Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Errol H. Powell an Administrative Law J udge of the Division of Administrative Hearings, 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. Said Order Closing File was predicated upon the Respondent’s Notice of Dismissal. Accordingly, it is hereby ORDERED that the Dealer Sales and Service Agreement between Kia Motors America, Inc. and Potamkin Chrysler Plymouth, Inc. d/b/a Potamkin Kia is terminated. Filed July 7, 2010 11:27 AM Division of Administrative Hearings. Sf DONE AND ORDERED this / — day of July, 2010, in Tallahassee, Leon County, Florida. CARL A. FORD, Direce6r 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 Bad day of July 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: Alex Kurkin, Esquire Kurkin Brandes, LLP 4300 Biscayne Boulevard, Suite 300 Miami, Florida 33137 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel M. Kilbride, an 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 Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon Respondent's notice of withdrawal without prejudice of protest. Accordingly, it is hereby ORDERED that the proposed transfer of the assets and franchise of Saturn of St. Petersburg, Inc. to Crown Automotive Man: ent, Inc. is denied. DONE AND ORDERED this hg day of September, 2009, in Tallahassee, Leon County,Florida. - /J / Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed September 15, 2009 3:28 PM Division of Administrative Hearings. J1J:Ji. Filed with the Clerk of the Division of Motor Vehicles this day of September, 2009. NOTICE OF APPEAL RIGHTS inayak, UDell:er&t..Admlniltralor 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: John Barrett Saturn Corporation 100 Renaissance Center Drive MC: 482-A06-C66 Detroit, Michigan 48265-1000 Robert C. Byerts, Esquire Myers & Fuller P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Daniel M. Kilbride Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432-02 Tallahassee, Florida 32399-0504 2 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section 3
Findings Of Fact In November 1986, Sport Products received approval of its application with American Honda to establish a Honda motorcycle, all terrain vehicle (ATV), and motor scooter dealership in Fort Lauderdale, Florida. By application dated December 2, 1986, Sport Products applied to the Department for a motor vehicle dealer license to establish its dealership at 1030 West Sunrise Boulevard, Fort Lauderdale, Florida. The application of Sport Products was protested by Stanmar and Honda West, existing dealers in Broward County. Stanmar's dealership is located near the intersection of Copans and Powerline Roads, Pompano Beach, Florida. As sited, Stanmar is located approximately 9.5 miles due north of the proposed dealership. Honda West's dealership is located at the intersection of University Drive and Stirling Road, Davie, Florida. As sited, Honda West is located a straightline distance of approximately 9 miles southwest, but a substantially greater distance over any available route of travel, from the proposed dealership. 1/ Replacement Dealer Or New Dealer Point? The proposed site for the Sport Product dealership, 1030 West Sunrise Boulevard, Fort Lauderdale, Florida, is the same location previously occupied by another Honda dealer, Satnam Enterprises, Inc. (Satnam). Satnam conducted business at that location from 1979 until late December 1985, when it ceased doing business. Satnam's dealership agreements with American Honda were terminated on January 22, 1986. Upon termination of Satnam's dealership, American Honda immediately began its search for a replacement dealer in Fort Lauderdale. Typically, it takes from six months to one year to advertise open dealership points, evaluate applications, and select a replacement dealer. In this case, the replacement dealer, Sport Products, was located and approved within one year. If licensed, Sport Products would resurrect the third Honda motorcycle, all terrain vehicle (ATV) and motor scooter dealership in Broward County since the demise of Satnam. The issue of American Honda's right to establish a third Honda dealership in Broward County was previously addressed in the matter of Satnam Enterprises, Inc., d/b/a Honda of Fort Lauderdale, et al. v. S.G. Silverman, et al., DOAH Case No. 85- 0836. In that case, Satnam and Honda West protested Stan Silverman's (Stanmar's) proposal to establish a third dealership in Broward County at the intersection of Copans and Powerline Roads, Pompano Beach, Florida. The case proceeded to hearing on September 11 and 12, 1985, and the hearing officer entered his recommended order on November 13, 1985. The Department's final order, which adopted the recommended order in toto, was entered December 30, 1985, and found that Broward County was the relevant market area, community or territory to be considered and that American Honda was inadequately represented in that area by the two existing dealers. Subsequently, Stanmar received its dealer's license. 2/ As appears more fully from the findings of fact which address the adequacy of the existing two dealers representation of Honda in Broward County, infra, there have been no changes in circumstance that would warrant a departure from the final order rendered in Satnam Enterprises, Inc., d/b/a Honda of Fort Lauderdale, et al. v. S.G. Silverman, et al., supra. The need for three dealership points having been established in that case, it is concluded that the subject application is for a replacement dealership and not a new dealership point. Adequacy Of Existing Dealer Representation Broward County is the relevant market area, community or territory under consideration in this case. The proof establishes that American Honda is not being adequately represented in Broward County. This is evidenced by the following: As of November 1986, R.L. Polk & Co. reported that Honda's market share in the entire State of Florida was 51.06 percent, while Honda's market share in Broward County was 26.65 percent. Simply stated, this means that whereas throughout the State of Florida 51 of every 100 motorcycles and motorscooters sold was a Honda vehicle, only 27 of every 100 sold in Broward County was a Honda vehicle. 3/ By comparison, at the time of Case No. 85-0836, supra, which concluded that a third dealership in Broward County was needed, Honda's market share for Broward County was 48.07 percent, whereas its state- wide share was 55.73 percent. The R.L. Polk Reports demonstrate that Honda's market share in Broward County has been steadily erroding over the past five years. Currently, there are 52 Honda dealerships in the State of Florida. Since the population for the entire state was estimated in 1986 to be 11,668,638 people, there is currently one Honda dealer for every 224,397 people in the State of Florida. There are now only two Honda dealers in Broward County, which had an estimated population in 1986 of 1,203,210 people. This equates to a dealership per population ration of one dealership for every 603,605 people. With the re-establishment of the third dealership in Broward County, that ratio would be reduced to one dealership for every 401.070 people in Broward County, whereas the state ratio, calculated with the additional dealership, would then be one dealership for every 220,163 people. Clearly, the dealership per population ratio in Broward County far exceeds the state-wide ratio, and would continue to greatly exceed the state- wide ratio even if Sport Products is licensed. Since 1982, there have been an increasing number of Broward County residents who have gone outside Broward County to purchase their Honda vehicles. In contrast, a significantly lesser number of customers from outside Broward County have traveled into Broward County to purchase their vehicles. In 1984, one Honda vehicle was sold in the State of Florida for every 367 people within the state. In Broward County for 1984, that figure was one vehicle for every 503 people. In 1985, whereas one Honda vehicle was sold throughout the state for every 402 people, that figure in Broward County was one Honda vehicle for every 702 people. In 1986, whereas one Honda vehicle was sold throughout the state for every 516 people, that figure in Broward County had plummeted to one Honda vehicle sold for every 1,133 people. If the ratio of sales to population in Broward County had been the same as the state-wide ratio in 1986, 2,332 American Honda units would have been sold. In fact, the two existing Broward County dealers sold 638 