The Issue This order addresses Petitioner's motion for a recommended order of dismissal. The motion argues that the Department of Highway Safety and Motor Vehicles (Department) is without jurisdiction to consider the verified complaint as the proposal submitted by the Respondents does not comply with Section 320.643, Florida Statutes.
Findings Of Fact Respondent, Rick Starr Lincoln-Mercury, Inc. (RSLM), is a Florida corporation conducting business at 5400 South U.S. Highway 1, Fort Pierce, Florida. Rick Starr is the sole owner of RSLM. Rick Starr is the sole officer and director for RSLM. Rick Starr is the sole owner of Rick Starr Nissan which, at all times material to this issue, is located at 5400 South U.S. Highway 1, Fort Pierce, Florida. Petitioner entered into a dealer agreement with RSLM doing business as Rick Starr Nissan on March 28, 1990. That agreement was later superseded by an agreement between the parties on September 24, 1990. The dealer agreement described above was the subject matter of an administrative hearing conducted by Hearing Officer Rigot. The central issue of that case, DOAH case no. 92-5187, was whether the franchise agreement (used interchangeably herein with "dealer agreement") could be terminated in accordance with Section 320.641, Florida Statutes. Pertinent to this case is the following finding of fact entered by Hearing Officer Rigot: 59. Starr's failure to meet the March 30, 1992, deadline extended to May 1, 1992, by which (sic) to have an exclusive Nissan facility operational constitutes a material and substantial breach of Starr's Term Agreement since Starr's promise to construct or acquire an exclusive facility for Nissan was the basis upon which Nissan entered into the Term Agreement with Starr. Similarly, Starr's failure to meet the interim construction deadlines constituted a material and substantial breach. The fact that Nissan did not declare its Term Agreement with Starr breached and, therefore, terminated as each construction interim deadline passed is unimportant. The construction deadlines only applied if Starr intended to construct a facility. Starr's obligation under the Term Agreement could have been met up to the final deadline by Starr's acquisition of an existing facility which met Nissan's guidelines. Nissan did advise Starr periodically during the Term Agreement that Starr was in default and had committed a material and substantial breach of the contract by failing to meet the construction deadlines; however, Nissan would not have been in a position to consider the contract terminated until after the final deadline for having an operational and exclusive Nissan facility. Additionally, Hearing Officer Rigot reached the following conclusions of law: Starr's breach of the franchise agreement, which is not seriously disputed in this proceeding, was material and substantial. On strikingly similar facts, the Eleventh Circuit Court of Appeals found that the dealer's failure to construct a facility pursuant to the terms of a two-year term franchise agreement warranted its termination. Dick Winning Chrysler-Plymouth of Ft. Myers, Inc. v. Chrysler Motors Corporation, supra. The very reason Nissan required Starr to execute a Term Agreement was to require Starr to provide new dealership facilities for Nissan. Exhibit A in both the March Agreement and the September Agreement specifically provided that Starr's failure to meet the deadlines for providing new dealership facilities would constitute a material breach of the Agreement. Nissan's written and oral communications with Starr stressed the importance of Starr providing exclusive facilities and emphasized that Starr's failure to comply with Exhibit A constituted a material breach of the Agreement. Starr's argument that Nissan waived its right to insist on Starr's performance under the Agreement is without merit. For over two years Nissan attempted to obtain Starr's compliance with his contractual obligation. The evidence shows that Starr did not take seriously his contractual obligation and that Starr made no serious attempt to comply with any of the options given to him for fulfilling that obligation. Other than delay and failure to respond to Nissan's repeated requests for Starr to make a decision and proceed forward, the only affirmative act done by Starr was to send Nissan a drawing of where he would place a Nissan facility on the Lincoln-Mercury site. Nissan did not terminate the Agreement as and when Starr missed each of the interim deadlines. At the same time, however, Nissan insisted on complete performance by final deadline. Starr submitted to Nissan in November 1991 an uninformative drawing of the facility it would provide for Nissan adjacent to the Lincoln-Mercury facility, followed by a second uninformative drawing. On December 23, 1991, Starr submitted a site plan showing the facility and its location on the property and submitted the data reflecting the square footage of the different components in January 1992. Therefore, Starr did not receive approval of its construction plans until early February, shortly before the expiration of the Term Agreement. Nissan in good faith: (A) offered to extend the interim and final deadlines; (B) offered to extend those dates further at Starr's request; and (C) extended the expiration date of the Agreement to May 1, 1992, to enable Starr to execute an amendment memorializing the parties' agreement on a second extension. Nissan's acts do not show a waiver of its right to obtain performance pursuant to its contract with Starr; rather, they demonstrate Nissan's continuing good faith in its dealings with Starr. The final order entered by the Department on August 5, 1993, adopted the recommended order from DOAH case no. 92-5187, and terminated the franchise agreement. Thereafter, RSLM timely filed a notice of administrative appeal. The final order is currently before the First District Court of Appeal with oral argument scheduled for October 12, 1994. The Department has entered an order staying its final order pending the outcome of the judicial review. Subsequent