchise agreement. Specifically, Infiniti enters into a franchise agreement with each motor vehicle dealer of the Infiniti line- make. Pursuant to this agreement, which is titled the "Dealer Sales and Service Agreement" ("Dealer Agreement"), Infiniti designates a geographical area, the "PMA," for the particular dealer. Under the Dealer Agreement, the PMA is the "geographic area which is designated as the Dealer's sales and service responsibility for Infiniti Products in a Notice of Primary Market Area issued by the Seller [Infiniti] to the Dealer." A dealer's PMA is the area, consisting of census tracts, in which that dealer generally is physically closer to customers, so has a geographic advantage over other dealers for sales and service. Under the Dealer Agreement, the dealer is expected to actively and effectively promote, through its own advertising and sales promotion activities, the retail sale of Infiniti line-make vehicles to customers within its PMA. Infiniti uses the PMA as a tool to evaluate the dealer's performance of its sales obligations under the Dealer Agreement. Infiniti expects each dealer to provide adequate representation of the Infiniti line-make within its own PMA. The PMA is not an exclusive sales territory, and dealers are free to sell and service Infiniti products to customers anywhere in the U.S., including in other dealerships' PMAs. Here, Infiniti takes the position that the appropriate comm/terr consists of the so-called "Miami-Dade PMAs," which it collectively refers to as the "Miami-Dade Comm/Terr." The Miami-Dade Comm/Terr consists of the designated PMAs for South Motors Infiniti, Warren Henry Infiniti, and the proposed Coral Gables PMA11/ that will be established for M10. These three PMAs effectively cover the Miami-Dade County area.12/ In support of this position, Infiniti presented the testimony of its expert witness, Sharif Farhat, Vice President of Expert Services for Urban Science Applications, Inc. ("Urban Science"), an automotive industry performance and marketing consulting company. As part of his marketing and performance analysis regarding the Coral Gables open point, Farhat thoroughly researched the sales and customer shopping patterns in the Southeast Florida metropolitan area, which includes Palm Beach, Broward, and Miami-Dade counties. Based on his research and his experience with vehicle markets in the Southeast Florida area, Farhat opined that Miami- Dade County and Broward County constitute separate Infiniti sales markets and that, with only occasional exception, customers in each county shop for vehicles within their own county. Farhat's opinion was based on empirical data showing that South Motors made 96.4 percent of its sales within the Miami-Dade PMAs and Warren Henry made 83.5 percent of its sales within the Miami-Dade PMAs. Further, the data showed that the three Infiniti dealers in Broward County made significantly smaller percentages of their vehicle sales in Miami-Dade County than they did in Broward County. Specifically, Infiniti of Coconut Creek made 10.4 percent of its sales in the Miami-Dade PMAs, Sawgrass Infiniti made 29.5 percent of its sales in the Miami-Dade PMAs, and Lauderdale Infiniti made 33.7 percent of its sales in the Miami-Dade Comm/Terr. Within the Coral Gables PMA, in-selling by the Infiniti dealers in Broward County amounted to less than 9 percent of each dealer's nationwide sales. The data also show that only very small percentages of customers within Broward County purchase Infiniti vehicles from the Miami-Dade County dealers. From this information, Farhat opined that there is little connectivity between Broward County and the Miami-Dade PMAs, and Broward County and Miami-Dade County comprise separate and distinct motor vehicle sales markets. This is because Broward County and Miami-Dade County are large, congested urban areas, with the dealerships in one county generally separated by considerable distance from those in the other county. Connectivity between customer base and the dealerships is a key factor in determining the comm/terr. Lack of connectivity indicates a separate market area and customer base. Here, Farhat's research showed a lack of connectivity between the customer base in Broward County and the dealerships in Miami-Dade County, due to the considerable drive distances and congested traffic conditions that exist between Broward and Miami-Dade counties. Under these circumstances, it is not reasonable to expect that customers in Broward County would travel substantial distances into Miami-Dade County for vehicle purchase and service, particularly when there are three Infiniti dealerships in Broward County. Likewise, it is not reasonable to expect customers in Miami-Dade County to travel north to Broward County for vehicle purchase and service. It also would be unreasonable for Infiniti to expect its dealers in Miami-Dade and Broward counties to adequately cover and represent the Infiniti brand throughout both counties. These conditions indicate that the Broward County dealerships and Miami-Dade County dealerships are in separate customer markets, and support the conclusion that the Miami-Dade Comm/Terr is the appropriate comm/terr in this proceeding. South Motors takes the position that the applicable comm/terr is the so-called "Southeast Florida Metro" market, which consists of Miami-Dade County, Broward County, and a very small part of Palm Beach County. In support of this position, South Motors presented the testimony of Joseph Roesner, President of the Fontana Group, Inc., and an expert in local retail automobile industry and dealer performance analysis. In opining that the Southeast Florida Metro market is the appropriate comm/terr, Roesner relied heavily on provisions in the Infiniti dealer franchise agreement stating that when a dealer is located in a metropolitan area in which other authorized Infiniti dealers are located, combined and individual dealer sales performance may be evaluated based on and compared to the sales of Infiniti vehicles within the metropolitan area. He also relied on marketing studies performed by Urban Science for Infiniti in 2008 and 2013 addressing dealer performance focused on the Southeast Metro market. According to Roesner, these dealer agreement provisions and market studies indicate acknowledgement by Infiniti itself that the Southeast Florida Metro market is the appropriate comm/terr.13/ However, Roesner conceded that the dealer franchise agreement is not necessarily determinative of the applicable comm/terr, that the comm/terr is not the same in every case, and that buyer behavior and distance between the customer base and dealerships are relevant to determining the comm/terr. Roesner noted that there is some cross-selling between the Infiniti dealerships in Broward County and customers in Miami-Dade County. However, he recognized that there is significantly more cross-selling in the Miami-Dade County PMAs by South Motors and Warren Henry than by the Broward County dealerships. He acknowledged that this is due, at least in part, to the long distances between the Broward County dealers and the Miami-Dade PMAs. On these bases, Roesner acknowledged that there is merit to considering the Miami-Dade Comm/Terr as an appropriate comm/terr in this proceeding. The persuasive evidence shows that the Miami-Dade Comm/Terr is the appropriate comm/terr in this proceeding. Adequacy of Representation of the Infiniti Line-Make in the Miami-Dade Comm/Terr As previously stated, the purpose of this proceeding is to determine whether the existing franchised dealers who register new Infiniti motor vehicle retail sales or leases in the Miami-Dade Comm/Terr are not providing adequate representation of the Infiniti line-make within the Comm/Terr. The discussion below addresses the background pertinent to this determination and addresses the statutory factors in section 320.642(2)(b) with respect to this determination. Background Regarding South Motors, Coral Gables Open Point Designation, and Selection of M10 to Fill the Open Point South Motors' dealership is located on several parcels of land in Palmetto Bay.14/ Its main sales and service facility is located at 16591 South Dixie Highway, and it also has an off- site non-visit service facility about half a mile from its main facility, consisting of 16 service bays and 13 vehicle lifts, where heavy mechanical repairs are performed. Additionally, South Motors owns an off-site storage lot where it stores approximately 200 additional new inventory vehicles. South Motors has not experienced any operational difficulties or problems due to operating vehicle service and storage facilities offsite from its main dealership location on South Dixie Highway. Due to its age, South Motors' appearance is outdated and does not comply with the Infiniti Retail Environment Design Initiative ("IREDI") standards. IREDI is an Infiniti design program that sets standards for the appearance of Infiniti dealership facilities, and its purpose is to establish a consistent luxury image that promotes the Infiniti brand to luxury vehicle customers. Recently, South Motors committed to renovating its South Dixie Highway facility to meet the IREDI standards. To that end, Infiniti has committed, pursuant to an IREDI Dealer Participation Agreement, to provide $550,000 to South Motors to enable it to upgrade its dealership facility to IREDI standards. It is reasonable to anticipate that the upgrade of South Motors' facility to IREDI standards will enhance its competitive position in the luxury vehicle market. Even though South Motors is not compliant with IREDI standards, it nonetheless currently performs relatively well when compared to other Infiniti dealers in the southeastern U.S., with a sales effectiveness15/ of slightly over 100 percent. In large measure, South Motors' current satisfactory sales effectiveness level is due to the geographic extent of its PMA, which does not include the area comprised of the Coral Gables area where Infiniti has created the open point.16/ Between 2004 and 2008, South Motors' PMA did encompass a substantial amount of the area encompassed in the Coral Gables open point. During that time, South Motors performed very poorly, with a sales effectiveness of approximately 50 percent. This made South Motors the lowest performing dealership in the eastern U.S. and among the lowest performers in the entire country. At that time, South Motors asserted that its PMA was too large, that it could not adequately serve the Coral Gables area from its Palmetto Bay location, and that it was difficult for customers in Coral Gables to drive to the dealership to purchase vehicles or have them serviced. South Motors also asserted that it would be better positioned to cover the Coral Gables area if it were located further north. Based on a market study performed by Urban Sciences during this timeframe, Infiniti recommended that South Motors relocate approximately five miles north, to the Kendall area, in order to improve its business opportunities, particularly with respect to affording proximity to potential customers in the Coral Gables area.17/ Although South Motors searched for real estate in the Kendall area, it ultimately informed Infiniti that it could not locate any real estate that it considered suitable, and it did not relocate its dealership as recommended. South Motors' performance did not improve, falling to less than 50 percent sales effectiveness——last in the state and the region. In July 2007, Infiniti issued a Notice of Default, informing South Motors that it was in breach of the sales performance obligations under its Dealer Agreement, and giving South Motors a 180-day cure period. South Motors' performance still did not improve. In September 2008, over a year after issuing the Notice of Default, Infiniti sent South Motors a Notice of Termination, informing South Motors that Infiniti intended to terminate its relationship with South