units, while non-Broward County dealers sold 424 units to Broward County residents. Consequently, there was an estimated unmet sales potential of 1,270 units for 1986. Even if sales by Stanmar for 1986 are doubled (in essence, providing Stanmar with 14 months of sales to account for the fact that it started in business in June 1986), the unmet sales potential in Broward County still exceeds 1,000 units, which is more than sufficient to support the proposed dealership and still leave substantial room for sales increases by the two existing dealers. The foregoing sales projection figures are based upon emperical data showing the sales per population of Broward County residents, and is therefore intrinsically credible. Further, such projections have been validated. Hence, the evidence establishes not only the reasonableness of the projections calculated by Honda's expert, Dr. Ford, but also the inadequacy of current representation. The evidence establishing inadequacy of representation was particularly acute with respect to American Honda's motor scooter product line. Whereas in the state and throughout the nation more than 7 out of every 10 motor scooters sold is a Honda vehicle, in Broward County, less than 3 out of every 10 motor scooters sold is a Honda vehicle. This situation is particularly significant in that the motor scooter product line, which was introduced by American Honda in 1983, is very important to American Honda, since it is intended to be marketed to persons outside the traditional motorcycle market. Through such marketing, American Honda should be able to introduce a new segment of the population to its product line, and thereby increase its consumer base. Broward County is a good motor scooter market, as it is blessed with year-round favorable weather, many beach communities, and an emphasis on recreation. In addition, in the Fort Lauderdale area, there are a number of low income households. Low income areas are fertile markets for the motor scooter product line. Notwithstanding these factors favoring the sale of the Honda motor scooter product line, the existing Broward County dealers are either unwilling or unable to adequately represent that product line in this community, particularly in the Fort Lauderdale area. For example, neither of the protesting dealers participated significantly in a recent promotion conducted by American Honda with respect to the lower priced model motor scooter, notwithstanding the fact that a representative from American Honda visited both dealers to explain the program and its benefits, and to recommend that the dealers participate. It appears that Honda West considers itself too far removed from what it considers the primary market for the motor scooter, and Stanmar considers itself unable to compete with the local Yamaha motor scooter dealer. Further, the evidence established that the motor scooter purchaser is more likely to be a localized shopper, such that the physical separation of the two protesting dealers from the greater Fort Lauderdale area is a significant factor contributing to the inability of those dealers adequately to represent American Honda's motor scooter product line. Failure of a dealer to adequately represent a particular product line is tantamount to inadequate representation of the manufacturer or distributor. The population in Broward County has shown tremendous growth, as has Florida, and is projected to continue that growth through at least the year 2020. Significantly, the east central sector of Broward County, in which the proposed dealership would be established, is the most densely populated sector of Broward County, and is likewise projected to increase its population through the year 2020. Substantial growth is also projected for the southwest and southeast sectors, in which Honda West's dealership is located, and in the northwest and northeast sectors, in which Stanmar's dealership is located. Accordingly, it is anticipated that there will be an increasing need for the third Broward County dealership in the future. Broward County is an economically viable market, ranking second among all counties in such things as total and per capita Effective Buying Income, Buying Power Index, and total per capita Retail Sales. Additionally, Broward County has shown substantial growth in these figures through 1986. These are the economic indices typically used to gauge the vitality of a market. The protesting dealers did not dispute the deficient market share for Honda products in Broward County, but attempted to rationalize the disparity by citing to a number of factors. One such factor was certain adverse publicity associated with the previous Fort Lauderdale Honda dealership. Such evidence was, however, unpersuasive. First, protestants offered no proof that a nexus existed between the previous dealer's reputation and the inadequate market share. Second, the proof established that the previous dealer was a Honda- Yamaha-Suzuki dealer and, consequently, any adverse impact would have afflicted those product lines also. Other factors cited by the protesting dealers in an attempt to explain or rationalize Honda's poor market penetration in Broward County included the timing of product releases by the manufacturer, pricing policies, the quantity and models available for dealers to sell, insurance rates, the lack of off-road riding areas, and safety concerns regarding the 3-wheeled ATVs. Such factors are, however, unpersuasive in explaining Honda's lack of penetration into the Broward County market. To the extent such factors existed, they would have affected either all brand vehicles equally, or at least all Honda dealers equally if the factor was peculiar to a specific Honda product. Other evidence presented by the protesting dealers, such as Mr. Silverman's contention that an American Honda representative told him that the Fort Lauderdale dealership would not be replaced, is not only inherently improbable, but was rebutted by credible proof. That proof established that American Honda consistently advised Mr. Silverman that the Fort Lauderdale dealership would be re-established, and that Mr. Silverman's only concern was that it not be located any closer to his dealership than previously sited. Finally, protestants suggest that Honda's poor performance in the Broward market in 1986 can be explained by the fact that following Satnam's closure in December 1985, there was only one Honda dealer, Honda West, for Broward County until Stanmar opened in June 1986. While such dealer turnover and lack of representation could have affected Honda's performance in 1986, it does nothing to explain Honda's consistently poor market penetration in the preceding years. Consequently, protestants' assertion does not detract from the conclusion that American Honda is not adequately represented in Broward County, and more particularly in Fort Lauderdale. "Market share" and "sales penetration" are reliable measures of dealer representation. "Market share" measures a manufacturer's percentage of a given market based upon registration data obtained by R.L. Polk from the various states, and recorded monthly on a county-by-county, state-by-state, and national basis. All terrain vehicle sales are not reflected in R.L. Polk data for the State of Florida since they are not used on the roads and highways and therefore are not registered in the state. "Sales penetration" measures actual unit sales compared with total sales potential using manufacturer warranty data, whether or not the vehicle is registered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles process Sport Products' application for a motor vehicle dealer license, and that the protests of Stanmar, Inc. and International Cycle, Inc. be dismissed. DONE AND ORDERED this 17th day of April, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1987.
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 Respondant’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 Filed June 28, 2013 7:58 AM Division of Administrative Hearings ORDERED that this case is CLOSED. DONE AND ORDERED this B 1 day of June, 2013, in Tallahassee, Leon County, Florida. Buredu 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_Q) day of June, 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: Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Reminton Green Circle Tallahassee, Florida 32308 rsox @dealerlawyer.com C. Everett Boyd, Esquire Nelson, Mullins, Riley And Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 everett.boyd @nelsonmullins.com 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
