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CYCLE SPRINGS, INC., AND AMERICAN SUZUKI MOTOR CORPORATION vs JONES AND DABNEY, INC., D/B/A TRI CITY HONDA SUZUKI AND DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, 93-000369 (1993)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jan. 27, 1993 Number: 93-000369 Latest Update: Jul. 21, 1993

Findings Of Fact By stipulation, Jones & Dabney, Inc. has standing. Jones & Dabney, Inc. does business as Tri City Honda Suzuki (Tri City). Tri City sells Honda and Suzuki motorcycles at a dealership located at 14996 US Rte. 19 North. The location, which is in the south-central part of Pinellas County, is east of Largo, southeast of Clearwater, and northwest of St. Petersburg. Tri City formerly sold and serviced only Honda motorcycles. American Suzuki Motor Corporation (American Suzuki) approved Tri City's application for a Suzuki franchise on April 1, 1991. Tri City used its existing Honda location for the Suzuki dealership. Tri City spent $3000 in non-resale items, with nearly half of that amount for special Suzuki tools. Tri City also spent about $12,500 for parts. The initial non-vehicle expenditure of about $15,500 is about $3000 less than usual because American Suzuki allowed Tri City to use existing Honda equipment, such as video equipment, where possible. At the time of the application and approval process, Mr. Jones of Tri City and representatives of American Suzuki discussed the fact that American Suzuki would need a dealer for Pasco and north Pinellas counties. Mr. Jones said that he might be interested in moving his dealership into north Pinellas County. American Suzuki representatives indicated that they would listen to any proposal that Mr. Jones might like to make. However, he never raised the issue after he was awarded the Suzuki franchise. American Suzuki is represented presently in the area of Pinellas, Hillsborough, and Pasco counties by Tri City, a multiline dealer in Tampa (handling Suzuki, Honda, and Kawaski) and a multiline dealer in Zephyrhills, which is in eastern Pasco County (handling Suzuki and Kawaski). Previously, Suzukis were sold and serviced in south Pinellas County by a long-term dealer in Pinellas Park about 4.3 miles south of Tri City's location. The Pinellas Park dealer retired and sold the business, which shortly thereafter failed on January 2, 1991. American Suzuki was also represented in Pasco County and north Pinellas County by a dealer located in Holiday. The Holiday dealership was on US Rte. 19 about one-quarter mile north of the Pasco-Pinellas county line. At one time the fourth largest single-line Suzuki dealer in Florida, the Holiday dealer diversified, lost interest in the Suzuki motorcycle line, and closed the Suzuki dealership on March 2, 1990. The application to which Tri City objects was made more than one year following the closing of the Holiday dealership, so Tri City has a right to protest the establishment of the new dealer. The present case involves the decision of American Suzuki to award a Suzuki franchise to Cycle Springs, Inc. Cycle Springs, is currently a Yamaha dealer located at 37182 US Rte. 19, Palm Harbor. The location is in north Pinellas County just south of Tarpon Springs. Cycle Springs is located about 4 miles south of the former Holiday dealer. The distance between the Cycle Springs and Tri City locations is about 13 miles. It takes about 30 minutes to drive the distance during rush hour. American Suzuki's market share has been slipping in Pasco and Pinellas counties. In 1987, American Suzuki's market share in the national, Florida, Pasco County, and Pinellas County markets was, respectively, 11.57 percent, 12.75 percent, 21.66 percent, and 15.59 percent. By 1990, the manufacturer's market shares had risen to 14.65 percent nationally and remained about the same in Florida at 12.78 percent. But the shares for Pasco and Pinellas counties had fallen to 9.52 percent and 9.91 percent, respectively. In 1991, American Suzuki's market shares climbed in the country to 16.34 percent, in the state to 14.3 percent, and in Pasco County to 13.82 percent. The market share for Pinellas County remained roughly unchanged at 9.88 percent. In 1992, slight changes in market share for the country and Florida (to 15.92 percent and 14.62 percent, respectively) were accompanied by a decline of market share in Pasco County (to 12.2 percent) and an increase in market share in Pinellas County (to 14.44 percent). Market penetration in Pinellas County has improved compared to market penetration in Pasco County, which remains only 56 percent of what it was in 1987. However, even in Pinellas County market penetration is slightly less than it should be. It is about 1.5 percentage points less than it was in 1987 and almost three percentage points less than the average market penetration for American Suzuki in comparable Florida urban markets. Market penetration is based on motorcycle registrations, which, in Florida, exclude a large number of motorcross-type dirt and racing motorcycles and almost all all- terrain vehicles. Market penetration reflects the county in which vehicles are registered, not the location of dealers making sales. Thus, market penetration figures do not precisely reflect actual sales by dealers. However, the sales figures also indicate that Pinellas and Pasco counties are underperforming in terms of Suzuki sales. For 1992, for example, American Suzuki sold only 35 percent of expected sales in Pasco County and Pinellas County. By contrast, in 1988, American Suzuki sold 98 percent of expected sales in Pasco County, but only 39 percent of expected sales in Pinellas County, which suggests that the expected sales in Pasco County is realistic, but the expected sales in Pinellas County--due to demographic reasons-- is not realistic. American Suzuki has given Tri City a reasonable opportunity to increase Suzuki market share in the area. Tri City's initial order of vehicles has been sold except for one 250 cc dirt bike and one 350 cc dirt bike, which Mr. Jones chose to order with guidance from an American Suzuki representative, and two 80 cc motorcycles, which Mr. Jones ordered at the request of the American Suzuki representative in order to obtain these small, relatively inexpensive bikes for another dealer, who unfortunately reneged on his agreement to buy the bikes from Tri City. As of May 3, 1993, a total of 12 vehicles in Tri City's 55-vehicle inventory remain from 1991 orders, including the four described in the preceding paragraph. Except for three vehicles ordered in 1993, the rest of the inventory was purchased in 1992. From May, 1992, to April, 1993, Tri City has worked down its inventory of Suzukis from 90 to 55 vehicles. This corresponds to Tri City's initial order of 58 vehicles. In reducing its inventory during 1992, when Tri City took 77 vehicles from Suzuki, Tri City took only 27 vehicles in 1993, including only 18 of the 31 motorcycles allocated to it. American Suzuki has given Tri City a reasonable opportunity to increase market share and sales. Tri City has generally not been out of the better-selling Suzukis, but apparently has elected to reduce inventory, rather than try to increase sales, in order to sustain a more comfortable ratio of inventory to vehicles than the ratio that prevailed in 1992. At present, Tri City does not appear well-situated to increase sales in Pinellas County or Pasco County, and the failure to do so, especially in Pasco County where American Suzuki has lost considerable sales and market share, tends to demonstrate inadequate representation. Tri City and Cycle Springs are about eight miles, or 38 percent, closer than the former Holiday and Pinellas Park Suzuki dealers. While greater geographic spread might be optimal, American Suzuki attempted to fill the Pasco County location for some time without success. Due to the reduced profitability of motorcycle dealerships, when compared to many automobile dealerships, it is often necessary to obtain an existing dealer or to convert a small retail operation, such as a lawnmower store. In this case, American Suzuki investigated the available possibilities and Cycle Springs appears to have emerged as the lone suitable applicant that was interested in taking on the Suzuki line. Analysis of recent Suzuki sales by Tri City, recent Yamaha sales by Cycle Springs, and older Suzuki sales by the former Holiday dealer discloses that Tri City would not likely lose Suzuki sales to Cycle Springs. Tri City sales will likely concentrate in north-central Pinellas County, and Cycle Springs sales will predominate in Pasco and north Pinellas counties. The availability of another Suzuki dealer for sales and service may increase Tri City's Suzuki sales as potential customers perceive competitive advantages in the pricing and availability of products and service. For the reasons set forth above, American Suzuki has proved that Suzuki is inadequately represented in the relevant market and that the establishment of Cycle Springs as a new Suzuki dealer is justified. There is no evidence that Tri City's investment in American Suzuki products is excessive. American Suzuki has not denied Tri City the opportunity for reasonable growth and market expansion. There is no evidence that the establishment of the new dealership would seriously jeopardize the investment in Suzuki products and equipment already made by Tri City. The availability of another Suzuki sales and service location may enhance sales and service for both dealers and will favorably impact consumers and the public interest.

Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order dismissing the protest of Jones & Dabney, Inc. to the proposed establishment by American Suzuki Motor Corporation of a Suzuki dealership at Cycle Springs, Inc., 37182 US Rte. 19 North, Palm Harbor, Florida. ENTERED on May 19, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 19, 1993. COPIES FURNISHED: Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Dean Bunch Cabaniss, Burke & Wagner 851 East Park Ave. Tallahassee, Florida 32301 Philip L. Jones Jones & Dabney, Inc. 14996 US Rte. 19 North Clearwater, Florida 34624

Florida Laws (2) 120.57320.642
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CLASSIC MOTORCYCLES AND SIDECARS, INC., AND SCOOTER CITY USA, LLC vs ACTION ORLANDO MOTORSPORTS, 09-000118 (2009)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Jan. 09, 2009 Number: 09-000118 Latest Update: Jun. 30, 2009

Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel Manry, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’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 and ADJUDGED that Petitioner, Scooter City USA, LLC, be granted a license as a dealer for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd (ZHNG) at 2650 West Fairbanks Avenue, Winter Park (Orange County), Florida 32789 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. DONE AND ORDERED this % ay of June, 2009, in Tallahassee, Leon County, Florida. 'ARL A. FORD, Direct Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this £4 “ay of June, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procédure. CAD/vlg Copies furnished: James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32301 Thomas Lynott Classic Motorcycles and Sidecars, Inc. Post Office Box 969 Preston, Washington 98050 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 STATE OF FLORIDA EE, DIVISION OF ADMINISTRATIVE HEARINGS io Us Ga [es Pe) CLASSIC MOTORCYCLES AND __ Ulu We 9 SIDECARS, INC., AND SCOOTER “hy, lois ne CITY USA, LLC, MEM Rar Petitioner, “AYA 165 (VE VS. Case Nos. 09-0118 09-0119 JAMES SURSELY, d/b/a ACTION ORLANDO MOTORSPORTS, Respondent. NOTICE OF WITHDRAWAL I, James Sursely d/b/a Action Orlando Motorsports, would like to officially withdraw my protest against Classic Motorcycles and Sidecars Inc., and Scooter City USA, LLC, located at 2650 West Fairbanks Avenue, Winter Park, Florida 32789 to carry the (ZHNG) Taizhou Zhongneng Motorcycle Co. Ltd. I still however, am continuing my protest against Classic Motorcycles and Sidecars, Inc., and Scooter City USA, LLC. to carry the (ZHNG) Taizhou Zhongneng Motorcycle Co. Ltd. line make at the following address 2164 Platinum road, unit K, Apopka, Florida 32703. : Respectfully submitted this 117" day of May, 2009, 306 W. Main St. Apopka, Florida 32712 (407) 889-7300 CERTIFICATE OF SERVICE I certify that a true and correct copy of this Unilateral Response to Initial Order has been furnished via Fax (850) 921-6847and U.S mail to: Honorable DANIEL MANRY, Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060 Michael James Alderman, Esquire, Department of Highway Safety and Motor Vehicles, Neil Kirkman Building, room A~432, 2900 Apalachee Parkway, Tallahassee, Florida 32344 Maureen McCarthy Daughton, Esquire, Broad and Cassel, 215 South Monroe Street, Suite 400, Post Office Drawer 11300, Tallahassee, Florida 32301 Randy Lazarus, Scooter City USA, LLC., 2650 W Fairbanks Avenue, Winter Park Florida 32789 Thomas Lynott, Classic Motorcycles and Sidecars, Inc., Post Office Box 969 Preston, Washington 98050