Motors due to continued unsatisfactory sales performance within its PMA. In response, South Motors filed a lawsuit against Infiniti, alleging that it was in substantial compliance with its Dealer Agreement and that Infiniti had, unilaterally and without notice, changed the Dealer Agreement by expanding its PMA, making it one of the largest in the nation. South Motors alleged, in part, that its sales effectiveness was adversely affected because the sales effectiveness determination took into account geographic areas in which it could not realistically be expected to compete. South Motors acknowledges that its own PMA previously encompassed a significant portion of the area now designated as the proposed Coral Gables PMA, and that it previously asserted that it was unable to effectively compete in that area. Around this time, Infiniti completed another market study to evaluate the brand's performance and representation in southeast Florida, including the area between Warren Henry and South Motors. Based on this study, Infiniti determined that the existing dealer network was not providing adequate representation of the Infiniti brand or its consumers in this area and decided to establish additional Infiniti representation, specifically in the Coral Gables area. In large measure, the lack of adequate representation is due to the distance and congested traffic conditions between Warren Henry and South Motors. Customers in the Coral Gables area must drive 30 to 45 minutes north or south to reach an Infiniti dealership for sales or service. This substantially decreases consumers' convenient access to the Infiniti brand, and, thus, substantially reduces the likelihood that consumers in the Coral Gables area will shop for or purchase an Infiniti vehicle instead of other competing line-makes. Infiniti also determined that the Coral Gables area presents a significant opportunity for additional sales and servicing of Infiniti vehicles. As previously noted, the data show that there are approximately 18,000 competitive luxury registrations per year in the Coral Gables area, making it one of the top three competitive luxury vehicle markets in the U.S. Other competitive luxury brands, such as Audi, Mercedes-Benz, BMW, and Volvo have established dealerships in the Coral Gables area. Having an Infiniti dealership in Coral Gables would afford Infiniti the opportunity to more effectively compete with these brands within this area, as well as attract luxury vehicle customers who may be cross-shopping at these dealerships. Accordingly, Infiniti declared an open point and designated the Coral Gables PMA, where it now proposes to establish M10. The Coral Gables PMA is substantially comprised of census tracts previously assigned to South Motors, and includes several densely-populated areas, including downtown Miami and the City of Coral Gables. As a result of this carve-out from its PMA, South Motors' PMA was substantially reduced in size, which had the immediate effect of doubling South Motors' sales effectiveness from 50 percent to over 100 percent. This increase was due to removing South Motors' contractual responsibility for representing the Infiniti brand within the census tracts in the Coral Gables area, not because South Motors was selling more vehicles. This significant change in South Motors' sales effectiveness shows that the Coral Gables PMA contains a large number of competitive luxury registrations,18/ and it further evidences that South Motors was not adequately covering the Coral Gables market. Due to the dramatic improvement in South Motors' sales effectiveness, Infiniti rescinded its Notice of Termination. Although South Motors no longer is contractually responsible under the Dealer Agreement for selling vehicles within the area that includes the proposed Coral Gables PMA, and even though South Motors' sales effectiveness immediately and substantially increased due to this area having been carved out of its PMA, South Motors takes the position that the Coral Gables area should not be designated as an open point or assigned to any dealer, but instead should remain "unassigned." This means that this area would not be assigned to any dealer for purposes of that dealer being contractually responsible for selling vehicles within the area. The effect of keeping the Coral Gables census tracts unassigned is that no dealership would be contractually motivated or compelled to maximize sales within these areas, but any dealer could, in effect, "harvest the low hanging fruit" by selling some vehicles to customers within this heavily populated area. Infiniti's Vice President for its East Region, Jeffrey Harris, testified that the opportunity for Infiniti to compete for luxury vehicle sales in the Coral Gables area was far too significant for Infiniti to allow this area to remain unassigned. When Infiniti established the Coral Gables open point, Harris recommended that Infiniti offer the open point to South Motors to give it the opportunity to adequately serve the Coral Gables PMA. This would entail South Motors establishing a dealership within the Coral Gables PMA. South Motors confirmed its interest in filling the Coral Gables open point. In December 2010, Infiniti sent a letter to South Motors confirming that South Motors had been conditionally approved as the dealer candidate for the Coral Gables PMA, stating that South Motors was the exclusive appointee for the proposed dealership for 90 days, and informing South Motors that it needed to provide Infiniti a formal proposal and timeline for the proposed dealership. Shortly before its presumptive appointment expired, South Motors notified Infiniti that it had made substantial progress on a proposal for the dealership, and that it had reviewed and evaluated numerous properties in the Coral Gables area. On this basis, Infiniti extended the time period over which South Motors' would remain the presumptive appointee for the Coral Gables dealership. In July 2011, South Motors and Infiniti met to discuss South Motors' progress toward making a formal proposal for the Coral Gables open point. This meeting was held at 4001 Ponce de Leon Boulevard, a former Lincoln-Mercury dealership.19/ South Motors focused on purchasing this site in combination with several nearby properties at a cost of approximately $22.9 million. Infiniti suggested that South Motors may consider reducing this cost by only acquiring the property absolutely necessary to operate the dealership. Over the ensuing months, South Motors repeatedly requested Infiniti's financial assistance for property acquisition, dealership construction, and potential legal costs that may be incurred in defending against protests to the proposed dealership. Infiniti responded that it likely was willing to provide approximately $3 to $5 million in assistance, but that South Motors needed to execute a confidentiality agreement and provide a formal written proposal for the dealership so that Infiniti could evaluate the proposed investment to determine the level of financial support necessary and appropriate based on the specific proposal. South Motors did not sign a form confidentiality agreement. It also did not sign a revised form Infiniti provided that included language stating that South Motors' discussions regarding the proposed Coral Gables dealership could not be disclosed in any litigation, including in any protest to the addition of a dealership in Coral Gables.20/ South Motors did not submit a formal proposal to establish a dealership in the Coral Gables open point because it ultimately determined that such a proposal was not financially feasible for its dealership. Approximately one year after first advising South Motors that it was the preferred dealership candidate for the Coral Gables open point, Infiniti determined that South Motors and Infiniti had reached an impasse. At that point, Infiniti began considering proposals from other interested dealership candidates; nonetheless, South Motors remained the preferred candidate and was free to submit a formal proposal that would be considered along with those submitted by other candidates. South Motors did not submit a formal proposal for the Coral Gables dealership. Infiniti received multiple proposals for the Coral Gables open point and initially selected a professional athlete very well-known in the Coral Gables community to open the dealership. When that candidate was unable to proceed, Infiniti selected Bernardo Moreno as its candidate for the Coral Gables dealership. Moreno has personal and family ties to South Florida. He owns the Collection Auto Group, a group of motor vehicle dealerships located primarily in the northeast and northern U.S. He earned a degree in business administration with a marketing concentration and has worked his entire career in the automobile industry. Over the course of his career, Moreno has acquired and operated automotive and luxury motor vehicle dealerships for a range of line-makes, including Porsche, Mercedes-Benz, Maserati, Aston-Martin, Acura, Buick/GMC, Nissan, Volkswagen, Saab, and Infiniti. Moreno's dealership group has been very profitable and makes hundreds of millions of dollars in sales revenue per year. When Moreno was selected as the dealer for the Coral Gables open point, he and Infiniti were aware of the cost of property in downtown Coral Gables and the potential for a challenge from South Motors. Thus, Moreno requested financial assistance from Infiniti. Moreno and Infiniti entered into a Framework Agreement that contained a confidentiality provision and a schedule for the provision of financial assistance by Infiniti. Pursuant to this schedule, Infiniti committed to provide M10 financial support up to a potential total of $4.4 million, starting with an initial disbursement of $200,000 in September 2014, and periodic payments of up to $120,000 each for the next seven years. These payments were intended to help M10 offset the cost of this proceeding and any appeals, the cost of rent during the pendency of this proceeding and any appeals, and dealership startup costs. The periodic payments to M10 after the dealership opens are not guaranteed, and are contingent on the dealership meeting certain sales, service, and customer satisfaction benchmarks. Under the Framework Agreement, Infiniti also committed to provide M10 a one-time payment of $1 million to assist with the expense of remodeling M10's sales and service intake facility, which will be located at 2701 Le Jeune Road, in the Bacardi Building, an existing office building in Coral Gables. M10 has entered into a long-term lease for its sales and service intake space at the Bacardi Building. M10's sales and service intake facility on Le Jeune Road will be its only contact point with its customers. Due to the high cost and limited availability of property in Coral Gables, this sales and service intake facility will not be a typical suburban-style dealership, but instead will be similar to other luxury vehicle dealerships in Coral Gables such as the Mercedes-Benz dealership next door, and to dealerships in other downtown urban areas, such as in Manhattan, New York. The cost of remodeling the space in the Bacardi Building to suitability for M10's sales and service intake facility will approach that of constructing a new dealership building. M10's sales and service intake facility will consist of the dealership's sales and service reception areas, vehicle showroom, and a range of amenities designed to appeal to luxury vehicle customers. Although the facility will have a service intake and reception area where service customers will drop off and pick up their vehicles, it will not have service bays for the performance of vehicle service onsite. As its offsite service location, M10 has secured a site approximately 0.8 miles away, at 4001 Ponce de Leon Boulevard, Coral Gables, a former Lincoln-Mercury dealership. This is the same location that South Motors considered as