The Issue Whether the Petitioner, JSL Automotive, Inc. d/b/a Ft. Lauderdale Mitsubishi (JSL), is entitled to relocate its motor vehicle dealership.
Findings Of Fact The Petitioner MMSA is a distributor and licensee of motor vehicles as defined by Section 320.60, Florida Statutes. Compared to other established licensees, MMSA is a relative newcomer to the market in Broward County, Florida. Nevertheless MMSA is emerging as a brand able to effectively compete in the segments in which it offers vehicles. Motor vehicle sales are divided into segments so that new car registrations may be tracked by popularity and dealer performance may be compared as to the vehicles it sells and not with those against which it cannot compete. For example, Mitsubishi does not compete in the truck market as it does not offer a new truck for sale. Therefore, Mitsubishi dealers are not expected to effectively compete in the new truck market. MMSA does, however, offer a vehicle to compete in the following segments: basis small (Mirage), lower middle (Galant), upper middle (Diamante), sporty coupe (Eclipse/Spyder), sports car (3000 GT/Spyder), middle SUV (Montero Sport), and upper middle SUV (Montero). As to all of these segments, MMSA has experienced a significant growth in sales in Broward County, Florida. Historically, there were only two franchised Mitsubishi dealers in Broward County. One of those dealerships is the Petitioner JSL. The other long-time Mitsubishi dealer is located to the north of the Petitioner JSL. That dealer is identified in this record as Lighthouse Point. Principal owners of the Respondent King also own the Lighthouse Point dealership. The Petitioner JSL is a franchised motor vehicle dealer fully authorized to lease, sell, and service the product of MMSA. The Petitioner JSL is located at 200 East Sunrise Boulevard, Fort Lauderdale, Florida. The Petitioner JSL has always been located at its current address. The former owner of the franchise owns the real estate and JSL rents the land and facilities in order to conduct its business. The current owners of the Petitioner JSL purchased the dealership in 1997/1998. The lease with the former owner will expire in the next few years and it is the Petitioners’ goal to relocate the dealership to a more modern, larger facility. If unable to relocate, however, the Petitioner could extend its lease with the former owner until approximately 2012. The condition of the property as well as the terms of the lease were known to the Petitioner JSL at the time it elected to purchase the dealership. Because it does not own the facility, the Petitioner JSL has few incentives to improve the physical appearance of the dealership. Thus far it has done little more than paint the buildings. Both the Petitioner JSL and Lighthouse Point are located in the eastern portion of Broward County. The Respondents King and Seidle are also franchised motor vehicle dealers fully authorized to lease, sell, and service the product of MMSA. These dealerships are located in the western portion of the county. The Respondent King's dealership is located at 4950 North State Road 7, Coconut Creek, Florida. The Respondent Seidle's dealership is located at 5395 South University Drive, Davie, Florida. The population growth in Broward County over the last five years is predominantly in the western portion of the county. The areas west of the Petitioner’s dealership have mushroomed in growth both in households and numbers of drivers. Employment and incomes have also increased. As an emerging brand seeking to capitalize on the growth opportunities in the western portion of the county, the Petitioner MMSA encouraged two existing franchised dealers (the Respondents herein) to open new point dealerships in the western portion of Broward County. Consequently, the Respondent King built and opened a new point dealership in the northwest quadrant of the county. This new dealership opened in 1998 and has thus far proven to be a successful franchise. Despite its investment of more than three million dollars (some of which might be allocated to another dealer) in the acquisition, construction, and opening of the dealership, this Respondent has already established itself as the leading sales franchise in the county. Similarly the Respondent Seidle was offered a new point in the southwest quadrant of the county. It acquired, and with MMSA’s help, constructed, and opened its new franchise dealership in March of 2000. The sales data for this dealer is limited due to its recent opening. Based upon conservative estimates, however, it is expected that this new dealership will prove successful at its location. Like the Respondent King, the Respondent Seidle spent in excess of a million dollars in order to open its new point. Unlike the dealership Mr. Seidle owns in Miami, the new point in Davie is considered state of the art in design and function. It is projected that the Davie dealership will perform more successfully than the Miami Seidle dealership. When both King at Coconut Creek and Seidle at Davie were proposed the Respondents assumed they would be the only Mitsubishi dealers authorized to locate in the western half of the county. The Petitioner MMSA did not make any assurances of that nature. The Petitioner MMSA did not become aware of or consider the Petitioner’s request to relocate until after the other two dealers were either under construction or in the final stages of establishing their dealerships in the western portion of the county. The Petitioner MMSA did not misrepresent the relocation request or hide its intention to support the request from the Respondents. The Petitioner JSL seeks to relocate its dealership to the west to a parcel owned by its principal investor, Mr. Smith. The dealership would occupy a portion of the lot now housing Mr. Smith’s Buick dealership. Additionally, the entire facility would be improved in appearance and amenities. Theoretically, the Petitioner JSL would be more able to compete with the newer facilities also located in the western portion of the county. The Petitioner’s current location is nearer to the downtown area of Fort Lauderdale. It is located in a marginal neighborhood with crime and undesirable areas in close proximity. The physical plant itself is dated in appearance and opportunities. The Petitioner JSL has not spent any substantial amount of funds to improve the physical plant, its security, or to acquire off-site storage or support facilities. The proposed relocation site is also in a crime- stricken area however it is west of the predominant crime area. The Petitioner JSL is desirous of improving the proposed site. One of JSL's primary investors would also benefit from such improvements. The Buick dealership owned by Mr. Smith would continue to operate at the property but would have the benefit of the improved facilities. All four Mitsubishi dealers have to shuttle customers to work if service work is to be performed during the day. The driving times for such shuttles would increase depending on the work location of the customers. Persons working in the downtown Fort Lauderdale area would most conveniently utilize the Petitioner’s current location for service. All four dealerships have facilities that meet or exceed the Mitsubishi standards for sales and service volumes. The proposed relocation site would also comply with the Mitsubishi guidelines for sales and service. On August 20, 1999, the Department of Highway Safety and Motor Vehicles published a notice in the Florida Administrative Weekly indicating MMSA's intention to allow the Petitioner JSL to relocate its dealership from its current address to 2300 North State Road 7, Fort Lauderdale, Florida. The notice of the proposed relocation correctly specified that the dealer operator of the relocated Mitsubishi dealership to be Tak Liu a/k/a Ted Johnson. Mr. Johnson is the current dealer operator and is responsible for the day-to-day operations of the Petitioner JSL. Mr. Johnson assumed his role with the company when it was purchased from the former owner of the dealership, a Mr. Holman. Originally, the principal investors of the Petitioner JSL were Ted Johnson, Philip P. Smith, and Jon F. Lutter. Mr. Lutter subsequently sold his interest in the Petitioner JSL to Michael Dayhoff. Regardless of the accuracy of the notice published in the Florida Administrative Weekly regarding the ownership of the Petitioner JSL, such notice correctly identified the dealer seeking to relocate and