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AMERICAN SUZUKI MOTOR CORPORATION AND BILL SEIDLE SUZUKI, INC. vs MECHANICAL SERVICES, INC., OF WEST PALM BEACH AND DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, 94-006991 (1994)
Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Dec. 16, 1994 Number: 94-006991 Latest Update: Sep. 14, 1995

Findings Of Fact Respondent, Mechanical Services of West Palm Beach, Inc. (Mechanical Services), is an existing Suzuki motorcycle dealership located in Palm Beach County, Florida. Respondent, Deerfield Suzuki, Inc. (Deerfield Suzuki), is an existing Suzuki motorcycle dealership located at 4141 North Federal Highway, Pompano Beach, Broward County, Florida. Petitioner, Fun Stream Recreation, Inc. d/b/a Delray Kawasaki (Delray Kawasaki) is an existing dealer for Kawasaki motorcycles and is located at 505 N.E. 5th Avenue, Delray Beach, Palm Beach County, Florida. Delray Kawasaki is the proposed Suzuki dealership. Petitioner, American Suzuki Motor Corporation (American Suzuki) is the licensee which intends to establish a new Suzuki dealership at Delray Kawasaki. Deerfield Suzuki and American Suzuki have stipulated that Deerfield Suzuki is located within 12.5 miles of the location of the proposed dealership. Palm Beach County, Florida, has a population in excess of 300,000. Based on information from the Bureau of Economic and Business Research, University of Florida, Palm Beach County's population was estimated to be 937,190 as of April 1, 1994. No evidence was presented to establish that Mechanical Services was located within 12.5 miles of the location of the proposed dealership or that during the 36 month period before the filing of the application for the proposed dealership that Mechanical Services made 25 percent of its retail sales of new vehicles to persons whose registered household addresses were located within a radius of 12.5 miles of the location of the proposed dealership. COMMUNITY OR TERRITORY Neither Deerfield Suzuki nor Mechanical Services has an agreement with American Suzuki which geographically defines the sales territory for the dealerships. The majority of Suzuki sales by Mechanical Services are in Palm Beach County. Deerfield Suzuki derives the majority of its Suzuki sales from Broward County residents. The majority of Kawasaki sales from the proposed Suzuki dealership, Delray Kawasaki, are made to customers in Palm Beach County. American Suzuki contends that Palm Beach County is the community or territory which should be considered in determining whether there is adequate representation in the community or territory of the proposed dealership. Deerfield Suzuki presented no evidence to indicate that the community or territory should be an area other than Palm Beach County. Based on the evidence presented, the relevant community or territory is defined as Palm Beach County, Florida. IMPACT OF THE ESTABLISHMENT OF THE PROPOSED DEALERSHIP During 1992, Deerfield Suzuki made 49 Suzuki sales to customers within a 12.5 mile radius of the proposed dealership. These sales represented 38 percent of Deerfield Suzuki's total retail sales for 1992. Deerfield Suzuki made 31 Suzuki sales in 1993 to customers within a 12.5 mile radius of the proposed dealership. These sales accounted for 32 percent of Deerfield Suzuki's total Suzuki retail sales for 1993. Deerfield Suzuki derived 32 percent of its total Suzuki retail sales in 1994 from customers within a 12.5 mile radius of the proposed dealership, by making 34 sales. Peter A. Barskis, President of Deerfield Suzuki, anticipates that the establishment of the proposed dealership will lessen the number of sales that Deerfield is currently making in the Boca Raton and Delray Beach area. Mr. Barskis did not present any evidence to indicate to what extent Deerfield Suzuki's market share in those areas would be diminished and to what extent it would have a financial impact on Deerfield Suzuki. INVESTMENTS MADE AND OBLIGATIONS INCURRED BY CURRENT DEALERSHIPS The only evidence presented with regard to the facilities of the exiting dealers pertained to Mechanical Services which sought and received permission from American Suzuki to relocate Suzuki into its existing facility. Mechanical Services represented to American Suzuki that it would construct an additional facility in order to properly represent Suzuki. To date, Mechanical Services has not constructed an additional facility. REASONABLY EXPECTED MARKET PENETRATION Market penetration is the percentage of Suzuki products sold compared to the total industry, regardless of the dealer which sold the product. In the motorcycle industry, registration and sales information are compiled by R.L. Polk and Co. (Polk) and since January 1994, by the Motorcycle Industry Council (MIC). Polk data reflects only motorcycles which are registered with the states for use on the highways. Most all terrain vehicles (ATV's) are not registered with the state of Florida. Polk reports registrations of motor scooters which are registered for street use; however, Suzuki does not compete in the motor scooter market. Thus, data from Polk is only utilized for the "2- wheel motorcycle" or "street-legal" motorcycle category. MIC data, available only since the beginning of 1994, reports all sales of vehicles from the major motorcycle brands, regardless of whether the vehicles are registered for street use. Based on the Polk data, Suzuki received the following market share of the motorcycle market for 1990-1994: 1990 1991 1992 1993 1994 National 15.01 16.34 15.92 14.81 13.37 Florida 12.78 14.30 14.62 12.59 11.38 Broward County 10.32 16.08 16.97 13.17 11.48 Palm Beach County 16.33 15.85 11.52 9.57 8.81 Based on the MIC data, Suzuki received the following market share for 1994: National 13.44 Florida 14.29 Broward County 15.84 Palm Beach County 10.98 Broward County is adjacent to Palm Beach County. Based on information from the Bureau of Economic and Business Research, University of Florida, Broward County's population was estimated to be 1,340,220 as of April 1, 1994. Suzuki does not have dealers in some areas of Florida where its competitors do. Such areas include St. Augustine, Key West, and Gainesville. Based on the evidence presented, Broward County is an appropriate standard to use in determining adequacy of representation in Palm Beach County. There is adequate representation of Suzuki in Broward County. In 1994 there were a total of 1,394 motorcycle type vehicles sold in Palm Beach County. Using Broward County's market penetration of 15.84 percent as a standard, it would be reasonable to have expected 221 Suzuki sales. The actual sales made were 153. Thus, 68 of the expected sales were lost to Suzuki's competitors. If you look at Broward County as a standard based on population for 1994, there were 41 sales in Palm Beach County that were lost to Suzuki's competitors. There were 278 Suzuki sales in Broward County in 1994. Based on Broward County's population of 1,340,220, the ratio of population to Suzuki sales is 4821/1. Based on Palm Beach County's population of 937,190, it would be reasonable to have expected 194 Suzuki sales in 1994. However, the actual sales were 153. ACTIONS BY LICENSEE RELATING TO OPPORTUNITY FOR GROWTH, EXPANSION AND RELOCATION FOR EXISTING DEALERS In 1990, Deerfield Suzuki sought and received permission from American Suzuki to relocate from its prior location in Deerfield Beach to its current location in Pompano Beach which is three miles south of its previous location. In December 1992, Mechanical Services sought and gained approval from American Suzuki to transfer a franchise previously held by another dealership. As a result of this transfer the Suzuki dealership was relocated one mile north or further away from Delray Beach. Deerfield has requested American Suzuki to supply it with vehicles in excess of its allocation and American Suzuki has done so. From 1991 to 