The Issue Whether the application of Kawasaki Motors Corporation USA (Kawasaki Motors) to establish an additional franchised dealership for the sale of Kawasaki motorcycles to be located at Action Jet Sports, Inc. (Action Jet), 2705 1st Street, Bradenton, Manatee County, Florida, should be granted.
Findings Of Fact Based on the evidence presented at the hearing and the record as a whole, the following findings of fact are made: Petitioner Kawasaki Motors, is a licensed distributor of motor vehicles in Florida and is authorized to sell motor vehicles to its dealers in Florida. Petitioner Action Jet is a licensed motor vehicle dealer in Florida and is located at 2705 1st Street, Bradenton, Florida. Respondent Granny's Motorsports is a licensed motor vehicle dealer in Florida and an existing Kawasaki dealer located at 2001 University Parkway, Sarasota, Florida. In 1991, Granny's Motorsports was formed from the purchase of an existing dealership known as "Cycles N' Stuff" located on 17th Street in Sarasota, Florida. However, with the approval of Kawasaki Motors, Granny's Motorsports relocated to its present location in July 1997. Granny's Motorsports sold the full product line of licensed motor vehicles for Kawasaki, Yamaha, and Suzuki at its 17th Street location and currently sells the full product line of these manufacturers. Petitioner Kawasaki Motors proposes to allow the establishment of Action Jet as a dealership for the sale of Kawasaki motorcycles. Granny's Motorsports has standing to protest the proposed establishment of Action Jet as a Kawasaki motorcycle dealership pursuant to Section 320.642(3), Florida Statutes. This proceeding is governed by Section 320.642, Florida Statutes, which sets forth the conditions for establishment of an additional dealer if a protest is filed. According to that provision, Kawasaki Motors will be allowed to establish a new dealership if the existing franchised dealer is not providing adequate representation of Kawasaki vehicles in the subject community or territory. While that provision lists factors which may be considered in making this determination, the statute does not define "community or territory" or "adequate representation." A determination of what constitutes the appropriate "community or territory" is a question of fact that must be made on a case-by-case basis. To determine whether a market is so connected as to form a community or territory, there must be significant cross- sell between the existing dealer in Sarasota/Bradenton and the fringe dealers, those in the surrounding area, to consider if they are, in fact, acting as one market. The consumer data used for analysis of sales in the motorcycle industry is assembled and provided by the Motorcycle Industry Council (MIC). Although MIC data contains information for all motorcycle products for the purposes of establishing adequacy of representation under Section 320.642, Florida Statutes, only information relative to on-road motorcycles and dual-purpose motorcycle sales has been considered. Six Kawasaki dealers in Pinellas, Hillsborough, Polk, and Charlotte counties occupy the area surrounding the Manatee and Sarasota county area. Consumer behavior data indicates that very few of the Kawasaki sales made by these six dealers are made to customers residing in Sarasota and Manatee counties. Rather, the vast majority of the sales into Sarasota and Manatee counties is made by Granny's Motorsports. After excluding these fringe dealers from the potential community or territory, it was necessary to determine whether there was sufficient cross-sell within Sarasota County and Manatee County to determine whether these two counties are connected from a Kawasaki marketing standpoint. However, because the proposed dealer in Bradenton is not in place yet and there is only one existing dealer in the area, there is no cross-sell and this analysis is not possible. Analysis of consumer behavior and cross-sell patterns demonstrate that, for Kawasaki motorcycles, Sarasota and Manatee counties are a single market and comprise the Bradenton/Sarasota community or territory for the purpose of analysis under Section 320.642, Florida Statutes. A primary market area (PMA) or identifiable plot, in which an existing or proposed resident dealer has or should have a competitive advantage over same line-make dealers by virtue of the resident dealer's location. Each dealer, including Granny's Motorsports, is assigned a primary market area of a radius of five miles around his dealership. However, this distance was considered to be too small to constitute a reasonable area for market analysis. The starting point for establishing the PMAs for Granny's Motorsports and the proposed Bradenton dealership, Petitioner Action Jet, was