accurately described its current and proposed locations. Thus all dealers presumably affected by the proposed relocation were put on adequate notice of the proposal submitted by the Petitioners. The Respondent King's dealership is approximately 13 miles in straight line distance from the existing location of the Petitioner JSL. If relocated to the proposed site, JSL would be approximately 11.5 miles in straight line distance from the Respondent King. In terms of driving time, the Respondent King's dealership is approximately 26 minutes in driving time from the Petitioner's existing location. Comparatively the Respondent King's location is approximately 20 minutes in driving time from the Petitioner's proposed location. As for the Respondent Seidle, the Petitioner's current location is approximately 11 miles in straight line distance from the existing JSL dealership. If relocated to the proposed site, the Respondent Seidle would be approximately 9 miles in distance from the Petitioner JSL. If JSL were allowed to relocate, the driving time to the Respondent Seidle's dealership would not significantly change. For purposes of this case, it is determined that the community or territory (comm/terr) served by these dealers is Broward County, Florida. The growth in this market will continue in the foreseeable future as the growths in population, employment, and industry new vehicle registrations have demonstrated. Moreover, the current and future demographic factors indicate that Mitsubishi should be adequately represented by four dealers in this comm/terr. As presently configured the Mitsubishi dealers in the comm/terr are on average 5.2 miles from the consumers in this market area. If allowed to relocate, the distance for consumers would be reduced to 4.4 miles. Either of these distances would allow Mitsubishi to effectively compete with like segment products. The traffic patterns along the major north/south and east/west corridors in Broward County make all existing dealers easily accessible either north to south or east to west. There are no barriers to prevent customers from conveniently accessing dealers to the east, west, south, or north. The relocation of the Petitioner JSL to the proposed site would not dramatically improve this accessibility except for those customers who reside in the western portions of the county. And while the relocation of the JSL dealership to the proposed site would increase the convenience to the western customers, the Mitsubishi customers to the east who were previously served by this dealer would be required to travel a greater distance for sales or service. With the opening and establishment of Seidle in Davie, Mitsubishi customers to the southwest will also have that point for sales and service convenience. The proposed site does not constitute an identifiable plot within the comm/terr to support the relocation of the existing dealer. The newly opened Seidle together with King should adequately provide sales and service to the western portion of this market. Any inconvenience in sales or service previously experienced by the customers in the western portion of the county will be quickly cured. With the expansion of the two new dealers in the western portion of the comm/terr, the Petitioner MMSA should experience increased visibility and sales. The relocation of the Petitioner JSL would diminish the expected success of the Respondents in this western portion of the comm/terr. It is too early to determine whether the Respondent Seidle will be as successful as the Respondent King. Given the investments of both of these dealers, however, it is reasonable to afford them more time to demonstrate the strengths of their abilities to market to the western portion of the comm/terr. Both dealers should be able to meet their obligations to the Petitioner MMSA. Given the demonstrated success of the Respondent King, and the projections for this comm/terr, it is reasonably expected market penetration of the existing dealers as presently located will adequately serve the comm/terr. In this case the Petitioner MMSA has encouraged the existing dealers by offering the existing dealers the opportunities to establish new points in the west, by recognizing the opportunity for sales growth in this comm/terr, and by assuring an adequate number of dealers for this market. The relocation of the Petitioner's dealership will not greatly improve the network of Mitsubishi dealers in Broward County. The Petitioner MMSA has not attempted to coerce the existing dealers into consenting to the proposed relocation of the Petitioner JSL. All existing Mitsubishi dealers are in substantial compliance with their dealer agreements. Without the proposed relocation there is adequate interbrand and intrabrand competition in the comm/terr. Without the proposed relocation there is adequate customer convenience in terms of sales and service. Without sufficient actual data from the sales for the Respondent Seidle, it is impossible to determine whether the relocation is warranted and justified based on economic and market conditions pertinent to dealers competing in the comm/terr. The reasonable projected sales suggest the current dealer configuration to be sufficient and adequate as contemplated by the statute. If future population or household growths exceed the levels projected or if actual sales demonstrate a stronger market than projected, additional points in the western portion of the county may be warranted. The actual volumes of registrations by the existing dealers suggest that the Petitioner JSL could perform stronger without encroaching on the sales reasonably expected to be made by the Respondents. With regard to the Petitioners' assertions that the current neighborhood limits the JSL's ability to do business, it is determined that other motor vehicle dealerships in proximity to the Petitioner's store have remained in business in the neighborhood. Those dealers (Lincoln-Mercury, Rolls Royce, Bentley, Oldsmobile, Saturn, Isuzu, Ford, Jaguar, and Honda) have not relocated due to crime or other neighborhood problems. It is further determined that the data relied upon by Petitioners to calculate a shortfall in the comm/terr failed to recognize that the fourth dealer, the Respondent Seidle, was not in business until March 2000. The addition of the fourth point will relieve an deficiency in performance for the comm/terr.
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 denying the request to relocate the motor vehicle dealership. DONE AND ENTERED this 11th day of September, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 11th day of September, 2000. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 John Forehand, Esquire Walter E. Forehand, Esquire Myers, Forehand & Fuller, P.A. 402 North Office Plaza Drive Tallahassee, Florida 32301 Kieran P. Fallon, P.A. 80 Southwest 80th Street, Suite 2804 Miami, Florida 33130 Dean Bunch, Esquire Sutherland, Asbil & Brennan, L.L.P. 2282 Killearn Center Boulevard Tallahassee, Florida 32308-3561 James Gregory Humphries, Esquire Shutts & Bowen 20 North Orange Avenue, Suite 1000 Orlando, Florida 32801-4626 Enoch John Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 William T. Joyce, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0600