to filing the appeal, on or about April 5, 1994, RSLM adopted a resolution which provided, in part: WHEREAS, the Board of Directors for RICK STARR LINCOLN MERCURY, INC., has determined it to be in the best interest of the corporation to sell the property described in Exhibit "A" attached hereto; it is RESOLVED that RICK STARR, the President of RICK STARR LINCOLN MERCURY, INC., is authorized and directed to execute all documents necessary and proper to carry out the purposes of this resolution. The property described above as "Exhibit 'A'" was Rick Starr Nissan. The franchise is to be acquired by Nissan of St. Lucie, Inc. (NSL), a Florida corporation. Based upon a resolution of NSL, Rick Starr is empowered to execute all documents necessary and proper to carry out the purchase. To that end, Rick Starr executed a notice to Petitioner advising of the proposed transfer to NSL, which, at the time, stated NSL's address to be 5400 South U.S. Highway 1, Fort Pierce, Florida. Additionally, Rick Starr as secretary for NSL, executed a letter to Petitioner's regional general manager dated April 6, 1994, that represented he had read the terms of the franchise agreement and that NSL agrees to comply with all the terms of same. Finally, Rick Starr, again as secretary for NSL, executed a letter to Petitioner's regional general manager dated April 6, 1994, that represented NSL would relocate the dealership to 4405 U.S. Highway 1, Fort Pierce, Florida (the proposed dealership site). Rick Starr owns one-third of the shares of NSL. The other one-third owners are Kenneth Carpi and Jeff Ross. According to Mr. Starr, he and Mr. Carpi are "very, very good friends." Mr. Starr described Mr. Ross as his "best friend." The three men also own JKR Properties, Inc. (JKR), a Florida corporation. JKR owns the property which is the proposed dealership site. On July 1, 1994, RSLM executed a lease with JKR for the proposed dealership site effective August 1, 1994. The NSL shareholder agreement provides, in part: Any dispute between the general manager and the shareholders will be decided by a majority vote. However, the shareholders acknowledge and agree and reserve to Rick Starr so long as Carpi, Ross and Starr remain shareholders, the right to veto the decisions of the remaining shareholders should Starr determine in his sole discretion that any irreparable injury to the corporation is being suffered or is threatened as a result thereof. One of the reasons Mr. Starr insisted on the foregoing language in the shareholder agreement was to insure he would have the final word if another person offered to purchase the dealership. Such protection is understandable since the purchase price to be paid by NSL is below the market value. Mr. Starr executed the purchase and sale agreement for both the buyer and seller. Mr. Starr did not acquire an interest in the proposed dealership site until almost a year after the final order was entered in DOAH case no. 92-5187. Mr. Starr was aware of the availability of the proposed dealership site in as early as mid-1991 since the location was recommended to him by Petitioner's representative. Mr. Starr intends to relocate Rick Starr Nissan to the proposed dealership site regardless of whether or not the transfer to NSL is approved. The relocation of Rick Starr Nissan at this time does not cure the breach of the dealership agreement which resulted in the cancellation of same.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order concluding that the Department is without jurisdiction to consider the verified complaint as the proposed transfer is not within Section 320.643, Florida Statutes. DONE AND RECOMMENDED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3103 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 30, 36 through 39, 41 through 44, 46, 48, 49, 50, 52 through 60, 63 through 68, and 70 are accepted. Paragraph 31 is rejected to the extent it suggests that Mr. Carpi must sell his shares by the use of the word "would." It is accepted Mr. Carpi may sell his shares and that if he does so Mr. Starr and Mr. Ross will become 50 percent shareholders. Paragraph 32 is rejected as to the characterization of the paragraph being other than as stated above. The exhibit speaks for itself. Paragraph 33 is rejected as irrelevant. Paragraph 34 is rejected as irrelevant or argument. Paragraph 35 is rejected as irrelevant or argument. The first sentence of paragraph 40 is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 45 is rejected as irrelevant. Paragraph 47 is rejected as argument, or not supported by the weight of the evidence. Paragraph 51 is rejected as irrelevant or argument. Paragraph 61 is rejected as irrelevant or argument. Paragraph 62 is rejected as irrelevant or argument. Paragraph 69 is rejected as irrelevant or argument. Paragraph 71 is rejected as irrelevant or argument. Rulings on the proposed findings of fact submitted by the Respondent: 1. Respondents presented additional argument not in the form of an proposed recommended order; therefore, no proposed findings of fact were submitted for acceptance or rejection. COPIES FURNISHED: Michael J. Alderman Room A432 Neil Kirkman Building Division of Motor Vehicles Tallahassee, Florida 32399-0635 Dean Bunch Cabaniss, Burke & Wagner, P.A. 909 East Park Avenue Tallahassee, Florida 32301 Kevin A. Russell Ruth F. Masters Latham & Watkins 233 S. Wacker Drive Suite 5800, Sears Tower Chicago, Illinois 60606 Walter E. Forehand Myers & Forehand 402-B North Office Plaza Drive Tallahassee, Florida 32301 Nissan of St. Lucie, Inc. 5400 South U.S. 1 Fort Pierce, Florida 34982 Kenneth J. Carpi 5810 N.W. 26th Court Boca Raton, Florida 33496 Jeff Ross 8159 Pinnacle Peak Las Vegas, Nevada 89113 Rick Starr 5400 South U.S. 1 Fort Pierce, Florida 34982
The Issue The issue in the case is whether Pacific Rim International West, Inc. (Pacific Rim), may establish a new franchise motor vehicle dealership at Tropical Scooters, LLC (Tropical), for the sale and service of motorcycles manufactured by Huzhou Daixi Zhenhua Technology Trade Co., Ltd. (DAIX).