the assignment of zip codes within the Bradenton/Sarasota community or territory. Utilizing this process, generally, zip code areas closest to Granny's Motorsports were assigned to that dealer and those zip code areas closest to the proposed Bradenton dealership, Action Jet, were assigned to that dealership. However, in certain instances, although the center of a zip code was closer to one dealer, the roads and traffic patterns suggested that a zip code should be assigned to a different dealer's PMA. This situation was present in this case and, accordingly, several zip codes were assigned on a basis other than distance. The Sarasota PMA is the area in which Granny's Motorsports is located and in which it has a geographic advantage. Moreover, Granny's Motorsports will continue to have that advantage even after the establishment of Action Jet. The Bradenton PMA is the area in which the proposed Action Jet dealership would have an advantage upon its establishment. In the Bradenton/Sarasota community or territory, there are eleven competing line-make motorcycle dealers. To determine whether the existing Kawasaki dealers are providing "adequate representation" in the Bradenton/Sarasota community or territory, the factors enumerated in Section 320.642, Florida Statutes, may be considered. The most common measure for evaluating the performance of a dealer network is analysis of market penetration data. Market penetration represents the competitive efforts of all the dealers, using data concerning the sale of all brands to comprise a single indicator also called market share. This is the single most objective and accurate measure of market activity. Market share represents the sales of a manufacturer, such as Kawasaki, in proportion to the business available. To develop a standard to measure adequacy of representation for the Bradenton PMA, the Sarasota PMA, or the community or territory, the first step is to attempt to locate an area near the area being studied, but which does not overlap with that area where Kawasaki is adequately represented. After adjusting for product popularity differences, the Polk County standard offers the most appropriate expected market penetration against which to judge the performance of Kawasaki in the Bradenton/Sarasota community or territory and in the Bradenton and Sarasota PMAs which make up that community or territory. In this case, Polk County, which is adjacent to the Bradenton/Sarasota community or territory, appears to be adequately represented because it exceeds the Florida average for Kawasaki. The Florida average is a conservative standard because it takes into consideration Kawasaki's performance in areas with adequate, inadequate, and no representation. Polk County is also an appropriate starting point for determining a reasonably expected market penetration because it represents actual experience of the Kawasaki penetration which is being obtained in an adjacent area. However, when comparing one market to another, adjustments must be made for consumer preferences which might differ from one market to another. This is important because consumer preferences among different types of motorcycles, independent of brand, are beyond the control of the dealers. Market segmentation adjusts for consumer preferences which differ between markets. Sales data by segment reflects actual consumer purchases, implicitly accounting for the effects of all demographic characteristics including age, income, education, size-class preferences, and product popularity on vehicle purchase behavior. In this proceeding, only on-road motorcycle and dual- purpose motorcycles are considered. With regard to these categories, the MIC classifies motorcycles into five segments. These segments list models which are comparable to one another and are presumably, competing for the same customers. By measuring Kawasaki's penetration in each segment achieved in Polk County, compared to the opportunity available in each segment in the Bradenton/Sarasota community or territory, an appropriate standard is established for what the Bradenton/Sarasota community or territory should expect if it were receiving adequate representation. Using the Polk County average and adjusting for local segment popularity, the reasonably expected market share for Kawasaki on-road and dual-purpose motorcycles in the Bradenton/Sarasota community or territory was 16.47 percent in 1996; 13.69 percent in 1997; 16.70 percent in 1998; and 16.21 percent for the first nine months of 1999. Alternatively, using the more conservative Florida average as a standard and adjusting for product popularity, Kawasaki in the Bradenton/Sarasota community or territory would be expected to achieve 16.24 percent in 1996; 13.49 percent in 1997; 