1995, American Suzuki has discontinued some models, however, the models were discontinued for either product liability reasons or in the normal change of models carried on by all manufacturers on a periodic basis. American Suzuki has also added models during this time period. In 1990 and 1991, American Suzuki did spring advertising promotions in Palm Beach County. In 1991 and 1992, American Suzuki did spring advertising promotions in Broward County which lasted approximately two months each. In 1992, 1993, 1994, and 1995, American Suzuki did a Miami Grand Prix advertising promotion in Broward County, which lasted one week each year. DISTANCE BETWEEN EXISTING DEALERS AND PROPOSED DEALER The driving distance between Mechanical Services and Delray Kawasaki, the proposed dealership, is 22.2 miles, and the travel time between the two dealers is 31 minutes. The driving distance between Deerfield Suzuki and Delray Kawasaki is 18.1 miles and the travel time is 24 minutes. ADEQUACY OF INTERBRAND AND INTRABRAND COMPETITION AND CONVENIENCE OF CONSUMER CARE In 1994, there were three Suzuki dealers, two Honda dealers, three Yamaha dealers, and two Kawasaki dealers in Broward County. In 1994, Palm Beach County had one Suzuki dealership, two Honda dealerships, one Yamaha dealership, and two Kawasaki dealerships. One Kawasaki dealership is located in Delray Beach and one Honda dealership is located in the southern portion of Palm Beach County in Boca Raton. The remaining dealerships are located in the northern portion of Palm Beach County. When the number of Suzuki sales in the Delray Beach area made by Mechanical Services and Deerfield Suzuki are compared to the Kawasaki sales in that area, it is obvious that there is a lack of interbrand competition in that area. See Suzuki Exhibits 2, 3, and 4. The distance between Mechanical Services and Deerfield Suzuki does not promote intrabrand competition. For example a customer in West Palm Beach could shop for a Suzuki at Mechanical Services , but then would have to travel almost an hour south to Broward County, or a substantial distance north to Martin County, to comparison-shop for a better price, service, and selection. ECONOMIC AND MARKETING CONDITIONS In terms of future growth, Palm Beach County is projected to continue its substantial growth, in terms of population, through 2020. The total motorcycle market, as reflected in Polk registrations for Palm Beach County, has increased consistently since 1991. In 1991, the total motorcycle registrations were 568; in 1992, 712; in 1993, 857; and in 1994, 863. On a national level, although total motorcycle industry registrations reached a low point of 183,679 in 1991, this figure has steadily increased to 187,989 in 1992; 214,618 in 1993; and 234,337 in 1994. In terms of future growth of the motorcycle industry nationwide, this increase is forecasted to continue at least through 1998. There has been a decline in the national market share for Suzuki from 1992 through 1994. However, there has been a greater decline in the market share in Palm Beach County for the same time period. The economic growth and marketing data demonstrate that the addition of a Suzuki dealership in Delray Beach is justified by the growth of population and the motorcycle market. PERFORMANCE OF THE DEALER NETWORK Based on the performance of the existing dealer network for Palm Beach County using Polk data, the efficiency percentage of sales penetration in Palm Beach County for 1990-1994 as compared to the national and state penetration was as follows: 1990 1991 1992 1993 1994 National 108.8 97.0 72.4 64.6 65.9 Florida 127.7 110.8 78.8 76.0 77.4 Using the MIC data for 1994, the existing dealer network's efficiency as compared to the national market penetration was 81.6 percent and as compared to the Florida market penetration was 76.8 percent. In comparison, the efficiency percentage of performance of the dealer network in adjacent Broward county for 1990-1994 based on Polk data was as follows: 1990 1991 1992 1993 1994 National 68.8 98.4 106.6 88.9 85.9 Florida 80.8 112.4 116.1 104.6 100.9 Based on MIC data the efficiency of performance for Broward County for 1994 was 118 percent as compared to the national market penetration and 111 percent as compared to the Florida market penetration.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the protest of Mechanical Services for lack of standing and granting the application to establish a Suzuki motorcycle dealership at Delray Kawasaki, 505 N.E. 5th Avenue, Delray Beach, Florida. DONE AND ENTERED this 10th day of August, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 10th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6991 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: Rejected as constituting a conclusion of law. Paragraph 5: The first sentence is rejected as constituting a conclusion of law. The second sentence is accepted. Paragraphs 6-17 : Accepted in substance. Paragraphs 18-19: Rejected as constituting argument. Paragraph 20: Accepted in substance as it relates to Broward County but rejected as to Dade County as irrelevant. Paragraphs 21-23: Rejected as subordinate to the facts found. Paragraph 24: Rejected to the extent that Deerfield Suzuki argues that the appropriate standard is the national average. Paragraph 25: Rejected as constituting argument. Paragraph 26: The first sentence is accepted in substance except as to the two weeks. The evidence established the duration was one week. The last sentence is rejected as constituting argument. Paragraph 27: The first sentence is accepted in substance. The first half of the second sentence is accepted in substance and the remainder is rejected as irrelevant. Paragraphs 28-33: Accepted in substance. Paragraph 34: Rejected as unnecessary. Paragraphs 35-39: Accepted in substance. Paragraph 40: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. Paragraphs 41-42: Rejected as constituting argument. Paragraph 43: Accepted in substance. Paragraph 44: Rejected as constituting argument. Paragraphs 45-51: Accepted in substance. Paragraph 52: Rejected as constituting argument. Paragraphs 53-54: Accepted in substance. Paragraph 55: Rejected as constituting argument. Paragraphs 56-60: Accepted in substance. Paragraph 61: Accepted. Respondent Deerfield Suzuki's Proposed Findings of Fact. (Deerfield Suzuki did not delineate findings of fact and conclusions of law.) Paragraph 1: The first, second and third sentences are rejected as constituting argument. The last sentence is rejected as not based on the greater weight of the evidence and as irrelevant because the Palm Beach County averages also fell below the national averages from 1991-1994. Paragraph 2: The first sentence is accepted in substance. The second and third sentences are rejected as not supported by the greater weight of the evidence. The fourth sentence is rejected as subordinate to the facts found because since 1991 Palm Beach County's average has been lower than the national, Florida, and Broward County averages. The fifth and sixth sentences are accepted in substance. The seventh sentence is rejected as constituting argument. The eighth sentence is rejected as subordinate to the facts found. The ninth sentence is rejected as constituting argument. The tenth sentence is accepted in substance. Paragraph 3: The last sentence is rejected as constituting argument. The remainder is accepted in substance. Paragraph 4: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: John Logsdon Cycles of Palm Beach 2353 North Military Trail West Palm Beach, Florida 33409 Dean Bunch, Esquire Cabaniss, Burke & Wagner 909 East Park Avenue Tallahassee, Florida 32301 Mr. Peter A. Barskis, President Deerfield Suzuki, Inc. 4141 North Federal Highway Pompano Beach, Florida 33064 Mike Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 Tallahassee, Florida 32399-0504 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500