The Issue 1. Whether the applications which are the subjects of DOAH Case Nos. 96-4970 and 96-4971 should be granted. 2a. Whether the respondents in DOAH Case No. 96-5525 committed the violations alleged in the Amended Administrative Complaint issued in that case. 2b. If so, what sanctions should be imposed.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency, which, among other things issues motor vehicle retail installment seller (MVRIS) licenses. Jack Bowshier Buick-Pontiac-GMC Trucks, Inc. (Bowshier Buick) is a corporation organized under the laws of the State of Florida. Bowshier Buick formerly operated an automobile dealership at 2445 Southeast Federal Highway in Stuart, Florida, and held a MVRIS license issued by the Department. At all times material to the instant cases, Jack A. Bowshier, Sr., in his capacity as owner/director/president, and Jack D. Bowshier, Jr., in his capacity as general manager/director, exercised control over the policies and practices of Bowshier Buick. On or about October 25, 1995, the Department began an investigation into the business affairs of Bowshier Buick. The Department's investigation revealed, among other things, that Bowshier Buick engaged in the practice of reselling "trade-ins" without timely satisfying the existing liens on the vehicles. Such practice, which was the product of cash flow problems the dealership was experiencing, adversely affected the credit ratings of those who had "traded-in" these vehicles and prevented the ultimate purchasers of the vehicles from timely obtaining new certificates of title. In the "deal jackets" that the dealership created to place the paperwork relating to the transactions involving these "traded-in" vehicles, the Department's investigators found copies of checks which were made payable to those who held the liens on these "trade-in" vehicles. The investigators subsequently discovered, however, that these checks had not been timely sent to the lienholders, but instead had been placed in the desk drawer of the dealership's office manager, Christine Casale. On several occasions, when customers who had "traded-in" vehicles complained to the dealership that the liens on their vehicles had not been satisfied, they were told by Casale that the checks to satisfy the liens had been mailed to the lienholders, when in fact they had not been. Such misrepresentations were made in an effort to mislead and deceive these complaining customers. In making these fraudulent misrepresentations, Casale acted pursuant to instructions that had been given to her by Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr. On November 3, 1995, the Department issued an Emergency Immediate Temporary Final Order to Cease and Desist and Suspension of [Bowshier Buick's] Motor Vehicle Retail Installment Seller's License (Emergency Order) in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195. Bowshier Buick, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr., were named as respondents in the Emergency Order. The Department alleged in the Emergency Order that they had committed the following violations of the law for which they are subject to the penalties as set forth in Section 520.995, Florida Statutes: Violation of Section 520.995(1)(b), Florida Statutes, in that they have perpetrated fraud, misrepresentation, deceit, or gross negligence in retail installment transactions, regardless of reliance by or damage to the buyer. Violation of Section 520.995(1)(b), Florida Statutes, in that they have committed criminal conduct in the course of their Motor Vehicle Retail Installment Sellers business. Violation of Section 520.995(3)(d), Florida Statutes, in that they have demonstrated a lack of financial responsibility. On November 13, 1995, an Administrative Complaint for Imposition of Sanctions was filed against Bowshier Buick, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr. Jack A. Bowshier, Sr., subsequently engaged in negotiations with William Chamberlain, the owner and president of WAFC Holdings, Inc. (WAFC) concerning the sale of the assets of Bowshier Buick to WAFC in return for, among other things, the assets of two Chamberlain-owned corporations, South Florida Auto Exchange, Inc., d/b/a Palm Beach Motors, and Stuart Motors, Inc., d/b/a Stuart Motors, that were in the business of selling pre- owned motor vehicles in the West Palm Beach and Stuart areas, respectively. On December 5, 1995, Jack A. Bowshier, Sr., and Chamberlain signed paperwork (Sale/Purchase Agreements) in which their corporations agreed to consummate such a transaction. On that same date, they also, on behalf of their corporations, executed Interim Management Agreements, pursuant to which WAFC took over the management of Bowshier Buick's dealership at 2445 Southeast Federal Highway in Stuart and Bowshier Buick assumed responsibility for the management of Palm Beach Motors and Stuart Motors, effective December 5, 1995. Later that month, WPAS, Inc. (WPAS) and DAB, Inc. (DAB) were formed. At all times material to the instant case, Jack A. Bowshier, Sr., has been the sole owner, president and director of WPAS, and, as such, has directed the operations of the corporation. At all times material to the instant case, WPAS maintained its principal place of business at 2815 Okeechobee Boulevard in West Palm Beach, the location of Palm Beach Motors. At all times material to the instant case, Jack D. Bowshier, Jr., was the general manager of Palm Beach Motors. At all times material to the instant case, Jack A. Bowshier, Sr., has been the sole owner, president and director of DAB, and, as such, has directed the operations of the corporation At all times material to the instant case, DAB has maintained its principal place of business at 2695 Southeast Federal Highway in Stuart, the location of Stuart Motors. At all times material to the instant case, Todd Bowshier, has been the general manager of Stuart Motors. A Stipulation for Settlement and Consent to Final Order in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 (Stipulation) was executed by Jack A. Bowshier, Sr., on behalf of Bowshier Buick and on his own behalf, and by Jack D. Bowshier, Jr., on January 31, 1996, and by Thomas Stouffer, the Regional Director of the Department's Southeast Florida Regional Office, on behalf of the Department, on February 2, 1996. It provided as follows: The State of Florida, Department of Banking and Finance, Division of Finance (hereinafter "Department"), and Respondents Jack Bowshier Buick-Pontiac-GMC Trucks, Inc. (hereinafter "Bowshier Buick"), Jack A. Bowshier (hereinafter "JA Bowshier"), and Jack D. Bowshier (hereinafter "JD Bowshier"), in consideration of the mutual promises herein contained and other good and valuable consideration hereby agree to enter into this Stipulation for Settlement and Consent to Final Order as follows: At all times material hereto Bowshier Buick has been a Florida corporation with its principal place of business located at 2445 SE Federal Highway, Stuart, FL 34994. On or about December 25, 1988 Bowshier Buick was issued a Motor Vehicle Retail Installment Seller's License by the Department, which remains active to date. At all times material hereto JA Bowshier has been a Director, owner and control person of Bowshier Buick. In these capacities JA Bowshier creates, controls, formulates, directs and personally participates in the acts, practices and affairs of Bowshier Buick. At all times material hereto JD Bowshier has been a Director and General Manager of Bowshier Buick. In these capacities JD Bowshier creates, controls, formulates, directs and personally participates in the acts, practices and affairs of Bowshier Buick. On or about October 25, 1995, the Department received information that it believed indicated that Bowshier Buick had accepted motor vehicles as "trade-ins" and resold these vehicles without first satisfying their existing liens. The Department was concerned that purchasers of these motor vehicles could not be issued Certificates of Title. As a result of this information, Department examiners/investigators, on three occasions, visited Bowshier Buick's principal office pursuant to Section 520.996, Florida Statutes. They concluded that Bowshier Buick was engaging in acts and/or practices constituting violations of Chapter 520, Florida Statutes. On November 3, 1995, the Department filed an Emergency Immediate Temporary Final Order to Cease and Desist and Suspension of Motor Vehicle Retail Installment Seller's License (hereinafter "Emergency Order") which was followed, on November 13, 1995, with an Administrative Complaint for Imposition of Sanctions and Notice of Rights (hereinafter "Complaint"). Respondents agree that they have been duly served with both the Emergency Order and Complaint and that the Department has jurisdiction over them and this case. The Department agrees that Respondents timely filed their Answer, Affirmative Defenses and Petition for Formal Proceedings in response to the Complaint. The Department herein makes the following findings of fact, upon which the penalties imposed are based, but which findings Respondents neither admit nor deny: There were approximately thirty trade-ins taken by Bowshier Buick for which the dealership had not satisfied existing liens. Some of these vehicles were resold without first satisfying their existing liens. Some customers who traded in their motor vehicles suffered adverse credit ratings because of the failure of Bowshier Buick to pay off the existing lienholders. Bowshier Buick was experiencing severe cash flow problems. For the month of September, Bowshier Buick incurred a monthly bank charge of $5,000 for dealership bank overdrafts. A total estimated amount of $125,000 in outstanding insufficient funds checks was evident as of November, 1995. Bowshier Buick