Findings Of Fact There was no evidence presented at the hearing to establish that Powersports has a franchise agreement to sell or service DAIX motor vehicles. There was no evidence presented at the hearing that the Powersports dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new franchise motor vehicle dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and upon the post-hearing notice filed by Powersports that the protest was withdrawn, it is RECOMMENDED that the Department enter a final order dismissing the protest filed in this case. DONE AND ENTERED this 18th day of July, 2014, 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 18th day of July, 2014. COPIES FURNISHED: Boyd Walden, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B435 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Steve Hurm, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399-0635 Mark W. Stanley Tropical Scooters, LLC 11610 Seminole Boulevard Largo, Florida 33778-3206 Wendy Yu Pacific Rim International West, Inc. 2181 East Francis Street Ontario, California 91761-7723 Rob Pelzel, General Manager Pinellas Powersports, LLC Suite A 7000 Park Boulevard Pinellas Park, Florida 33781-3040
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Daniel Manry, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner's request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to LS Motorsports, LLC and Larkin Motorworks, LLC d/b/a St. Pete Scooter to sell motorcycles manufactured by Zongshen Industrial Group (ZONG) at 3029 Dr. Martin Luther King, Jr. Street North, St. Petersburg (Pinellas County), Florida 33704. Filed October 23, 2009 9:50 AM Division of Administrative Hearings. I DONE AND ORDERED this Jl)/f.,.,,,day of October,, 2009, in Tallahassee, Leon County, Florida. RL A. FORD, Direc or Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divi otor Vehicles 3 this day of October, 2009. N airiN . o.i.r AdmlnilntOr NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Chris Densmore Scooter Escapes, LLC d/b/a Scooter Escapes 1450 1st Avenue North St. Petersburg, Florida 33705 Ron Larkin Larkin Motorworks, LLC 3029 9th Street North St. Petersburg, Florida 33704 Mathu Solo LS Motorsports, LLC 10215 South Sam Houston Parkway West, Suite 100 Houston, Texas 77071 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice of Dismissal, a copy of which is attached, and incorporated by reference, in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Respondent, Rick Case Sunrise, LLC d/b/a Rick Case Kia, be granted a license to sell vehicles manufactured by Kia (KIA) at 1650 Sawgrass Corporate Parkway, Sunrise, (Broward County), Florida 33323, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed February 6, 2013 12:50 PM Division of Administrative Hearings DONE AND ORDERED this day of Febery 2013, in Tallahassee, Leon County, bil bo Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services thi Ue d f-Janauty. 03. is say ofa NOTICE OF XPPEAL: RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must ’be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Andy Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard, South, Suite 202 Tallahassee, Florida 32312 Andy.bertron@nelsonmullins.com Robert E. Sickles, Esquire Hinshaw & Bulbertson, LLP 100 South Ashley Drive, Suite 500 Tampa, Florida 33602 Rsickle@hinshawlaw.com Colm Moran, Esquire Hogan Lovells US, LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, California 90067 Colm.moran@hoganlovells.com R. Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 3203 cspickard@flb-law.com June C. McKinney Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Administrator
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order of Dismissal by Todd P. Resavage, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Voluntary Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby Filed April 25, 2013 8:34 AM Division of Administrative Hearings ORDERED that this case is CLOSED. DONE AND ORDERED this a3 day of April, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this_Q3__ day of April, 2013. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/wev Copies furnished: R. Craig Spickard, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 cspickard @kfb-law.com Virginia Gulde, Esquire Nelson, Mullins, Riley And Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Virginia.gulde @nelsonmullins.com Todd P. Resavage Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