Florida Laws (4) 120.5714.2915.01320.642
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GALAXY POWERSPORTS, LLC, D/B/A JCL INTERNATIONAL, LLC, AND TGT COMPANIES, INC., D/B/A EXTREME MOTOR SALES vs JUDE A. MITCHELL, D/B/A JUDE'S CYCLE SERVICE, 09-002327 (2009)
Division of Administrative Hearings, Florida Filed:Orlando, Florida May 01, 2009 Number: 09-002327 Latest Update: Dec. 23, 2009

Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order by, Daniel Manry, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Recommended Order as its Final Order in this matter. Accordingly, it is hereby ORDERED that Petitioner's, Galaxy Powersports, LLC d/b/a JCL International, LLC and TGT Companies, Inc., d/b/a Extreme Motor Sales, request to establish a new dealership for the sale of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) and Filed December 23, 2009 3:50 PM Division of Administrative Hearings. Benzhou Vehicle Industry Group Co. Ltd. (SHWI) at 1918 South Orange Blossom Trail, Apopka (Orange County), Florida 32703 is DENIED. DONE AND ORDERED this y /Id of December, 2009, in Tallahassee, Leon County, Florida. LCARL A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of r¥otor Vehicles this P: day of December, 2009. N alini .DNlerUAdministrator 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: Jude A. Mitchell Jude's Cycle Service Post Office Box 585574 Orlando, Florida 32858 Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Tina Wilson TGT Companies, Inc., d/b/a Extreme Motor Sales 1918 South Orange Blossom Trail Apopka, Florida 32703 Daniel Manry Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602

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HOLLYWOOD ISUZU, INC., AND AMERICAN ISUZU MOTORS vs. DAVE ZINN TOYOTA, INC., D/B/A ISUZU OF NORTH MIAMI, 81-002598 (1981)
Division of Administrative Hearings, Florida Number: 81-002598 Latest Update: May 27, 1982