13.94 percent in 1998; and 12.89 percent for the first nine months of 1999. The reasonably expected segment penetration for Polk County, adjusted for local segment popularity, is accepted as the appropriate standard against which to judge the performance of the Bradenton/Sarasota community or territory. After making the market segment adjustments, Kawasaki Motors' market penetration in the Bradenton/Sarasota community or territory was below reasonably expected levels for the period 1996 through the last nine months of 1999. This is the case whether using the Polk County average or the Florida average. The actual penetration of Kawasaki in the Bradenton/Sarasota community or territory was 13.69 percent in 1996; 10.37 percent in 1997; 9.12 percent in 1998; and 6.81 percent for the first nine months in 1999. Using the Polk County average standard, from 1996 through the first nine months of 1999, the Bradenton/Sarasota community or territory's performance declined from 83 percent of expected in 1996 to only 42 percent of expected in 1999. By comparison, utilizing the Florida average as a standard, the Bradenton/Sarasota' performance went from 84.3 percent of expected in 1996 to only 52.9 percent of expected in 1999. The net shortfall in units, or the number of on-road and/or dual-purpose motorcycles, which would be required to be sold in order to bring Kawasaki in the Bradenton/Sarasota community or territory up to the expected performance, was 12 units in 1996, 16 units in 1997, 44 units in 1998, and 51 units in 1999. Using the more conservative Florida standard, the net shortfall increased from 11 in 1996 to 33 in 1999. Similar patterns emerge when Kawasaki's penetration in the Bradenton PMA and the Sarasota PMA is compared with expected penetration based upon the Polk County and Florida standards. Utilizing the segment analysis, Kawasaki's actual performance compared to expected in the Bradenton PMA has fallen from 85.7 percent of expected in 1996 to 53.8 percent of expected in the first nine months of 1999. A temporary effect of the relocation of Granny's Motorsports north to its new location, which opened in July 1997, can be seen as the actual penetration reached 100 percent of expected in 1997. However, since that time, the performance of the Bradenton PMA has continued to fall to a point substantially lower than it was prior to the relocation. Similar results are seen when the Bradenton PMA's performance is compared to the Florida average. Kawasaki's representation in the Sarasota PMA, where Granny's Motorsports is located, also has fallen consistently for the past four years. Using the Polk County standard, Granny's Motorsports went from achieving 82 percent of its expected penetration in 1996 to 35.9 percent in 1999. By comparison, using the Florida standard, the Sarasota PMA went from achieving 83.7 percent of its expected penetration in 1996 to 46 percent in 1999. The steady decline over time demonstrates that Granny's Motorsports, the only dealer in the Bradenton/Sarasota community or territory, may not be able to adequately represent Kawasaki in its own PMA because it is attempting to cover an area which is too large for it to adequately serve. In terms of reasonably expected market penetration, the Bradenton/Sarasota community or territory, as well as the Bradenton PMA and the Sarasota PMA, are not receiving adequate representation for Kawasaki. Factors contributing to Kawasaki's receiving inadequate representation in the Bradenton/Sarasota community or territory and in the Bradenton PMA and the Sarasota PMA may be the number and location of the dealers. However, a determination that the establishment of a second dealership in the Bradenton/Sarasota community or territory is warranted must be based on the economic and marketing conditions pertinent to dealers competing in the community or territory, including anticipated changes. The current and future demographic factors in the Bradenton/Sarasota community or territory indicate that the addition of a Kawasaki Motors dealer is justified in terms of economic or marketing conditions pertinent to dealers competing in the community or territory. The Bradenton/Sarasota community or territory has experienced considerable economic and market growth. Since 1980, the community/territory has had a significant increase in the driving age population and households. This trend is predicted to continue through 2003. An additional indication of the economic growth is the increase in the annual employment. In Sarasota and Manatee Counties, the annual average employment has increased by approximately 52,000 jobs between 1990 and 1999. The Bradenton PMA and the Sarasota PMA have also experienced substantial growth with such trends predicted to continue