its potential dealership site, had it proceeded to fill the Coral Gables open point. However, rather than purchasing this property as South Motors proposed to do when exploring a Coral Gables dealership, M10 has instead entered into a long-term lease of the site. The Ponce de Leon service location will have 12 to 15 service bays for vehicle service and repair. There will be no Infiniti signage at this location and M10's customers will not visit this location. Customers will drop off and pick up their vehicles at the sales and service intake location at the Bacardi Building and porters will drive the vehicles to and from the Ponce de Leon location for service. It is not uncommon for dealerships in urban markets to have offsite service locations; indeed, South Motors itself has an offsite service location where it performs vehicle repair. M10 currently is paying $71,414 per month for the Bacardi Building and $44,000 per month for the Lincoln-Mercury facility. M10 also plans to lease an offsite vehicle storage lot. Statutory Factors Regarding Adequacy of Representation Impact of the Proposed M10 Dealership on Consumers, Public Interest, Existing Dealers, and Infiniti Impact on Consumers and the Public Interest As discussed above, the Miami-Dade Comm/Terr currently is served by two Infiniti dealers, South Motors and Warren Henry, which are located approximately 26 air miles and 28.5 drive miles apart. The area between Warren Henry and South Motors is urban, heavily populated, and characterized by significant traffic congestion. As previously noted, Miami Gardens, North Miami Beach, Miami Beach, Miami, Coral Gables, Hialeah, Cutler Bay, and Kendall are among the communities located in the area between Warren Henry and South Motors. There is no Infiniti dealership located between Warren Henry and South Motors. Also as discussed above, the sales and service intake location for M10 is proposed to be located at 2701 Le Jeune Road, in Coral Gables, and the service facility will be located approximately 0.8 miles away. At this location, M10 would be located approximately 10.6 air miles and 11.2 drive miles from South Motors, and 15.6 air miles and 17.2 drive miles from Warren Henry. Thus, rather than customers in the Miami-Dade Comm/Terr driving an average of over 13 miles in congested traffic conditions to reach an Infiniti dealership, the average drive distance would be reduced to an average of approximately seven miles. This would increase convenient access to Infiniti sales and service within the Comm/Terr, and would particularly benefit service customers, who are less likely to travel significant distances for service or parts as compared to customers seeking to purchase a vehicle. The proposed dealership would have extended service hours and would be open for service seven days a week. Its service department would be open overnight, which would allow customers to drop their vehicle off for service, receive a loaner vehicle, and pick up their fully-serviced vehicle the following morning. South Motors claims that the new dealership would not have sufficient parking or onsite inventory storage, so would not enhance customer convenience. Pursuant to lease agreements, M10 has secured 124 parking spaces onsite at the Bacardi Building for the dealership, and pursuant to lease terms, has an option to negotiate the lease of additional spaces within the Bacardi Building. Additionally, if the dealership is approved, M10 intends to secure an offsite storage lot where it can maintain additional inventory, albeit, it is possible that the lot may be some distance from the dealership. Infiniti and M10 acknowledge that it would be preferable for the dealership to have more onsite parking spaces, but it is common for dealerships in downtown areas to have limited onsite parking with additional offsite inventory storage capacity. The evidence establishes that M10 will take the necessary business and operational steps to secure additional parking so that the dealership can operate smoothly, and has plans in place to do so if the dealership is approved. The evidence does not show that the purported shortage of onsite parking spaces significantly detracts from the substantial convenience to customers of having another Infiniti dealership within the Comm/Terr——particularly at a location that will obviate the need to travel an average of 13 miles under heavily congested conditions for Infiniti sales and service. The new dealership also would benefit the public. M10 anticipates hiring approximately 80 full-time and 15 part-time employees, thus increasing employment in the Coral Gables area. M10 would occupy and substantially renovate two facilities that currently are vacant, increasing local tax revenue and improving the community character in the vicinity of the dealership. South Motors asserts, based on an analysis of M10's pro forma, that given the high cost of real estate in Coral Gables, it is unlikely that M10 will be able to operate profitably,21/ and that adding M10 will result in the two existing profitable dealerships also becoming unprofitable. Thus, South Motors reasons, consumers, the existing dealers, and Infiniti all will be negatively affected by the establishment of M10. South Motors' analysis, which projected a loss of between $25,000 and $168,000 in M10's first year of operation, was based on a projection of sales only in the Miami/Dade Comm Terr, not on projected nationwide sales. Further, it assumes a substantially lower profit per vehicle sale than South Motors currently makes, and assumes an owner's salary of $390,000. However, many operating variables, including owner's salary, can be adjusted to enable M10 to operate profitably its first year and still pay an owner's salary of $220,000. Additionally, M10 would be part of Mr. Moreno's highly profitable dealership group, which earns approximately $15 million per year in profit and makes hundreds of millions of dollars in sales revenue each year. Given Mr. Moreno's history of operating successful, profitable dealerships in highly competitive markets for a number of years, it is reasonable to infer that M10 also will operate as a profitable dealership. Impact on Intrabrand and Interbrand Competition The new dealership would enhance intrabrand competition by providing customers an additional competitive option for Infiniti sales and service within the Miami-Dade Comm/Terr. It also would enhance interbrand competition by adding an Infiniti dealership at a Coral Gables location where many of Infiniti's line-make and model competitors, such as Mercedes-Benz, BMW, Lexus, Audi, and Volvo, currently operate dealerships in close proximity. The new dealership would add Infiniti as a competitive choice in this area and would provide customers the opportunity to cross-shop Infiniti with these competing brands. Impact on Existing Dealers, Including Financial Impact to South Motors, and on Infiniti In determining the impact of the proposed new dealership on existing dealerships in the comm/terr, a key inquiry is the amount of opportunity that exists for the new dealership to capture sales and service without materially affecting the existing Infiniti dealers. As previously noted, the Coral Gables area is one of the top three luxury vehicle markets in the U.S. The 18,000 competitive luxury registrations per year in this area is three times the number of competitive registrations in the average Infiniti PMA in the U.S. One source of opportunity exists in the shortfall in expected Infiniti sales as compared to other competitive line- make sales within the Miami-Dade Comm/Terr. As discussed in greater detail below, in the Miami-Dade Comm/Terr, Infiniti's recent sales performance22/ is at approximately 65 percent of average and in the Coral Gables PMA that number drops to approximately 56 percent of average. If Infiniti's sales performance was raised to average through gaining sales that currently are lost to interbrand competition, this would translate into approximately 1,069 sales of Infiniti vehicles that could be captured by another dealer.23/ Capturing sales lost to Infiniti dealers outside the Miami-Dade Comm/Terr represents another source of business opportunity. These in-sells into the Miami-Dade Comm/Terr currently are made by more distant and less convenient Infiniti dealerships, and likely could be captured with increased marketing, inventory selection, and competition in the Comm/Terr. In 2013, Infiniti dealers outside the Miami-Dade Comm/Terr made 651 sales into the Comm/Terr. When these in- sells are added to the 1,069 sales that would be added through successful interbrand competition if Infiniti's performance in the Miami-Dade Comm/Terr was raised to average, this yields an additional 1,720 sales of Infiniti vehicles available to another Infiniti dealer. To that point, the persuasive evidence shows that had M10 been in business in 2013 and had performed at an average level, it would have made 1,283 sales in the Miami-Dade Comm/Terr alone.24/ This estimate does not take into account sales made outside the Comm/Terr.25/ This evidences that the market in the Miami-Dade Comm/Terr, and particularly in the Coral Gables PMA, can support another Infiniti dealer without significant negative impact on the existing dealers in the Comm/Terr. Proximity is an important factor in a customer's choice of dealership.26/ South Motors derives over 40 percent of its sales from the area included in the Coral Gables PMA. In part, that is due to South Motors' location in southern Miami-Dade County, with the Atlantic Ocean in relatively close proximity to the east and the Everglades in relatively close proximity to the west. The population center in this part of Miami-Dade County is largely north of South Motors, with a particularly large concentration in the Coral Gables area. Historically, approximately half of South Motors' sales and service business has been derived from customers who reside closer to the location of the proposed new dealership than to South Motors. Based on a proximity analysis performed by its expert, Joseph Roesner, South Motors takes the position that its historic proximity advantage for sales and service necessarily dictates that its future performance will suffer with the addition of the new dealership. Essentially, South Motors asserts that if the new dealership is approved, it will lose its proximity advantage for a substantial portion of its customers, and that as a result, it stands to lose between 20 percent and 40 percent of its business.27/ However, this position erroneously assumes that the number of new vehicle sales is a "fixed pie" and fails to take into account the amount of business opportunity available in the market that currently is not being captured. Mr. Roesner acknowledged that South Motors currently is capturing only 50 percent of the sales available in the Coral Gables area.28/ If capture rate is increased, new vehicle sales would increase, indicating that the "pie" of new vehicle sales business is not fixed. South Motors historically has made over $1 million in annual net profit. Roesner estimated, based on his projected 20 to 40 percent decline in business, that South Motors stands to lose between $1 million and $2 million per year in business and may become unprofitable if the new dealership is approved. Roesner arrived at his estimated 20 to 40 percent decline in South Motors' business based on an analysis of other instances in Florida involving the addition of an Infiniti dealership to an existing dealership network since 2009. He assumed that the existing dealership would capture the same percentage of existing sales after the new dealership is added as it did before the new dealer is added. He then compared the amount of sales the existing dealership made to expected sales before and after addition of the new dealership. Pursuant to this methodology, Roesner determined that the new dealership increased Infiniti's