Findings Of Fact American Isuzu is the licensed distributor of Isuzu motorcars and trucks in the United States. American Isuzu licenses franchise dealers to market Isuzu cars and trucks to the consuming public. Isuzu products are manufactured in Japan. American Isuzu began marketing Isuzu products in the United States in March, 1981. Isuzu products compete primarily with other compact imported cars and trucks such as Datsun, Toyota, Volkswagen and others. American Isuzu supports the application of Hollywood Isuzu for licensure to market Isuzu products in Hollywood, Florida. Isuzu of North Miami is owned by David Zinn. Isuzu of North Miami is currently under contract with American Isuzu and duly licensed to market Isuzu products at a location in northwestern Dade County, Florida. Zinn is a capable automobile dealer. He operates a successful Datsun dealership in Stuart, Florida, and a successful Toyota dealership in north Dade County, Florida. Zinn's was the first Toyota dealership in Florida. He has been involved in automobile sales for most of his life. His stature as a successful dealer has been recognized. At the time of the hearing, he was serving as Chairman-Elect of the Board for the American International Automotive Dealership Association, an organization which advances the interests of imported-automobile dealers. Zinn is fully qualified to operate an Isuzu dealership. Isuzu of North Miami is located on U.S. Highway 441 in northern Dade County. The facility is directly across the street from Zinn's Toyota dealership. He has constructed a complete sales and service facility in order to effectively market and service Isuzu automobiles. He has invested approximately $850,000 in the Isuzu dealership. At the time of the hearing, construction on the facility had not been entirely finished, but it was sufficiently completed so that sales and service functions were under way. Hollywood Isuzu is owned by George Nassief. Nassief has been involved in automobile sales for the past thirty years. He currently owns and operates three automobile dealerships in Ohio. He has won dealer awards from Ford, Pontiac, Toyota and Honda. Nassief has been interested in developing an automobile dealership in south Florida. American Isuzu has granted Hollywood Isuzu a franchise contract to operate an Isuzu dealership at 1321 North Sixtieth Avenue, Hollywood, Florida. Sixtieth Avenue is also known as U.S. Highway 441. The Isuzu of North Miami facility is less than five miles from the proposed Hollywood Isuzu location on the same roadway. In order to sell and service Isuzu products, Nassief proposes to construct a complete sales and service facility. He has already purchased land, hired an architect and begun preparation of the site. He plans to invest approximately $700,000 in the venture. Nassief is fully qualified to operate an Isuzu dealership. American Isuzu has developed marketing concepts or strategies to advance its entry into the American automotive market. For initial penetration, American Isuzu chose several market areas primarily in the western and southeastern United States. Florida is a well-recognized imported automobile market, and south Florida is the major Florida market. American Isuzu targeted south Florida as a primary zone for its initial efforts. Initial plans were to locate four dealerships in Broward County and three in Dade County. A decision was made to select dealers from individuals who had demonstrated themselves as successful dealers of other products. American Isuzu decided to establish average-sized dealerships rather than "size-of-market" dealers. Ultimately, American Isuzu desires to have each of its dealers be average in size. Voluntary trade restrictions that have been imposed upon automobiles imported from Japan have interfered somewhat with American Isuzu's initial plans. However, three Broward County and two Dade County dealerships have been established. One Broward dealership is located on U.S. Highway 441 in Plantation, Florida, approximately six miles north of the location proposed by Hollywood Isuzu. The other two Broward County Isuzu dealerships are located in the northern and central portions of the county, along U.S. Highway 1 in the City of Fort Lauderdale. These locations are to the east of the Plantation location, the proposed Hollywood location and Isuzu of North Miami. During the time that Zinn was negotiating with American Isuzu for an Isuzu franchise, he proposed to locate in western Broward County near the presently proposed Hollywood Isuzu location. The then District Manager of American Isuzu, Mr. Mike Bonamy, declined to approve that location, and instead insisted upon the north Miami location. Bonamy suggested that Zinn would be able to serve the west Hollywood market from the northern Dade County location. Zinn was led to believe that a Hollywood location would be approved, but that it would be located along U.S. Highway 1, rather than on the same highway as his dealership. Isuzu of North Miami does not oppose the creation of a fourth Isuzu dealership in Broward County, but rather opposes the location of it on U.S. Highway 441, rather than U.S. Highway 1. American Isuzu has not delineated specific market areas for its dealerships. American Isuzu is seeking to penetrate the broad south Florida market by the introduction of various dealerships. A primary source of customers within this area is located in the western portions of Broward and Dade Counties. Through existing dealerships, Isuzu has obtained a market penetration reflected as a percentage of total import sales which equals its penetration statewide in Florida. American Isuzu's entry into the American market would be facilitated by strongly penetrating certain market areas, then expanding from that base. American Isuzu has sought to accomplish this strategy by locating numerous dealers in south Florida. Despite the emphasis, American Isuzu has not penetrated south Florida more pervasively than it has the state, generally. American Isuzu is clearly capable of marketing additional automobiles in south Florida. In order to accomplish that in harmony with its policy of maintaining average-sized dealerships, it is necessary that American Isuzu establish an additional Broward County dealership. The western portion of Hollywood, where Hollywood Isuzu proposes to locate, is a logical choice for the additional dealership. Numerous clusters of dealerships have been established along U.S. Highway 441 in northern Dade County and western Broward County. In close proximity to Isuzu of North Miami, there are Toyota, Mazda and Volkswagen dealerships. In close proximity to the proposed Hollywood Isuzu location, there are Toyota, Honda and Datsun dealerships. In close proximity to the Plantation Isuzu dealership, there are Mazda, Toyota and Datsun dealerships. Such "clusters" of competing dealerships tend to stimulate sales. Location of an Isuzu dealership at the proposed Hollywood location should not operate to reduce sales on the part of Isuzu of North Miami. Rather, the dealership should aid Isuzu in further penetrating the Broward and Dade County markets. By increasing the visibility of Isuzu generally, the additional facility should also serve to stimulate Isuzu sales. While Isuzu of North Miami can offer Isuzu automobiles to potential customers in the west Hollywood area, it cannot stimulate such sales as well as a specific dealership in that location could. American Isuzu has charged that Isuzu of North Miami has not complied with certain provisions of its licensing agreement. These allegations are not supported by the evidence. Isuzu of North Miami originally proposed to appoint David Zinn's son Craig to manage the Isuzu of North Miami facility. Craig Zinn has, however, decided to pursue another opportunity. It does not appear that the absence of Craig Zinn from the Isuzu of North Miami picture renders Isuzu of North Miami unable to adequately sell and service Isuzu automobiles. Indeed, it appears that Isuzu of North Miami has personnel who are fully capable of operating a successful dealership. American Isuzu has alleged that Isuzu of North Miami does not have a sufficient number of trained service personnel and has not purchased sufficient tools. These allegations are not sustained by the evidence. It does appear that Isuzu of North Miami has at least two trained and qualified Isuzu mechanics and has purchased tools with which it can properly service Isuzu automobiles.