through 2003. Demographic factors in both the Bradenton and Sarasota PMAs are conducive to selling new motorcycles. They both contain a reasonable mix of upper and middle income areas. The median household income of the new motorcycle buyer falls into the range of around $50,000. In terms of the growth of the total motorcycle industry, as reflected by the on-road and dual-purpose segment, there has been a substantial increase in the amount of the total industry sales, for which Granny's Motorsports can compete, available since 1996. This increase is present in both the Bradenton PMA and the Sarasota PMA. In light of the growth in the total available motorcycle market, measured by total industry sales, coupled with the demographic and employment characteristics, the inadequacy of representation is not due to local demographic or economic factors or lack of growth in the motorcycle industry. Rather, the inadequacy of representation is likely due the inability of one dealer to keep pace with the growth in the market. The distance between Granny's Motorsports and the proposed Action Jet location is 7.8 miles and 19 minutes and 8 seconds driving time. From a geographical standpoint, the Bradenton/Sarasota community or territory is large, approximately 40 to 50 miles from north to south. Despite this large area and the increase in the size of the motorcycle market, the Bradenton/Sarasota community or territory is served by only one Kawasaki dealer. Establishment of an additional Kawasaki dealer is justified based on the size of the market in the Bradenton/Sarasota community or territory, measured in comparison to Polk County and the number of Kawasaki dealers and competitors there. For example, in the Bradenton/Sarasota community or territory, where Kawasaki is receiving inadequate representation, Kawasaki has 9.1 percent of the franchises. In Polk County, where Kawasaki is receiving adequate representation, Kawasaki has 20 percent of the franchises. In order to have the same share of the franchises in Bradenton/Sarasota which it has in Polk County, Kawasaki would be required to have 2.5 dealerships. Therefore, in addition to the one dealership present in the Bradenton/Sarasota community or territory at this time, Granny's Motorsports, one additional Kawasaki dealer is needed. The inadequate market penetration for Kawasaki demonstrates that there is insufficient inter-brand competition, or competition between dealers selling different brands. Moreover, there is no intra-brand competition between Kawasaki dealers because none of the other Kawasaki dealers in the surrounding area sell meaningful numbers of units into the Bradenton/Sarasota community or territory. The proposed location in Bradenton has a concentration of motorcycle purchasers which justifies the placement of a Kawasaki dealership in Manatee County. The establishment of the Bradenton dealership will likely benefit consumers and the public interest. It will provide the growing population of the Bradenton/Sarasota community or territory with a more convenient place to shop for Kawasakis and more convenient Kawasaki service. The probable impact of the proposed additional dealership on the existing Kawasaki dealer can be determined by examining the gross sales loss in the Bradenton/Sarasota community or territory. The gross sales loss is the number of on-road and/or dual-purpose motorcycles sold in the subject community or territory by the competitive dealerships in that area. The gross sales loss in the Bradenton/Sarasota community or territory was 48 units for 1998. In addition to this opportunity being available to the existing Kawasaki dealer, there were 9 units of in-sell or Kawasaki units sold by dealers outside the Manatee and Sarasota Counties to local customers. Thus, there is a total lost opportunity of 57 units for which Granny's Motorsports can compete. If the new proposed dealer is established, there will be no necessary negative impact on Granny's Motorsports because there is opportunity available to be captured from inter-brand competitors. When a dealer is added to a market with inadequate representation, typically, competition is enhanced and the market for the product expands over what it otherwise would have been. The addition of Action Jet will have a positive impact on consumers. It will provide additional competition and a much more convenient shopping alternative. The addition of a dealership will likely benefit Kawasaki Motors in terms of additional sales of motorcycles and market share. Granny's Motorsports has made a substantial investment in its current and previous facilities. In 1991, when Granny's Motorsports purchased an existing dealership located on 17th Street in Sarasota, extensive renovations were