did not remit premiums collected to the insurance company for credit life, accident & health insurance policies which had been purchased by Bowshier Buick customers. They had not forwarded said premiums for policies purchased by customers since January, 1995. Bowshier Buick records were misleading in that copies of checks made payable to lienholders and in the amount due to satisfy liens were contained within the files for months, when the checks were never delivered and/or funds were never disbursed to the payee. Respondents maintain that subsequent to the Department's filing of its Emergency Order, Bowshier Buick has cooperated with the Department to resolve the lien, title, and premium problems. In an effort to avoid litigation and costs associated therewith, the Department and Respondents now voluntarily agree to enter into this Stipulation for Settlement and Consent to Final Order (hereinafter "Stipulation") addressing the violations raised by the Emergency Order and the Complaint. The Respondents and the Department agree as follows: Respondents will bring and keep all books and records up to date and maintain them accurately and in compliance with the law. Respondents will maintain and keep current all forms required by the automobile dealer's manual, Department of Motor Vehicles and the Department, including the title log. Respondents will keep all title work and registrations current and in compliance with the law. Respondents will write any and all insurance policies and remit all premiums in compliance with the law, including but not limited to credit life, accident and health insurance. Respondents will dismiss with prejudice any and all actions pending in Circuit Court and the District Court of Appeal, not file any further actions in any court which in any fashion or respect arise or tend to arise out of the facts presented by the Emergency Order or the Complaint (see paragraph 6 herein) and, indemnify and hold the Department harmless if such further actions are filed. Respondents shall, within 30 days from the date of execution of this stipulation, reimburse any and all customers who made payment(s) on past due liens which they did not owe. Within 45 days, verifiable proof of reimbursement shall be provided to the Department. Respondent shall, within 90 days from the date of execution of this stipulation, assist any and all customers who have been affected by Respondents untimely payment of liens in repairing their credit. Their assistance shall include, but shall not be limited to, sending letters to lenders wherein Respondents assume all responsibility for the late lien payments. Within 105 days, verifiable proof of such assistance shall be provided to the Department. Respondents shall, within 30 days from the date of execution of this stipulation, reimburse any and all customers due refunds on credit life, accident and health insurance. Within 45 days, verifiable proof of such assistance shall be provided to the Department. Respondents shall, immediately upon execution of this stipulation, pay off any and all outstanding past due customer liens, as well as all liens that have been improperly levied upon customers. Upon repayment, verifiable proof thereof shall be provided to the Department. Respondents shall operate the dealership, at all times in compliance with the law. Respondents shall pay to the Department by cashiers check, within 30 days of the date of execution of this stipulation, $5,000, representing costs of the Department's examination/investigation in this case. Respondents agree to sell Bowshier Buick to WAFC Holdings, Inc., its agents, nominees or assigns. If the sale is cancelled or not consummated within 6 months from the date of the Final Order herein, for any reason: 1.) Respondents will immediately notify the Department, Diane Leeds, Esq., in writing via certified mail, return receipt requested, of that fact. 2.) Respondents' Departmental license(s) shall be placed upon and remain on probation for a period of three (3) years, commencing on the date the sale is cancelled or not consummated. For the duration of the probationary period, Respondents agree to: Provide the Department, on a monthly basis, prior to the 10th day of each month, a copy of the dealership "finance log" attached hereto and made a part hereof as Exhibit "A." Allow the Department to make unannounced visits to the dealership, as frequently as the Department deems necessary, to assure that Respondents are operating in compliance with the law. Prior to the termination of the probationary period the dealership shall have, in reserve, a minimum of three (3) weeks supply of operating capital, to be computed based upon the operating expenses of the dealership at that time, and provide verifiable proof thereof to the Department. The Final Order incorporating the terms of this stipulation constitutes final agency action by the Department for which the Department may seek enforcement pursuant to the provisions of Chapters 120 and 520, Florida Statutes, and Respondents knowingly and voluntarily agree to waive any right to: 1. A formal hearing; 2. To contest the finality of the Final Order; 3. To contest the validity of any term, condition, obligation or duty created hereby; 4. To separately stated Findings of Fact and Conclusions of Law; and 5. To administrative or judicial review hereof. Respondents acknowledge, concur and stipulate that their failure to comply with any of the terms, obligations and conditions of this stipulation and the Final Order adopting it, shall result in their being deemed to be in violation of a written agreement and Final Order issued pursuant to the provisions of Chapters 120 and 520, Florida Statutes, and Respondents stipulate and agree to the issuance of an emergency suspension of their license(s) and a cease and desist order. Respondents waive all rights to prior notice and hearing before entry of such order. However, nothing herein limits Respondents' right to contest any finding or determination made by the Department concerning their alleged failure to comply with any of the terms and provisions of this stipulation or of the Final Order. Respondents waive and release the Department and its agents, representatives, and employees from any and all causes of action they may have including without limitations, any right to attorney fees arising out of this proceeding; libel; slander; violation of a constitutionally protected right; intentional tortious interference with advantageous contractual relationship and the like; arising prior to or out of the filing of the Complaint, Emergency Order, the execution of the stipulation and entry of the Final Order. The Department agrees to accept this release without acknowledging, and expressly denies, that any such causes of action may exist. Respondents further agree that nothing contained herein shall be construed to waive or restrict the Department's right to initiate any legal action based upon facts or information which come to the Department's attention subsequent to the execution of this stipulation and the Department further agrees that nothing contained herein shall be construed to waive or restrict the Respondents' rights to defend any subsequent legal action. The Department and Respondents each agree to bear their own costs and attorneys' fees incurred in connection with this proceeding and entry of the Final Order, except as stated in paragraph 11k. herein. The Department and Respondents represent that the officer(s) executing this stipulation are authorized to act on behalf of the corporations and agency for settlement purposes. The Department and Respondents acknowledge that they have read this stipulation and fully understand the rights, obligations, terms, conditions, duties, and responsibilities with respect to its contents. Execution of this stipulation by the Department shall not be construed as a final acceptance of its terms and conditions absent entry of a Final Order by the Comptroller adopting same, however, the existing Emergency Order shall be null and void immediately upon entry of the Final Order by the Comptroller. The undersigned parties hereby acknowledge and agree to the terms and conditions of the foregoing stipulation by written consent on the last date executed below, subject to final approval by the Comptroller. On February 16, 1996, a Final Order was issued in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195 adopting the parties' Stipulation and requiring the parties to comply with the Stipulation's terms and