Florida Laws (3) 120.57120.60320.642
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MITSUBISHI MOTORS NORTH AMERICA, INC. AND HMWP, INC., D/B/A WINTER PARK MITSUBISHI vs COLONIAL IMPORTS, LTD, D/B/A SPORT MITSUBISHI, 10-008969 (2010)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Sep. 10, 2010 Number: 10-008969 Latest Update: Oct. 14, 2010

Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Elizabeth W. McArthur, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Withdrawal of Notice of Establishment and Motion to Dismiss, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Mitsubishi Motors North America, Inc. and HMWP, Inc. d/b/a Winter Park Mitsubishi to sell automobiles of the line-make Mitsubishi (MITS) at 1970 Semoran Boulevard, Winter Park (Seminole County), Florida 32792. Filed October 14, 2010 8:00 AM Division of Administrative Hearings. DONE AND ORDERED this La day of October, 2010, in Tallahassee, Leon County, Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motor Vehicles this day of October, 2010. 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: J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 John W. Forehand, Esquire Kurkin, Forehand, Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Juliette E. Holler-Rogers HMWP, Inc. 1011 North Wymore Road Winter Park, Florida 32789 Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator

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DEAN'S KAWASAKI, INC., D/B/A DEAN'S HONDA-KAWASKI-SUZUKI vs. U. S. SUZUKI MOTOR CORPORATION, 86-000293 (1986)
Division of Administrative Hearings, Florida Number: 86-000293 Latest Update: Jul. 25, 1986