sales in the luxury vehicle market but that some of the new dealership's sales came at the expense of the existing dealerships, and that in each case, the addition of a new dealership reduced the existing dealerships' sales between 7.53 percent and 22.3 percent. Applying this methodology to South Motors, he projected a 23.42 percent decline in sales as a result of adding M10. However, South Motors' projection is based on the flawed assumption, discussed above, that existing dealerships maintain the exact same level of sales performance after the addition of a new dealership as before the addition of that dealership. Roesner acknowledged that a dealership's sales effectiveness can change from year to year, and he did not evaluate how the existing dealerships' sales performance had been trending in prior years. The persuasive evidence showed that in each instance where an existing dealership's sales performance declined after a new dealer was added, the existing dealership's performance already was trending downward due to other factors in the market, before the new dealership was added. Thus, it was erroneous to assume that the decrease in existing dealerships' sales performance projected by South Motors was caused solely by the addition of a new dealership. The persuasive evidence shows that the addition of a new dealership causes, at most, a relatively small decline in existing dealerships' sales performance, and that adding an Infiniti dealership increases brand awareness and performance, even in markets where the Infiniti already performs above average. Again, this evidences that new vehicle sales are not a "fixed pie" in terms of amount available in the market. Thus, South Motors' projection that it stands to lose 20 to 40 percent across all aspects of its business is based on flawed assumptions. In fact, South Motors itself projected a potential 23.42 percent loss in new sales based on these flawed assumptions, and it did not persuasively establish that it will suffer a significant impact to its service or wholesale parts business. Losses to used vehicle or customer pay service that South Motors posits it will experience are not statutorily cognizable in this proceeding, so are not properly counted toward South Motors' asserted loss. Thus, South Motors' projection, based on erroneous assumptions, that it stands to lose $1 million to $2 million in business and likely become unprofitable as a result of the establishment of M10, is not reliable or persuasive. South Motors is part of a large, successful vehicle dealership group in south Florida that has a net working capital and net cash worth of over $8 million, sells approximately 20,000 vehicles, generates nearly a billion dollars in gross revenue per year, and earns between $800,000 and $1.5 million in profit per year. South Motors' Executive Vice President, Jonathan Chariff, testified that South Motors is in a very sound and financially stable position. In sum, the persuasive evidence establishes that because there is sufficient business opportunity in the Miami- Dade PMA, establishment of the new Infiniti dealership is not likely to have a significant negative impact on the existing Miami-Dade Infiniti dealers, including South Motors. The persuasive evidence also shows, based on an analysis of all instances in Florida since 2009 in which a new dealership was added to an existing dealer network, that the new dealership is likely to stimulate the market and result in additional sales for the Infiniti line-make, with relatively little to no negative impact to the existing dealers in the Miami-Dade Comm/Terr. 2. Reasonably Expected Market Penetration in the Comm/Terr Market penetration is a measure of the share of the retail motor vehicle market that a particular line-make achieves during a defined period of time in a particular geographic area. Establishing an Appropriate Benchmark To determine if the Infiniti brand is adequately performing with respect to sales in the Miami-Dade Comm/Terr, a standard for measuring the brand's representation within that area must be identified. This entails identifying an appropriate geographic area in which to assess brand performance for purposes of comparison to Infiniti's performance in the Comm/Terr. Here, Infiniti posits that the appropriate geographic area consists of Florida areas that currently are represented by an Infiniti dealer. This geographic area is proposed because when determining whether the Infiniti brand is adequately represented in the Miami-Dade Comm/Terr, the brand's sales performance should be compared to other areas where Infiniti is actually represented by a dealer.29/ The performance benchmark derived from this geographic area is the "Florida Represented Standard," which is the average performance of the Infiniti brand in the PMAs currently being represented by a dealer in Florida, minus the Miami-Dade Comm/Terr.30/ The Florida Represented Standard benchmark is a local standard that more precisely reflects Infiniti's level of brand representation in the Miami-Dade Comm/Terr than do other broader benchmarks, such as average Infiniti brand performance for the eastern U.S. or the entire country.31/ South Motors' expert, Mr. Roesner, examined more than one benchmark for purposes of determining Infiniti sales performance, specifically, the Florida Represented Standard; all of Florida, including unassigned areas, minus the Southeast Florida Metro market (which consists of Miami-Dade and Broward counties and a small portion of Palm Beach County); and the Florida Represented Standard minus the Southeast Florida Metro market. As discussed above, it has been determined that the Miami-Dade Comm/Terr is the appropriate comm/terr for this proceeding. Thus, the benchmark for determining average brand performance must be selected to enable a comparison to the Miami-Dade Comm/Terr. Of the comparison areas proposed in this proceeding, only the Florida Represented Standard meets that requirement. Thus, it is determined that the Florida Represented Standard is the appropriate benchmark in this proceeding for determining Infiniti's brand performance. Segmentation Analysis Once the performance benchmark has been determined, a segmentation analysis is performed to account for any differences in consumer and product preferences between the Miami-Dade Comm/Terr and the comparison area——here, the area comprising the Florida Represented Standard. Infiniti's product lines are broken down into various vehicle types, or segments, on the basis of size, functionality, price point, and "second choice" data. Segmentation analysis evaluates the specific types of vehicles being purchased by consumers in a particular area and accounts for all consumer and product variables in the market, so that no other adjustments to account for demographic characteristics such as ethnicity, income, or education are necessary. Thus, segmentation analysis eliminates the need to speculate regarding consumer preferences across vehicle types based on the range of demographic factors, including ethnicity. Infiniti has identified seven different "segments," or vehicle types, within its brand for purposes of analyzing brand performance. These segments are: Luxury Coupe, Mid Luxury, Near Luxury, Luxury Compact SUV, Luxury Midsize SUV, Luxury Fullsize SUV, and Luxury Large SUV. Infiniti also has identified the specific Infiniti models within each segment, as well as the specific models of other line-makes that compete with the Infiniti models within each segment. The penetration rate in the Miami-Dade Comm/Terr for Infiniti for a particular segment is determined by dividing the number of Infiniti registrations for that segment by the total number of competitive registrations for that segment. The expected penetration rate for a particular segment of the Infiniti brand is determined by comparing the total number of competitive registrations for that segment to the Florida Represented Standard. This expected penetration rate per segment can then be compared to the actual sales of Infiniti vehicles for that segment. Based on the Florida Represented Standard, for the year 2012-2013, the expected penetration rate for Infiniti vehicles across all segments is 8.42 percent. During this period, Infiniti achieved an actual penetration rate of 6.51 percent across all vehicle segments in the Miami-Dade Comm/Terr, showing a shortfall between expected and actual sales of Infiniti vehicles in the Comm/Terr. Registration effectiveness, which compares actual brand penetration to expected brand penetration,32/ is the calculated measure that is used to gauge brand performance. Here, comparing the expected 8.42 percent Infiniti penetration rate to the actual 6.51 percent Infiniti penetration rate yields a registration effectiveness for the Infiniti brand of 77.3 percent for the Miami-Dade Comm/Terr for 2013. Confirmation of the Benchmark as Reasonable Once the benchmark has been selected and adjusted using segmentation analysis, it must be evaluated by determining if it is achievable and has been achieved in the Florida Represented Standard area. Here, the persuasive evidence consistently showed, across a range of represented PMAs in Florida, that with little exception, the dealers are meeting the benchmark of 100 percent registration effectiveness, which is average performance. This confirms that the Florida Represented Standard is a reasonable benchmark to use in evaluating Infiniti's brand sales performance in the Miami-Dade Comm/Terr. Measuring Infiniti's Brand Performance in the Comm/Terr The persuasive evidence shows that in comparison to the Florida Represented Standard benchmark, the Infiniti's sales performance in the Miami-Dade Comm/Terr is below average. Between 2011 and 2013, Infiniti's sales performance in the Miami-Dade Comm/Terr ranged between 77 and 80 percent of average. However, by March 2014, its performance had fallen to approximately 65 percent of average. In 2013, the existing Infiniti dealer network in the Miami-Dade Comm/Terr made 737 fewer vehicle sales than expected and it was projected to make 1,284 fewer vehicle sales than expected through 2014. This shows that customers are purchasing Infiniti vehicles in the Miami-Dade Comm/Terr at significantly lower levels than in the rest of the represented markets in Florida. This indicates that the Infiniti brand is not being adequately represented by the existing dealer network in the Miami-Dade Comm/Terr. This inadequacy is even more pronounced when Infiniti's sales performance is evaluated in the area encompassed within the Coral Gables PMA. Between 2011 and March 2014, Infiniti's sales performance fell from 67.9 percent of average to 56.1 percent of average. In 2013, the existing dealer network made 543 fewer Infiniti sales than expected within the area in the Coral Gables PMA, and it was on pace to make 720 fewer sales than expected in 2014——making it the worst-performing PMA in Florida. In 2011, South Motors accounted for 30.1 percent of the brand's registration effectiveness within the Coral Gables PMA, and other dealers accounted for 37.8 percent. In 2012, those numbers were 31.1 percent and 34.4 percent, respectively; in 2013, those numbers were 25.0 percent and 38.0 percent, respectively; and as of March 2014, those numbers were 27.1 percent and 29.0 percent, respectively. This information shows that the existing Infiniti dealer network is not providing adequate representation or sufficiently cultivating existing sales potential in the area encompassed within the Coral Gables PMA. South Motors' expert, Mr. Roesner, evaluated Infiniti's brand performance within the Southeast Florida Metro area, but did not specifically evaluate Infiniti brand performance within the Miami-Dade Comm/Terr or the Coral Gables PMA. Based on his analysis of Infiniti's sales performance in the Southeast Florida Metro market, Roesner found that the Infiniti brand was performing between approximately 