conditions. The purchases of the assets of Bowshier Buick, South Florida Auto Exchange, Inc., and Stuart Motors, Inc., were finalized in March of 1996. On March 18, 1996, WPAS filed with the Department an Application for Motor Vehicle Retail Installment Seller License (WPAS's Application). In its Application, WPAS indicated that it was doing business as Palm Beach Motors at 2815 Okeechobee Boulevard in West Palm Beach. In response to Question 10 on the application form, which read as follows, WPAS answered "yes" and appended to its completed Application a copy of the Stipulation filed in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F- 11/95, and 4287b-F-1195: Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against? Yes No (If yes, list such persons, give details, and provide a copy of the allegations and documentation of the final disposition of the case.) WPAS's Application was signed by Jack A. Bowshier, Sr. On April 8, 1996, DAB filed with the Department an Application for Motor Vehicle Retail Installment Seller License (DAB's Application). In its Application, which was signed by Jack A. Bowshier, Sr., DAB indicated that it was doing business as Stuart Motors at 2695 Southeast Federal Highway in Stuart. In response to Question 10 on the application form, DAB mistakenly answered "no." Neither a copy of the Stipulation filed in Administrative Proceeding Nos. 4287-F-11/95, 4287a-F-11/95, and 4287b-F-1195, nor a copy of the Final Order entered in these proceedings, was appended to DAB's completed Application. The Department granted DAB's Application and issued DAB a MVRIS license, effective April 11, 1996. On May 1, 1996, Jack A. Bowshier, Sr., sent the following letter to the Department: I am voluntarily surrendering my license from the Department of Banking and Finance issued to DAB, Inc., D/B/A Stuart Motors to you today due to the fact that we have made an honest mistake in the application for the license. I apologize for this mistake. I am reapplying for the license for this corporation. I ask that you please reconsider your position. On that same day, May 1, 1996, Jack A. Bowshier, Sr., on behalf of WPAS, and William Chamberlain, on behalf of South Florida Auto Exchange, Inc., executed an agreement (WPAS Use of License Agreement), which provided as follows: AGREEMENT made this 1st day of May, 1996 by and between SOUTH FLORIDA AUTO EXCHANGE, INC., DBA PALM BEACH MOTORS, INC., a Florida corporation ("PBM") AND WPAS, INC., a Florida corporation ("Operator"). WHEREAS, PBM and Operator, or Operator's affiliate, entered into an agreement for sale and purchase of assets dated December 5, 1995 (the "Asset Purchase Agreement") for the purchase and sale of certain assets of PBM located at 2815 Okeechobee Blvd., West Palm Beach, Florida (the "Dealership"); and WHEREAS, PBM and Operator closed on the sale and purchase on or about the 19th day of March, 1996; and WHEREAS, Operator has submitted an application (the "Application") to the State of Florida, Comptroller's Office, Department of Banking (the "Department") for a license to originate financing in connection with the sale of automobiles at the Dealership, which Application remains pending with the Department; and WHEREAS, Operator has not yet received a license from the Department pursuant to the Application; and WHEREAS, Operator has requested PBM to allow Operator to continue to use PBM's license (the "PBM License") from the Department at the Dealership pending the Department's action on Operator's Application; and WHEREAS, PBM, after obtaining the verbal approval of the Department, has agreed to allow Operator to utilize PBM['s] License at the Dealership on a temporary basis. NOW, THEREFORE, for and in consideration of Ten dollars ($10.00) paid by Operator to PBM, as well as other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by PBM, the parties agree as follows: The foregoing recitals are true and correct and incorporated herein by reference. PBM hereby authorizes Operator to originate finance paper under the PBM license at the Dealership until the earlier of: PBM notice to Operator of the revocation of such authority, which notice may be given [by] PBM, in PBM's sole and absolute discretion, at any time upon three (3) days prior notice to Operator, upon the Department's disposition of Operator's application, whether such disposition is a granting of a license or the denial of a license, any demand by the Department that Operator cease the use of the PBM license, upon the infraction of any rule or regulation by Operator applicable to the PBM License. Operator agrees to utilize the PBM License only in strict compliance of all applicable rules and regulations, including, but not limited to the rules and regulations of the Department. Operator does hereby agree to indemnify and hold PBM harmless against any claim arising out of the Dealership or Operator's use of the PBM License. This Agreement contains the entire understanding of the parties and may not be changed or modified orally, but only by written instrument signed by the parties hereto. Any notice required or permitted to be given under this Agreement shall be in writing, delivered by certified mail, return receipt requested, or by a national overnight courier service, such as Federal Express, and mailed to the parties at the following address: PBM: c/o Stuart Buick Pontiac GMC 2445 S.E. Federal Highway Stuart, Florida 34994 Operator: 2815 Okeechobee Blvd. West Palm Beach, Florida 33409 This agreement shall be binding upon the parties, their successors and assigns. This Agreement shall be governed by the laws of the State of Florida. In the event litigation is instituted in connection with the enforcement of the terms of this Agreement, the prevailing party shall be entitled to an award of costs and attorneys fees, including attorneys fees and costs on appeal. The "PBM License" referenced in the WPAS Use of License Agreement had an "expiration date" of December 31, 1996. An agreement between DAB and Stuart Motors, Inc. (DAB Use of License Agreement) containing provisions substantially identical to those in the WPAS Use of License Agreement was executed by Jack A. Bowshier, Sr. (on behalf of DAB) and Chamberlain (on behalf of Stuart Motors, Inc.) also on May 1, 1996. The MVRIS license which was the subject of the DAB Use of License Agreement, like the "PBM License," had an expiration date of December 31, 1996. The WPAS and DAB Use of License Agreements were both drafted by Chamberlain's attorney, Michael Botos. Before drafting these agreements, Botos had spoken to Diane Leeds, an attorney with the Department. Botos erroneously believed that Leeds, acting on behalf of the Department, had given the "verbal approval" referenced in the agreements. On May 6, 1996, Jack A. Bowshier, Sr., filed a corrected Application for Motor Vehicle Retail Installment Seller License on behalf of DAB (DAB's Second Application). Department investigators visited Palm Beach Motors on July 19, 1996. They discovered, from an examination of WPAS's records, that WPAS (acting through Jack D. Bowshier, Jr., the general manager of Palm Beach Motors) had been involved in retail installment transactions with retail buyers of its vehicles, notwithstanding that it did not have a license from the Department authorizing it to engage in such activity. Ten retail installment contracts (signed by Jack D. Bowshier, Jr., on behalf of WPAS) were found and reviewed. In four of these ten retail installment transactions, the buyer was charged a simple interest rate in excess of 18 percent per annum. By letter mailed on July 19, 1996, the Department notified WPAS of its intention to deny WPAS's Application for a Motor Vehicle Installment Seller License. In its notice, the Department advised that its proposed denial was based upon, among other things, WPAS's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes. Department investigators visited Stuart Motors on July 22, 1996. They discovered, from an examination of DAB's records, that DAB (acting through Todd Bowshier, the general manager of Stuart Motors) had been involved in retail installment transactions with retail buyers of its vehicles, notwithstanding that it did not have a license from the Department authorizing it to engage in such activity. Ten retail installment contracts (signed by Todd Bowshier on behalf of DAB) were found and reviewed. In all of these ten retail installment transactions, the buyer was charged a simple interest rate of 19.95 percent per annum. On or about July 26, 1996, Jack