Findings Of Fact Petitioner, Dean's Kawasaki, Inc., d/b/a Dean's Honda-Kawasaki-Suzuki (Dean's), is an authorized dealer for Suzuki brand motorcycles, all terrain vehicles (ATV's) and generators in Vero Beach, Indian River County, Florida. Dean's is also an authorized dealer for similar Honda and Kawasaki products. Lorre Dean Mays is the president and owner of Dean's. Mr. Mays purchased the dealership, then known as Suzuki of Vero Beach, on July 31, 1981, for approximately $80,000. The purchase price reflected consideration of all assets of the business, except motorcycles, 1/ and included $7,238 of Suzuki parts and accessories and $5,690 of other accessories. Dean's currently has approximately $8,000 worth of Suzuki parts and accessories in inventory. At the time of its acquisition, the Vero Beach dealership sold exclusively Suzuki products and had been, for the year preceding July 1981, one of the top one hundred sales producers in the United States. At hearing, Mr. Mays claimed to have won this award from Suzuki, however, the evidence is clear that such award was not attributable to Mr. Mays' efforts in the dealership. While the award was given to the dealership, it was based on the dealership's performance prior to its purchase by Mr. Mays. Although not an award winning dealer, there is no suggestion that Dean's performance prior to the 1985 model year (October 1, 1984, through September 30, 1985) was anything short of satisfactory. On February 12, 1985, Suzuki's district sales manager, Charles Barrett, made his semi-annual visit to Dean's. During the course of that 31 hour visit, Mr. Barrett inventoried Dean's product lines and reviewed, with Mr. Mays, Dean's sales figures. Mr. Barrett's inspection revealed that Dean's had in stock 19 Suzuki units (11 old model motorcycles, 4 current model motorcycles, and 4 current model ATV's), and no Suzuki units on order. Comparatively, Dean's had on hand 20 Kawasaki units and 100 Honda units. Dean's Suzuki sales figures and market share for Indian River County were substantially below those of the previous year. Since the commencement of the 1985 model year on October 1, 1984, Dean's had sold only 7 Suzuki units, 2/ compared with 45 units the previous year. During the same time period, Dean's had sold 25 Kawasaki units and 150 Honda units. Nationally, Kawasaki and Suzuki enjoy about the same percentage of the market. At the conclusion of his visit, Mr. Barrett advised Mr. Mays, orally and in writing, that Dean's sale of two wheel products was poor, that better sales efforts needed to be made, and that more Suzuki units needed to be ordered and stocked. Mr. Barrett recommended that Dean's place an order for twenty 1985 model motorcycles, which would represent sixteen different models in Suzuki's current product line, as well as an advance order for fourteen 1986 model motorcycles. As of September 1985, Suzuki's records reflect that Dean's had not ordered any Suzuki units, and had made only one additional sale of a Suzuki product. At the time of hearing, Dean's had only two Suzuki units in stack. By letter of September 23, 1985, Respondent, Suzuki, notified Dean's that its dealer agreement was cancelled. The letter of termination provided in pertinent part: This action is being taken based on the following: You have failed to maintain a sales volume which is comparable to other similarly situated dealers within your region. You have failed to maintain a sufficient level of Suzuki inventory to adequately represent the line of Suzuki products. You have failed to use Suzuki advertising programs to promote Suzuki products in your sales area. Dean's timely filed a verified complaint with Respondent, Department of Highway Safety and Motor Vehicles (Department), alleging that its sales volume exceeded that of similarly situated dealers, that it maintained a sufficient inventory to supply its region, that it had participated in all Suzuki promotions available to it, and that the proposed cancellation was an unfair cancellation under Section 320.641, Florida Statutes. To compare Dean's sales performance with "similarly located Suzuki dealers in comparable trade areas," Suzuki identified its dealers situated in Florida counties with similar populations and similar total industry sales. During the period from December 31, 1984, through October 1, 1985, sales of Suzuki products by Dean's (Indian River County), compared with the dealerships in the other counties, were as follows: Citrus County 62 Clay County 112 Hernando County 13 Indian River County 5 Martin County 59 Monroe County 18 Osceola County 40 Putnam County 36 St. Johns County 17 While Dean questioned whether some of the counties selected by Suzuki were truly comparable to Indian River County, it offered no proof that would detract from the probative value of Suzuki's comparison. The sale of five Suzuki units in a nine-month period was significantly below that of similarly located Suzuki dealers, and Dean's did not suggest or attempt to show otherwise. Rather, Dean's sought to show that its sales performance was greater than that reflected by Suzuki's records because Dean's registered all purchases and sales through Mr. May's Okeechobee County dealership. In 1984 Mr. Mays had acquired Suzuki of Okeechobee. He avers that upon its acquisition he undertook to "improve" the Okeechobee franchise by purchasing for both franchises, and registering sales for both franchises, under his Okeechobee dealership number. According to Mr. Mays, he adopted this approach to "establish" the Okeechobee dealership and, thereby, assure its "allocation" of Suzuki products. Mr. Mays' testimony is not credited. 3/ During the 1985 and 1986 model years, there was no shortage of Suzuki products and Suzuki had no "allocation" policy. Mr. Mays was specifically advised by Mr. Barrett on February 12, 1985, that the Vero Beach dealership had a poor sales record and that it needed to stock more units to promote the Suzuki line. The evidence establishes that Dean's did not improve its sales record and that it did not stock for display, demonstration, or sale an inventory adequate to promote Suzuki's product line. 4/ The proof is consistent with Mr. Mays' concession that over the last two years he did not pay as much attention to his business as he should have paid. Consistent with its low inventory and poor sales performance, Dean's participated in little or none of Suzuki's cooperative advertising programs during the 1985 model year, nor did it otherwise specifically support the Suzuki product line through newspaper or billboard advertising. 5/ Dean's advertising efforts were restricted to the expenditure of $2,000 to promote Honda-Kawasaki- Suzuki at three fairs and radio "live remotes," the "sponsorship" of a Suzuki ATV racer, and occasional seasonal displays of a Suzuki product at a local shopping mall. 6/ The dealership agreement executed by Dean's and Suzuki on December 5, 1984, provides in pertinent part: PURPOSE * * * Suzuki expects, and Dealer in executing this agreement acknowledges, that Dealer will actively, aggressively and honestly promote the sale of Suzuki products to retail customers . . . To achieve the purposes set forth above and the mutual obligations of the parties to each other, it is agreed as follows: Dealer's Responsibility Subject to the terms and conditions hereof, Suzuki will sell Suzuki products to Dealer and Dealer will use its best efforts to sell Suzuki products at retail . . . * * * GENERALS CONDITIONS * * * Dealer Sales Responsibility. Dealer will maintain annual sales volume mutually agreed upon each year by Suzuki and Dealer. Dealer will establish a target growth factor which it will strive to achieve through aggressive marketing and promotion of Suzuki products. Dealer agrees that the best method of measuring its market area share is by comparison of its Suzuki sales against the national, state, county and local area Suzuki sales percentages in the motorcycle industry7 as determined by a recognized reporting organization. Dealer also agrees that comparison of its sales to similarly located Suzuki dealers in comparable trade areas is a proper criteria to measure its sales performance. Inventory Responsibility. Dealer must maintain the level of Suzuki motorcycle inventory recommended by Suzuki . . . * * * 2.10 Inventories. Dealer shall main- tain at all times a minimum inventory of Suzuki motorcycles for display, demonstration and sale. A minimum inventory is the quantity, and models, necessary for a sixty- day supply, based on the current Dealer sales plan but subject to availability. * * * 8.1 Advertising Suzuki Products. Dealer acknowledges his responsibility to use advertising programs to promote Suzuki products in his sales area. * * * 8.4 Cooperative Advertising Program. Dealer will participate in Suzuki's cooperative advertising program in accordance with Suzuki's Co-op Policy and advertising bulletins published from time to time. * * * Termination Written Notice. If Dealer does not conduct its business in accordance with the requirements set forth herein, Suzuki may terminate this agreement by giving to Dealer written notice of termination. * * * 9.3 Sixty Days Written Notice. Suzuki may terminate this agreement with sixty (60) days written notice after the occurrence of any of the following events: (1) Failure of the Dealer to maintain the sales volume established for the dealership by mutual agreement of Suzuki and Dealer. * * * (6) Failure to carry an adequate inventory of Suzuki motorcycles and genuine Suzuki parts. The dealership agreement expressly requires that Dean's maintain an annual sales volume mutually agreed upon between the parties. In this case there was no such agreement nor evidence of any attempt to reach such an agreement. Absent such proof, cancellation of Dean's dealership agreement because of "inadequate sales" would be contrary to the dealer agreement and unfair. With respect to inventory, section 2.10 of the agreement provides that Dealer shall maintain at all times a minimum inventory of Suzuki motorcycles for display, demonstration and sale. A minimum inventory is the quantity, and models, necessary for a sixty-day supply, based on the current Dealer sales plan . . . Because it had no "Dealer sales plan," Dean's asserts it is not in violation of the agreement's inventory requirements, and therefore, cancellation would be unfair. Dean's assertion is unpersuasive. While section 2.10 of the dealership agreement does establish a minimum level of inventory based on a "Dealer sales plan," it does not preclude Suzuki from requiring, pursuant to section 2.8, that a dealer maintain a higher or more diverse inventory to promote Suzuki's product line. Absent a showing that the level of inventory recommended by Suzuki was unreasonable, cancellation of the dealership agreement for failure to maintain such an inventory level is not unfair. 7/

Florida Laws (1) 320.641
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