85 percent and 90 percent of average in that area. He described this performance as "a reasonable level. It's not a superior performance, but neither is it inadequate." Because Roesner's analysis was keyed to the Southeast Florida Metro market, it necessarily included Infiniti's performance in Broward County north of Warren Henry. In Broward County, the Infiniti brand is represented by three dealerships located in close proximity to each other, and the brand performs relatively well. By contrast, there are only two Infiniti dealerships in Miami-Dade County, separated by 26 miles of urban development and congested traffic conditions. By including Broward County, Roesner's analysis shows Infiniti performing at a significantly higher level than in the Miami-Dade Comm/Terr or Coral Gables PMA. The inclusion of Broward County in Infiniti's sales performance analysis positively skews the performance numbers, but does not accurately portray the brand's sales performance specifically in the Miami-Dade Comm/Terr, which is the geographic area relevant to this proceeding.33/ Roesner acknowledged that there is little interaction between the Broward County dealerships and customers in the Coral Gables area, with each Broward County dealership making less than nine percent of its nationwide sales within the Coral Gables area. He further acknowledged that this is due, at least in part, to the significant drive distances between those dealerships and the Coral Gables area. Roesner posited that because existing dealers are making some sales into the Coral Gables PMA, it is being "cultivated." However, he acknowledged that this did not necessarily mean that this area was being adequately represented by the existing dealers. He further acknowledged that Infiniti's brand performance in the Coral Gables PMA is worst in the state and that there is opportunity for additional sales within that area. In sum, the persuasive evidence demonstrates that the Infiniti brand is not being adequately represented for new vehicle sales in the Miami-Dade Comm/Terr, and that the brand performs particularly poorly in the Coral Gables PMA. Infiniti's service performance also was analyzed to determine if it is being adequately represented within the Miami-Dade Comm/Terr and in the Coral Gables PMA. First, the number of Infiniti Units in Operation ("UIO") within the Miami- Dade Comm/Terr and Coral Gables PMA was determined. This number is a measure of service opportunity for Infiniti in this geographic area. Infiniti uses a seven-year UIO measurement, which reflects the number of Infiniti vehicles within the most recent seven model years. Once the amount of UIO was determined, this number was then compared to Infiniti repair orders for warranty service, extended service contracts, goodwill repairs, and service campaign repairs.34/ This enabled determination of the "capture rate" or percentage of UIO that were matched to a qualifying repair order. Because Infiniti's initial warranty covers four years, this analysis is not limited to warranty repair and includes all types of repair work for which Infiniti reimburses the dealer to perform. This analysis showed that South Motors is capturing 67.2 percent of the UIO in its PMA. However, its UIO capture in the Miami-Dade Comm/Terr as a whole and in the Coral Gables PMA were substantially lower, at 46.8 percent and 46.7 percent, respectively. The significant difference between Infiniti's service performance within South Motors' PMA compared to the Miami-Dade Comm/Terr as a whole and to the Coral Gables PMA demonstrates that the existing dealer network is not providing adequate representation for service within the Miami-Dade Comm/Terr and the Coral Gables PMA. Factors Affecting Infiniti's Market Penetration in the Comm/Terr The statutory "market penetration" factor requires, in addition to an analysis of how existing dealers are penetrating the market, "consideration of all factors which may affect said penetration, including but not limited to, demographic factors such as age, income, education, size class preference, product popularity, retail lease transactions, or other factors affecting sales to consumers in the community or territory." § 320.642(2)(b)3., Fla. Stat. The factors germane to this proceeding are addressed below. Population and household trends in the Miami-Dade Comm/Terr are indicators of market opportunity. The Miami-Dade Comm/Terr is a very densely populated area that has over three million people and one million households, so presents a substantial market opportunity. With approximately 1.2 million people and growing, the Coral Gables area is a particularly densely populated, heavily congested area within the Miami-Dade Comm/Terr. This means that consumers in this area seeking access to an Infiniti dealership have to work their way through heavy traffic to access a dealer located substantially to the north or south. These population and household numbers are expected to increase in the future, increasing both the demand for vehicles sales and service and the congestion that must be negotiated to obtain access to an Infiniti dealer in the Miami-Dade Comm/Terr. These factors indicate that Infiniti's underperformance in the Miami-Dade Comm/Terr is due to an inadequate number of Infiniti dealers, and that this performance shortfall will become more pronounced in the future under the existing dealer network. Household income and employment are indicators of consumers who are in the market to purchase a vehicle. Employment in the Miami-Dade Comm/Terr has been growing since reaching a low point in 2009, indicating good economic conditions for the vehicle retail business. There are over 380,000 households with an annual income of between $50,000 and $150,000, and an additional 75,000 households having an annual income of over $150,000. These conditions indicate a significant number of households in this area that are in the target range for the Infiniti brand. A statistical regression analysis was performed to determine whether Infiniti brand performance in the Miami-Dade Comm/Terr may be significantly related to the high Hispanic population in the area. This analysis identified several areas in Florida having a high Hispanic population where the brand is performing well, indicating no significant relationship between the percentage of Hispanic population and Infiniti's brand performance. Thus, this factor is not adversely affecting the brand's performance in the Miami-Dade Comm/Terr. The competitive registration patterns in the Miami- Dade Comm/Terr show a significant concentration of consumers who are purchasing vehicles of competitive line-makes and models in Coral Gables, in and around the location of the proposed M10 dealership. In fact, many dealers who sell vehicles that compete with Infiniti have dealerships close to this location. This indicates that dealership convenience and accessibility are important to customers in this area, and that the lack of an Infiniti dealership in this area indicates a lack of convenience and accessibility for customers of the Infiniti brand. This area has experienced steady growth in competitive registrations over the past few years and that trend is anticipated to continue into the future. This shows that the Miami-Dade Comm/Terr and the Coral Gables PMA present a consistent and growing opportunity for Infiniti sales, and that the current shortfall in Infiniti sales is not due to lack of sales opportunity in these areas. The evidence shows that the sales opportunity for Infiniti dealers within the Miami-Dade Comm/Terr is the largest per dealer of any market in Florida, and that even if a third dealer were added in the Coral Gables area, the Miami-Dade Comm/Terr still would have the largest sales opportunity per dealer in the state. This indicates that the Miami-Dade Comm/Terr is too large a market to be adequately served by the two existing Infiniti dealers. The evidence similarly shows that the Miami-Dade Comm/Terr also has the largest service opportunity (in terms of UIO) per dealership of any market in Florida——again, suggesting that the Miami-Dade Comm/Terr is too large a service market for the two existing dealers to adequately serve. Addition of a third dealership in the Miami-Dade Comm/Terr would slightly reduce the UIO per dealership, but the Comm/Terr still would constitute the third largest service market in Florida. The reduction in UIO per dealership is related to the number of units (vehicles) in operation in the area and Infiniti's sales performance in the area. Because the Infiniti brand's sales performance has fallen below the expected level in the Miami-Dade Comm/Terr, there are fewer units in operation than if the brand performed at expected levels for sales performance. With higher sales performance, the number of units in operation in this market——and, thus, service opportunity——would increase due to the additional vehicle sales being made into the market. Thus, as the Infiniti brand experiences better sales performance in the Miami-Dade Comm/Terr, service opportunity will increase. The evidence shows a significant existing level of service opportunity in the Miami-Dade Comm/Terr that is anticipated to increase with increased sales performance. Infiniti dealers are able to capture a larger percentage of sales closer to their dealership and are less effective at capturing sales to customers further away from the dealership. With respect to the existing Infiniti dealer network, South Motors currently captures 72.2 percent of the expected sales within four miles of its dealership. However, this capture percentage significantly decreases at greater distances; South Motors captures only an estimated 45.8 percent of expected sales at 10 to 12 miles from its dealership. Warren Henry exhibits a similar pattern, capturing 73.3 percent of expected sales within four miles of its dealership, but the drop-off is more dramatic with distance. Warren Henry captures only 28.3 percent of expected sales at 10 to 12 miles from its dealership and only 17.9 percent at 12 to 16 miles from its dealership. The proposed M10 dealership in Coral Gables is more than 10 miles from South Motors and more than 15 miles from Warren Henry. These data show that South Motors and Warren Henry both are too far from the Coral Gables area for either of them to adequately represent the area for vehicle sales. Customer convenience is gauged by determining the average drive distance consumers in the Coral Gables PMA must travel to reach an Infiniti dealership. With the 26-mile gap between the existing dealers in Miami-Dade County, customers in the Coral Gables PMA must drive an average of 13.2 miles, through congested conditions, to reach the nearest Infiniti dealer. This distance is significantly further than customers in the Coral Gables area must travel to reach other dealerships that sell competitive line-makes and models, including Mercedes- Benz, Audi, Cadillac, BMW, Lexis, Acura, and others. The lack of convenient sales and service access places Infiniti at a significant competitive disadvantage relative to other brands, and is a key reason for Infiniti's underperformance as a brand, both in the Coral Gables PMA and in the rest of the Miami-Dade Comm/Terr. An analysis of the number of competitors per dealer further evidences that Infiniti is inadequately represented, in terms of number of dealers, within the Miami-Dade Comm/Terr. There are 51 competitive motor vehicle franchises in the Miami- Dade Comm/Terr, two of which are the existing Infiniti dealerships, South Motors and Warren Henry. Thus, the Infiniti brand has 3.9 percent of the "shelf space," or share, of the competitive franchises within the Miami-Dade Comm/Terr. By contrast, the Florida Represented Standard enjoys 4.7 percent of the competitive "shelf space." This shows that Infiniti is underrepresented in the Miami-Dade Comm/Terr and would need to add 2.4 Infiniti dealers to have the same competitive "shelf space" as the other Infiniti franchises comprising the Florida Represented Standard. This evidences that the Infiniti brand is performing poorly in the Miami-Dade Comm/Terr due to having too few dealerships in the Comm/Terr. These factors support the conclusion that the causes of Infiniti's inadequate sales and service performance in the Miami-Dade Comm/Terr, and particularly in the Coral Gables PMA, are the lack of convenient access to the Infiniti brand relative to its competitors and underrepresentation by having too few Infiniti dealers. 