A. Bowshier, Sr., met with Department representatives, including Diane Leeds, to discuss the Department's proposed action. At the meeting, Jack A. Bowshier, Sr., was told that "he could not finance without a license at that time under anybody's license." Nonetheless, following the meeting, WPAS (doing business as Palm Beach Motors) and DAB (doing business as Stuart Motors), relying on the legal advice of their attorney (and acting through their general managers), continued to operate as motor vehicle retail installment sellers without having MVRIS licenses of their own (as they had done since May of that year, following the execution of the WPAS and DAB Use of License Agreements). In addition, they continued to knowingly charge buyers simple interest rates in excess of 18 percent per annum. Jack A. Bowshier, Sr., was at all material times aware of these activities, which continued at Palm Beach Motors until approximately September or October of 1996, when the used car operation was sold,1 and continued at Stuart Motors until early 1997. By letter mailed on October 1, 1996, the Department notified DAB of its intention to deny DAB's Second Application for a Motor Vehicle Installment Seller License. In its notice, the Department advised that its proposed denial was based upon, among other things, DAB's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes. Department investigators returned to Stuart Motors on October 6, 1996, to examine DAB's records. Their examination revealed nine retail installment contracts that DAB had entered into since the investigators' July 22, 1996, visit. These contracts were signed by Todd Bowshier on behalf of DAB. In all but one of these retail installment transactions, the buyer was charged a simple interest rate of more than 18 percent per annum. In late January of 1997, personnel from the Office of the State Attorney, 19th Judicial Circuit, assisted by Department personnel, conducted a search (pursuant to a search warrant) of the records maintained by DAB at Stuart Motors. Sixty-four retail installment contracts (signed by Todd Bowshier on behalf of DAB) that DAB had entered into from August 10, 1996, to January 25, 1997, (including eight of the nine contracts that Department investigators had discovered during their October 6, 1996, visit to Stuart Motors) were seized. Thirty-seven of these 64 retail installment transactions took place from August 10, 1996, to October 16, 1996. In all but one of these 37 transactions, the buyer was charged a simple interest rate of more than 18 percent per annum. In all of the post-October 16, 1996, transactions (including eight which occurred after the expiration of the MVRIS license which was the subject of the DAB Use of License Agreement), the buyer was charged a simple interest rate of 17.99 percent. It was not until the Bowshiers received a copy of the following letter, dated February 13, 1997, the Office of the State Attorney, 19th Judicial Circuit, sent to the Department regarding the "Jack Bowshier investigation" that DAB stopped engaging in the business of a motor vehicle retail installment seller: This letter is in response to your investigation of DAB, Inc. d/b/a Stuart Motors etc. As you are aware I have spent the last three weeks reviewing the events between your Department, which began on March 18, 1996, and the above named suspect. It is apparent from the outset of your investigation that Mr. Bowshier and associates have done everything in their power to continue operating a business and finance automobiles without the appropriate Retail Installment Sellers license. However, it is my opinion that I would have insurmountable proof problems in a criminal prosecution based on the events that have occurred to date. Mr. Bowshier maintains that he can continue writing installment loan contracts because the validity of the denial of his application continues to be the subject of litigation. Mr. Bowshier continues to suggest that this is his position at the advi[c]e of his attorney, Mr. Ronald LaFace. After speaking with Mr. LaFace regarding the above I can see why the suspect would reasonably rely on his attorney's advice. Even to me, Mr. LaFace continues to maintain the position that the denial of the licensure application is "nonfinal." While we know this position is irrelevant to both the Department of Banking and Finance, and the criminal prosecution, it still creates the appearance of a defense which would remove the "criminal intent" aspect of our case. I have an ethical obligation to only prosecute cases in which I believe, based on my training and experience, there is a reasonable chance for a conviction at trial. Because this case has become so diluted in "my attorney told me" and "my understanding was . . .," I cannot ethically go forward with a criminal prosecution and still meet my burden of proof at trial. However, I understand the frustration in wanting to go forward in a case of this nature. With that in mind this letter will serve two purposes. While my declination to prosecute this case up through the date of this letter is final, it is not absolute. This letter will be sent to both Mr. Bowshier (and associates) and Mr. Ronald LaFace. In doing so, it will serve a very particular purpose. It will inform the above (including Mr. LaFace), that I will not prosecute the criminal acts that Mr. Bowshier and associates have committed to date because of the above explained proof problems. However, I will prosecute from this date forward any and all financing that occur[s] by the suspect and his associates without a license. I should make it perfectly clear to Mr. Bowshier and his attorney that it does not matter what their position is regarding the "appeal" of the denial of license, they cannot finance automobiles. Mr. Bowshier and associates should also know that the advice of their attorney to continue writing contracts during the pendency of the licensure "appeal" is wrong. If the suspect and his associates continue to write contracts, it will constitute a criminal act despite the advice of his attorney. I will prosecute Mr. Bowshier and associates if he continues to write contracts without the appropriate licenses pr[e]scribe[d] by law. The "appeal" referenced in the letter was taken after the Department, by letter mailed October 1, 1996, advised DAB of its intention to deny DAB's Application for a Motor Vehicle Installment Seller License. In its letter, the Department advised that its proposed denial was based upon, among other things, DAB's engaging in the business of a motor vehicle retail installment seller without a license, in violation of Section 520.03(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order (1) finding the Bowshiers guilty of the violations alleged in the Amended Administrative Complaint; (2) directing the Bowshiers to cease and desist from committing such violations; (3) imposing jointly and severally upon WPAS, Jack A. Bowshier, Sr., and Jack D. Bowshier, Jr., an administrative fine in the amount of $7,000.00; (4) imposing jointly and severally upon DAB, Jack A. Bowshier, Sr., and Todd Bowshier an administrative fine in the amount of $61,500.00; and (5) denying WPAS's and DAB's applications for licensure. DONE AND ENTERED this 28th day of May, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1998.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, 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 Order Relinquishing Jurisdiction and Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent's notice of withdrawal. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Jealse Scooters, Inc., be granted a license for the sale of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 572 East Osceola Parkway, Kissimmee, (Osceola County), Florida 34744, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed January 7, 2010 10:39 AM Division of Administrative Hearings. DONE AND ORDERED this ;(/day of January, 2010 in Tallahassee, Leon County, Florida. or Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divis)On of Motor Vehicles this Jtf!1._ day of January, 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: Fabio Jealse Jealse Scooters, Inc. 572 East Osceola Parkway Kissimmee, Florida 34774 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Jeff Lampe Kissimmee Motorsports, Inc. 2881 North John Young Parkway Kissimmee, Florida 34741 William F. Quattlebaum Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432-02 Tallahassee, Florida 32399-0504 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