3. Size and Permanency of Reasonable Investments and Obligations Incurred by Existing Dealers to Perform Under Dealer Agreements South Motors has invested over $25 million in its dealership operations. This investment includes significant investments in purchasing and leasing property, as well as investing in the facilities from which South Motors operates. South Motors also has committed to upgrade its sales facility to IREDI standards, which will entail a substantial investment. As previously noted, Infiniti has committed to provide South Motors $550,000 to upgrade to IREDI standards. 4. Actions by Licensee Denying Existing Dealers Opportunity for Reasonable Growth or Market Expansion The evidence does not establish that Infiniti has taken any actions to deny existing dealers the opportunity for reasonable growth or market expansion. South Motors asserts that Infiniti's provision of $4.4 million of financial support to M10 gives it an unfair competitive advantage, which effectively denies it and other existing dealers the opportunity for reasonable growth or market expansion. However, South Motors did not provide any specific, persuasive evidence substantiating this assertion. The evidence shows that the financial assistance Infiniti has proposed to provide M10 is to help cover the costs of this proceeding and any subsequent appeals, the rent costs during the pendency of this proceeding and appeals, and start-up costs. This assistance is intended to help M10 break even, not gain any competitive advantage over the existing dealers. As it is, Infiniti is providing South Motors $550,000 toward renovating its existing dealership to meet IREDI standards, with the aim of helping make it a more competitive dealership in the luxury vehicle market. Further, the persuasive evidence establishes that had South Motors, as the initial preferred candidate, provided a formal proposal and signed a confidentiality agreement regarding a Coral Gables dealership, Infiniti likely was prepared to provide South Motors between $3 million and $5 million to open an Infiniti dealership in the Coral Gables open point. 5. Attempts by Licensee to Coerce Existing Dealers 160. There is no evidence that Infiniti attempted to coerce South Motors, Warren Henry, or any other existing Infiniti dealers to consent to the proposed Coral Gables dealership. 6. Distance, Travel Time, Traffic Patterns, and Accessibility between Existing Infiniti Dealers and Location of the Proposed Dealership As previously discussed, the South Motors and Warren Henry dealerships are approximately 26 air miles and 28.5 drive miles apart. M10 will be located in downtown Coral Gables, approximately 10.6 air miles and 11.2 drive miles from South Motors, and approximately 15.6 air miles and 17.3 drive miles from Warren Henry. As previously discussed, several populous communities in Miami-Dade County are located in the stretch between South Motors and Warren Henry. Traffic conditions between South Motors and Warren Henry are heavily congested, and customers in these communities, including in Coral Gables, who wish to purchase a vehicle or have a vehicle serviced at either existing Infiniti dealership must negotiate very congested traffic conditions to get to the dealership——a trip that may take between 30 and 45 minutes of drive time, depending on traffic conditions. A prime reason Infiniti is seeking approval to add M10 in Coral Gables is to increase convenience to luxury vehicle customers in this area which, as previously noted, is one of the top three luxury vehicle markets in the country. The evidence shows that convenience is a key consideration for luxury vehicle customers when choosing a dealership for purchase or servicing a vehicle. Due to M10's location proximate to a large luxury vehicle customer base, Infiniti anticipates that its sales and service performance in the Miami-Dade Comm/Terr, and particularly in the Coral Gables area, will improve. The evidence shows that the establishment of M10 will reduce the average drive distance to the nearest Infiniti dealer for customers in the Miami-Dade Comm/Terr. It is thus reasonable to infer that adding the M10 dealership in Coral Gables also will reduce the drive time for Infiniti customers to reach the nearest Infiniti dealership. 7. Likelihood of Benefits to Consumers due to Establishment of New Dealership that Cannot be Obtained by other Geographic or Demographic Changes or Expected Changes within the Comm/Terr 166. As previously discussed, the evidence shows that the establishment of M10 likely will benefit consumers in the Miami- Dade Comm/Terr due to increased convenience in accessing an Infiniti dealership for sales and service and increased intrabrand and interbrand competition. Also as discussed, M10 is anticipated to be profitable and is not anticipated to significantly negatively affect South Motors. Thus, customers in the Miami-Dade Comm/Terr will benefit from M10's establishment. 8. Whether the Protesting Dealer is in Substantial Compliance with its Dealer Agreement South Motors currently is in compliance with its Dealer Agreement. South Motors' dealership facility is older and outdated in some respects and does not comply with Infiniti's IREDI standards. However, South Motors has committed to renovating its facility to comply with IREDI standards. Historically, South Motors' performance was inadequate, but it has performed well since 2009, when the area now included in the Coral Gables open point was removed from its PMA. South Motors has won Infiniti's Award of Excellence. Infiniti is not claiming that South Motors is a bad dealer, only that, for a variety of reasons addressed herein, additional representation of Infiniti in the Miami-Dade Comm/Terr, and particularly in the Coral Gables area, is warranted. 9. Whether there is Adequate Interbrand or Intrabrand Competition in the Comm/Terr and Adequately Convenient Customer Care, Including Sales and Service Facilities Adequacy As previously addressed, Infiniti's below-average brand performance in the Miami-Dade Comm/Terr indicates that there currently is not adequate intrabrand or interbrand competition for the Infiniti brand, largely due to underrepresentation by having only two dealerships in a large, heavily populated, congested area. South Motors engages in an aggressive advertising program and performs well for sales and service within its own PMA. However, the evidence shows that due to an inadequate number of Infiniti dealers in the Miami-Dade Comm/Terr, the Infiniti brand does not compete particularly well against other luxury vehicle brands in the Comm/Terr. Also as previously discussed, the evidence shows that another substantial reason for Infiniti's brand underperformance in the Miami-Dade Comm/Terr is that for a large number of customers in the Comm/Terr, including those in the Coral Gables area, convenient access to Infiniti sales and service facilities is lacking. The bulk of customers in the Miami-Dade Comm/Terr seeking an Infiniti sales or service dealership must travel, in congested conditions, a substantial distance north, almost to Broward County, or a substantial distance south, below Kendall, to reach a dealership.35/ At the same time, Infiniti's competitors have dealerships located in more convenient areas of the Comm/Terr, including in Coral Gables, which helps them outcompete Infiniti for luxury vehicle sales. The evidence shows that establishing M10 at its proposed location will enhance interbrand and intrabrand competition, and also will enhance customer convenience with respect to drive distance and drive time to an Infiniti sales and service facility. 10. Whether Establishment of Proposed Dealership is Warranted and Justified Based on Economic and Marketing Conditions Pertinent to Dealers Competing in the Comm/Terr As previously discussed, in the Miami-Dade Comm/Terr, the Infiniti line-make historically has performed below average, and its performance is declining. In March 2014, Infiniti's sales performance in the Miami-Dade Comm/Terr was approximately 65 percent of average based on the Florida Represented Standard benchmark. In Coral Gables, Infiniti's performance fared worse, with a sales performance of 56.1 percent of benchmark average. As previously noted, the data show that there are approximately 18,000 competitive luxury vehicle registrations per year in the Coral Gables area alone, making it the third largest luxury car market in the country. Employment in the Miami-Dade Comm/Terr has steadily grown over the past five to six years, and the economic conditions are favorable for the motor vehicle business. The evidence shows that there is a large luxury vehicle customer base living in the Miami-Dade Comm/Terr, particularly near the location of the proposed M10 dealership. To that point, several of Infiniti's luxury vehicle competitors have dealerships in this area. As discussed in detail above, the evidence shows that the Infiniti brand, with only two existing dealerships in the Miami-Dade Comm/Terr, is underrepresented in the Comm/Terr. The Miami-Dade Comm/Terr currently has the largest sales opportunity per dealer of any market in Florida and if a third dealer were added in Coral Gables, the Comm/Terr still would have the largest sales opportunity per dealer in the state. Also as previously discussed, the evidence shows that establishment of M10 likely will not have a significant negative effect on the existing Infiniti dealerships in the Miami-Dade Comm/Terr. These economic and marketing conditions in the Miami- Dade Comm/Terr support the establishment of M10. 11. Volume of Registrations and Service Business Transacted by Existing Dealers in the Comm/Terr As discussed above, the evidence shows that since 2011, Infiniti's sales performance in the Miami-Dade Comm/Terr has been significantly below the Florida Represented Standard benchmark average, and is declining. With only two Infiniti dealerships, the Miami-Dade Comm/Terr currently presents the greatest sales opportunity per dealer among all Florida markets, and that would continue to be the case with the addition of M10. The Miami-Dade Comm/Terr also currently has the largest number of Infiniti units in operation, so presents the greatest service opportunity in the state. If M10 were added, the Miami-Dade Comm/Terr no longer would have the largest units in ownership in the state, but it would be the third largest service market in Florida. As previously discussed, the slight decrease in service opportunity per dealership is due to the current sales underperformance in the Miami-Dade Comm/Terr. As Infiniti sales performance increases in the future with the addition of another dealership, the service opportunity available to all dealers in the Miami-Dade Comm/Terr also will increase. In sum, Infiniti's current underperformance in sales and service in the Miami-Dade Comm/Terr, with projected increases in both with the addition of another dealership, supports the establishment of M10. Findings of Ultimate Fact Regarding Adequate Representation in the Comm/Terr and in the Coral Gables PMA The evidence establishes that the existing Infiniti dealer network in the Miami-Dade Comm/Terr is making substantially fewer new Infiniti sales than expected compared to other Infiniti dealers in Florida based on the Florida Represented Standard, and also is capturing a significantly smaller percentage of available service opportunity in the Comm/Terr as a whole compared to the South Motors PMA, which is a dealer-represented PMA. Infiniti's performance has declined over time, and Infiniti is losing a significant amount of business to competitors. Accordingly, the existing Infiniti dealers are not achieving the volume of sales or service business reasonably expected in the Miami-Dade Comm/Terr. The evidence shows that Infiniti's inadequate sales and service performance in the Miami-Dade Comm/Terr is due to underrepresentation by an existing dealer network comprised of only two dealers 26 miles apart in a densely populated, heavily congested urban area. Infiniti's inadequate brand performance is not due to deficient sales effectiveness or service level by the existing dealers within their own PMAs. The Infiniti brand is performing at even lower levels in the Coral Gables PMA. In that area, the existing dealer network is making a small percentage of the expected new vehicle sales available and a very small percentage of the warranty service business captured in other represented markets in Florida. Coral Gables is located at the approximate midpoint of a 26-mile gap in Infiniti representation in the Miami-Dade Comm/Terr that includes downtown Miami and Coral Gables. With its current dealer network, Infiniti has the worst customer convenience of any competitive luxury vehicle brand in the Coral Gables PMA. Customers currently must drive an average of 13.2 miles to reach the nearest Infiniti dealership. The evidence indicates that the population, number of households, employment levels, number of competitive registrations, and units in operation in the Miami-Dade Comm/Terr, and particularly in Coral Gables, are likely to grow in the coming years, so that Infiniti's brand underperformance will not improve, but will continue to decline. The establishment of M10 in Coral Gables will significantly reduce the average drive distance and drive time to an Infiniti dealership for sales and service customers, thus improving customer convenience to the Infiniti brand. The proposed M10 dealership will increase the awareness of Infiniti's brand in the luxury vehicle market and will promote intrabrand and interbrand competition. The proposed new dealership will benefit the public interest by increasing employment in the community, contributing to positive community character, and generating tax revenue. The persuasive evidence shows that M10 is not likely to have a material negative impact on South Motors. There is sufficient sales and service opportunity in the Miami-Dade Comm/Terr and in the Coral Gables PMA to support the addition of the M10 dealership without materially affecting the existing dealers, including South Motors. Further, the evidence shows that addition of M10 will increase Infiniti's brand awareness and may generate additional business that may inure to the benefit of all Infiniti dealers in the Miami-Dade Comm/Terr. The persuasive evidence establishes that any potential impact on South Motors, which is likely to be minimal at most, will be outweighed by the significant benefits to consumers, the public, and the Infiniti brand from the establishment of M10. In sum, Infiniti has met its burden to demonstrate, by the preponderance of the competent substantial evidence, that the existing Infiniti dealers in the Miami-Dade Comm/Terr are not providing adequate representation of the Infiniti line-make in the Comm/Terr, pursuant to the factors in section 320.642(2)(b). Accordingly, Infiniti has shown that the establishment of M10 as an Infiniti dealership should be approved. Relocation of Warren Henry South Motors asserts that M10 cannot be established due to the potential relocation of Warren Henry Infiniti. Specifically, South Motors asserts that Infiniti cannot be permitted to establish a dealership in Coral Gables until Warren Henry's potential relocation has occurred and its impact on the adequacy of representation in the Miami-Dade Comm/Terr is evaluated. Over the years, Warren Henry has sought to relocate its dealership several times; however, none of these efforts has come to fruition. In 2012, Infiniti approved the relocation of Warren Henry to a new location at 14995 Biscayne Boulevard in Miami, and proposed relocation was noticed in the Florida Administrative Register in April 2013. The proposed relocation site is approximately 4.8 miles southeast of its present dealership location, 22 miles north of South Motors, and 12 miles from M10's proposed location. The proposed relocation site is within Warren Henry's existing PMA. As with Warren Henry's previous relocation efforts, problems have developed that have hindered its ability to secure the proposed relocation site. As a result, it missed all of the deadlines agreed to with Infiniti for relocating to the new site. As of the final hearing, Warren Henry still had not secured a lease on the site of its relocated dealership.36/ It is uncertain whether Warren Henry Infiniti will relocate, and if it does, when that relocation will occur. Moreover, even if Warren Henry were to eventually relocate to the proposed site, it would still be anticipated to capture only 18 percent of expected Infiniti sales in the Coral Gables area. This shows that the relocation would not address the inconvenience in accessing the Infiniti brand for customers in that area. In any event, the evidence shows that as the population in the Miami-Dade Comm/Terr increases, it will become increasingly inconvenient for customers to reach an Infiniti dealership in the existing network. The evidence shows that adding the M10 dealership will make access to an Infiniti dealer significantly more convenient for customers in the Miami-Dade Comm/Terr, and particularly in the Coral Gables area. In sum, the addition of M10 will result in benefits to consumers that would not otherwise be obtained by other geographic or demographic changes or expected changes in the Miami-Dade Comm/Terr. Identifiable Plot The evidence establishes that the Infiniti brand significantly underperforms for both sales and service in the Coral Gables PMA. As previously discussed, the Infiniti brand has been performing poorly in the Coral Gables area for several years, and that performance is in decline. By early 2014, Infiniti's brand performance had fallen to 56.1 percent, with continued decline projected. This is markedly lower than Infiniti's subpar sales performance, at 65 percent of benchmark average, in the Miami-Dade Comm/Terr as a whole. The Coral Gables PMA is the worst-performing PMA for new vehicle sales in the state. Infiniti's service performance in the Coral Gables PMA, at 46.7 percent of benchmark average, also is poor, although not markedly poorer than in the Miami-Dade Comm/Terr as a whole. South Motors currently performs well within its own PMA, but captures only 50 percent of luxury vehicle sales within the Coral Gables area. These data support the determination that Coral Gables is a discrete "identifiable plot" in which Infiniti sales and service are performing more poorly than in the Miami-Dade Comm/Terr as a whole. M10's Service Location As previously noted, on April 4, 2014, DHSMV published two notices of publication for a new point, providing notice that Infiniti intended to allow the establishment of M10. The 14-2070 Notice stated in pertinent part: Pursuant to Section 320.642, Florida Statutes, notice is given that Infiniti... intends to allow the establishment of M10 Motors...as a dealership for the sale and service of Infiniti vehicles (line-make INFI) at 2701 Le Jeune Road, Coral Gables (Miami-Dade County), Florida 33134, on or after June 1, 2014. The 14-2069 Notice stated in pertinent part: Pursuant to Section 320.642, Florida Statutes, notice is given that Infiniti... intends to allow the establishment of M10 Motors...as an Infiniti dealership with additional service facilities (line-make INFI) at 4001 Ponce de Leon Boulevard, Coral Gables (Miami-Dade County), Florida 33146 ("Ponce de Leon"). This service location on Ponce de Leon Boulevard will not be established independent of the sale and service facility located at 2701 Le Jeune Road, Coral Gables, FL, but shall be established only in conjunction with and subject to the approval of the sale and service facility, which is being noticed simultaneously herewith. Further, Infiniti asserts the exemption for this additional service facility at Ponce de Leon Boulevard as provided in Section 32[0].642(6)(b), Florida Statutes, on or after June 1, 2014. Id. (emphasis added). The publication of two separate notices by DHSMV for the establishment of M10 was driven by correspondence submitted to the agency by Infiniti's Analyst for Dealer Agreements, who sent two letters giving notice of Infiniti's intent to establish M10. The language quoted above was taken directly from the letters submitted by Infiniti's analyst. Although the correspondence submitted to DHSMV, and, consequently, the notice published for Case No. 14-2069, refers to section 320.642(6), regarding "service-only" dealerships, the notice also contains specific language, quoted above, that makes abundantly clear that the service location on Ponce de Leon Boulevard is not a separate stand-alone dealership, but instead is a remote service performance location that is an integral part of a single M10 dealership location having a sales and service location on Le Jeune Road. Further, the evidence presented at the final hearing made clear that the Ponce de Leon service location was just that——a remote location at which all of the service for M10 would be performed. The evidence did not in any manner portray the Ponce de Leon facility as a stand-alone dealership. Accordingly, it is determined that this proceeding concerns the approval of one M10 Infiniti dealership, with its sales and service intake facility located at 2701 Le Jeune Road and its service performance location at 4001 Ponce de Leon Boulevard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Highway Safety and Motor Vehicles enter a final order granting the application of M10 Motors, Inc., d/b/a Infiniti of Coral Gables, Inc., as a dealer for the sale and service of Infiniti line-make vehicles, with a sales and service location at 2701 Le Jeune Road, Coral Gables, Florida 33134, and a service location at 4001 Ponce de Leon Boulevard, Coral Gables, Florida 33146. DONE AND ENTERED this 17th day of July, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 2015.
The Issue The issue in the case is whether an application for a new point franchise motor vehicle dealership filed by El Sol Trading, Inc., and Finish Line Scooters, LLC (Petitioners), should be approved.
Findings Of Fact There was no evidence presented at the hearing to establish that the Respondent has a franchise agreement to sell or service CHUA motor vehicles, the line-make to be sold by Finish Line Scooters, LLC. There was no evidence presented at the hearing that the Respondent's dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new point franchise motor vehicle dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the protest filed in this case by Scooter Elite, LLC, and granting the Petitioners' request to establish a new point franchise motor vehicle dealership for the sale of CHUA motorcycles. DONE AND ENTERED this 9th day of March, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 9th day of March, 2010. COPIES FURNISHED: Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Gloria Ma El Sol Trading, Inc., d/b/a Motobravo, Inc. 19877 Quiroz Court City of Industry, California 91789 Kirit Kana Scooter Elite, LLC 7204 Central Avenue St. Petersburg, Florida 33707 John V. Leonard Finish Line Scooters, LLC 6600 Gulf Boulevard St. Pete Beach, Florida 33706 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue in the case is whether an application for a new point franchise motor vehicle dealership filed by El Sol Trading, Inc., and Fishers Auction Services, Inc., d/b/a Fisher Auto Equipment Sales (Petitioners), should be approved.
Findings Of Fact There was no evidence presented at the hearing to establish that Respondent has a franchise agreement to sell or service SHEN motor vehicles, the line-make to be sold by Cycles and More, Inc. There was no evidence presented at the hearing that Respondent's dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new point franchise motor vehicle dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the protest filed in this case by Cycles and More, Inc., and granting Petitioners' request to establish a new point franchise motor vehicle dealership for the sale of SHEN motorcycles. DONE AND ENTERED this 7th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2010. COPIES FURNISHED: Gloria Ma El Sol Trading, Inc., d/b/a Motobravo, Inc. 19877 Quiroz Court City of Industry, California 91789 Raymond L. Fisher Fishers Auction Services, Inc., d/b/a Fisher Auto Equipment Sales 119 Dixwood Avenue Edgewood, Florida 32132 Jeanne Ciriello Cycles & More, Inc. 5797 South Ridgewood Avenue Port Orange, Florida 32127 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Respondent committed the acts alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent operated a motor vehicle repair shop in Melbourne known as A-New-Carb-O- Tronics. The shop has been registered with the Department since 2004 under registration number MV54037. In December 2005, Janet Shea started having problems with the back hatch of her 2001 Pontiac Aztek. The problems were attributed to the body control module (BCM), which is an electronic device that controls the vehicle's lights, door locks, and window motors. Ms. Shea consulted Respondent about the problems she was having with the Aztek because he had previously done repair work on another one of her vehicles. Respondent told Ms. Shea that he could make the necessary repairs to the BCM, and he picked up the vehicle from Ms. Shea's home to perform the repairs. On January 27, 2006, Ms. Shea paid Respondent $900 for the repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her by Respondent, so she took it back to Respondent for repairs. On February 14, 2006, Ms. Shea paid Respondent an additional $1,200 for repairs that he claimed to have done to the BCM. Ms. Shea continued to have the same problems with the back hatch after the vehicle was returned to her the second time, so she again took it back to Respondent for repairs. On February 18, 2006, while the vehicle was in Respondent's possession, it was involved in an accident that damaged the fuel pump. Respondent charged Ms. Shea $390 to repair the fuel pump. Ms. Shea continued to have the same problems with the back hatch of the vehicle after Respondent returned it to her the third time at the end of April or beginning of May 2006. At that point, Ms. Shea decided to sell the Aztek, but Respondent convinced her to let him take the car again for another evaluation. Respondent told Ms. Shea that the BCM that he installed must have been defective and that he would replace it under his warranty and that it would cost her nothing. On August 2, 2006, after Respondent failed to return the vehicle and refused to return her calls, Ms. Shea filed a stolen vehicle report with the Melbourne Police Department. During the course of the police investigation, Respondent produced two written invoices for repairs that he purportedly performed with Ms. Shea's authority, including charges for repairs to a 1992 Chrysler LeBaron owned by Ms. Shea's friend, Ron Shultz. Ms. Shea was never given these invoices by Respondent. The first invoice, dated July 13, 2006, was for $1,657. It included $343 of charges for repairs to Mr. Shultz's LeBaron. The remainder of the invoice was for repairs that Respondent claimed to have performed on Ms. Shea's Aztek, including replacement of the BCM. The second invoice, also dated July 13, 2006, detailed the $343 of repairs that Respondent purportedly made to Mr. Shultz's LeBaron. Ms. Shea did not authorize the repairs to Mr. Shultz's vehicle, nor did she authorize the charges for that vehicle to be included on her invoice. The handwritten notations on the invoices, which appear to show that Ms. Shea consented to the repairs, were not written by Ms. Shea, but rather were written by Respondent without Ms. Shea's authority. Ms. Shea did not pay these invoices. Respondent placed a mechanic's lien on Ms. Shea's vehicle for the $1,657 of repairs that he claimed to have performed, but for which Ms. Shea failed to pay. On December 4, 2006, the Circuit Court for Brevard County entered an Order finding the lien to be "wrongful" and declaring it "null and void." On or about December 11, 2006, Ms. Shea recovered her vehicle from Respondent with the assistance of the Melbourne Police Department. Respondent had abandoned the vehicle behind the warehouses near his shop. The vehicle was not in a drivable condition when it was recovered. Respondent had removed belts and other parts that he claimed to have installed on the vehicle. 23. On December 11, 2006, Ms. Shea's vehicle was towed to Lane Pontiac-Buick-GMC (Lane) for an estimate of the repairs needed to make it drivable. The estimate prepared by Lane identified almost $4,400 of necessary repairs, including a new BCM. The estimated charges related to the BCM were approximately $400--$252.46 for parts and $148.42 for labor--which is far less than the $2,100 that Ms. Shea paid Respondent for the repair work that he claimed to have done on the BCM. Ms. Shea filed a complaint with the Department in August 2006 concerning her dealings with Respondent. The complaint was investigated by Garrett Craig Moon, who has approximately eight years of experience investigating motor vehicle repair shops for the Department. On September 21, 2006, Mr. Moon conducted an onsite visit to Respondent's shop. The visit was conducted after 8:00 p.m., because that was during the time Respondent regularly conducted his motor vehicle repair business. During the onsite visit, Mr. Moon requested that Respondent provide the documents supporting any repairs that he made to Ms. Shea's vehicle, including documents showing her authorization for the repairs and receipts for the parts used to complete the repairs. Respondent told Mr. Moon that he did not have the documents at the shop on that date, but he agreed to produce them by fax. Respondent subsequently sent a letter to Mr. Moon by fax, but he did not produce any of the requested records. He told Mr. Moon on December 4, 2006, that he refused to produce any records. Respondent had not produced the motor vehicle repair records for inspection by the Department as requested by Mr. Moon as of the date of the final hearing. On seven separate occasions, Ms. Shea paid Respondent for motor vehicle repairs where the cost of the repair work exceeded $100. Those payments included the $900 and $1,200 payments for repairs to the BCM and the $390 payment for the fuel pump, as well as payments for other repairs. The only invoices that Respondent prepared for the work that he allegedly performed for Ms. Shea were those described above dated July 13, 2006. Respondent did not provide written estimates to Ms. Shea for any of the repair work that he allegedly performed, and at no time did Ms. Shea waive the preparation of a written estimate. The invoices described above did not include odometer readings for Ms. Shea's Aztek or Mr. Shultz's LeBaron, a statement indicating whether anything was guaranteed in connection with the repair work, or the registration number for Respondent's motor vehicle repair shop. Respondent did not appear at the final hearing despite having been given due notice of the date, time, and location of the hearing. Respondent operated a motor vehicle repair shop under registration number MV10590 from 1993 to 2001. Respondent has no disciplinary history with the Department. The Department's records identify only one other consumer complaint against Respondent. Mr. Moon's report states that the other complaint was in 1996 and that it was mediated by a Department investigator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order that: Finds Respondent guilty of violating Sections 559.905(1), 559.911(1), (5), and (6), 559.915(2), and 559.920(2) and (3), Florida Statutes, as alleged in the Administrative Complaint; Imposes an administrative fine of $12,000; and Revokes Respondent's motor vehicle repair shop registration. DONE AND ENTERED this 19th day of May, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of May, 2008.
The Issue Whether the application of Snyder Computer Systems, Inc., d/b/a Wildfire Motors and PC Scooter and Cycle, L.L.C., to establish an additional franchised dealership for the sale of Zhejiang Summit Huawin Motorcycle Co. Ltd. (POPC) motorcycles to be located at 3401 East Business Highway 98, Panama City, Bay County, Florida 32401, should be granted.
Findings Of Fact Respondent is a licensed motor vehicle dealer in Florida and an existing POPC dealer located at 12202 Hutchison Boulevard, Suite 72, Panama City Beach, Florida 32407. There was no evidence which demonstrated Petitioners’ market share in the motorcycle market. There was no evidence presented analyzing the motorcycle market in the Panama City area. Likewise, there was no evidence presented regarding anticipated growth in the market area. This type of evidence is generally presented by the distributor or manufacturer of the product. As indicated, Petitioners did not appear at the hearing. Given this lack of evidence, the market share for Petitioners’ motorcycles cannot be established. Mr. Wooten, Respondent’s CEO, established that Petitioners’ proposed location is within 25 miles of Respondent’s current location. Respondent has the ability to adequately serve the needs of the population of Bay County, including Panama City and Panama City Beach through its sales and service of the POPC motorcycles. In the current economy, the entry of Petitioners into the POPC marketplace would have a significant negative financial impact on Respondent’s ability to maintain its sales, service, and customer base. Respondent has expended significant sums on advertising, both in print and online, and could not afford to continue to advertise the POPC line if Petitioners’ application were approved. Respondent already works seven days a week to maintain his market share, and would suffer significant financial losses if Petitioners’ application were approved. Respondent provides low prices for the products it sells and would be forced out of business if Petitioners’ application were approved. Petitioners seek to sell the identical motorcycles sold by Respondent, and the Bay County market is not sufficiently large to support a new entrant. If Petitioners’ application is approved, Respondent will be forced to close its business in Panama City Beach. Respondent is in good standing with the distributors of the products it sells. Respondent’s license with the State of Florida is active and in good standing. There are no barriers to access for customers seeking to purchase the products offered by Respondent. Respondent’s location is centrally located for customers in Bay County, including Panama City and Panama City Beach.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the establishment of Petitioners’ dealership at 3401 East Business Highway 98, Panama City, Florida. DONE AND ENTERED this 6th day of July, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 6th day of July, 2009. COPIES FURNISHED: Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Donald Watts PC Scooter & Cycle, LLC 1903 Brown Avenue Panama City, Florida 32405 Dan Vogel Snyder Computer Systems, Inc., d/b/a Wildfire Motors 11 Technology Way Steubenville, Ohio 43952 Barry Wayne Wooten Moto Import Distributors, LLC 12202 Hutchison Boulevard, Suite 72 Panama City Beach, Florida 32407 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