performed, the equipment was updated, and the staff was increased and trained. In 1996, Granny's Motorsports purchased the property at which its present dealership is located. After applying for and receiving the approval of Kawasaki Motors, in July 1997, Granny's Motorsports moved into the new facility located on University Parkway in Sarasota. However, the University Parkway facility, which had previously been a boat manufacturing plant, required extensive renovations before Granny's Motorsports could occupy the facility. Granny's Motorsports' total investment in the new facility was about $1,000,000. Although Kawasaki Motors approved the relocation of Granny's Motorsports, it never suggested or recommended the relocation. Therefore, the substantial costs associated with and resulting from Granny's Motorsports' relocation were not incurred to perform obligations under the dealer agreement between Kawasaki Motors and Granny's Motorsports. Rather, the investment and expenditures made by Granny's Motorsports were for the business as a whole, which includes the sale of the full product line of not only Kawasaki, but also of Yamaha and Suzuki. Granny's Motorsports' current location on University Parkway is near the Sarasota and Manatee County line and is centrally located between Sarasota and Bradenton and in the middle of two main clusters of population for the Bradenton/Sarasota community or territory. However, the market share deficiency suffered by Kawasaki demonstrates that the facility is not in a location from which Granny's Motorsports has been able to adequately represent Kawasaki in the community or territory and, in specifically in the Bradenton PMA. By allowing Granny's Motorsports to relocate to the location it requested, Kawasaki Motors allowed Granny's Motorsports the opportunity to take advantage of the growing market within Manatee and Sarasota counties in the manner it requested to do so. Granny's Motorsports has been in the University Parkway facility for over two years, but Kawasaki's market share continues well below an acceptable minimal standard and is declining. Granny's Motorsports is an adequate facility and its owner and manager are doing what they believe is the best they can do to maximize their efforts to sell Kawasaki Motors product. Notwithstanding these efforts, Granny's Motorsports was not been able to effectively service the entire Bradenton/Sarasota community or territory. Prior to 1978, a Kawasaki dealership had been established in Bradenton. That dealership had coexisted with the dealership in Sarasota until it went out of business in 1993 because of an absentee owner and management and operation problems. In fact, when Granny's Motorsports brought its dealership in Sarasota in 1991, the Kawasaki dealership was operating in Bradenton. Kawasaki Motors believes that by replacing the dealership in Bradenton which had been very successful for many years, it will be able to better service the Bradenton/Sarasota community or territory. Kawasaki Motors' low market share compared to expected in the Bradenton/Sarasota community or territory indicates that Kawasaki's one dealer network is currently unable to offer adequate inter-brand competition in the Bradenton/Sarasota community or territory. The failure of the efforts of the existing Kawasaki dealer to reach the minimum expected market share in the Bradenton/Sarasota community or territory demonstrates that the existing Kawasaki dealer is not nearly capturing all reasonably available sales. There is significant untapped market opportunity available in the Bradenton/Sarasota community or territory. This is due, at least in part, to the size of the market and a single dealer's inability to serve the entire market. The market opportunity is so great that Action Jet, the proposed dealer to be established in the Bradenton PMA, likely will not be able to capture all of the increased sales from opportunity currently lost to inter-brand competitors. Therefore, Granny's Motorsports will have the opportunity to increase its current sales level. Having a convenient dealer in the Bradenton/Sarasota community or territory can stimulate new sales interest in Kawasaki across the market. If existing Kawasaki dealers respond aggressively and offer competitive value, they will capture some of the increased sales generated by the presence of the additional dealer in the Bradenton/Sarasota community or territory.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order approving the establishment of Kawasaki Motors' dealership at Action Jet, 2705 1st Street, Bradenton, Florida. DONE AND ENTERED this 8th day of May, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 8th day of May, 2000. COPIES FURNISHED: Dean Bunch, Esquire Kelly A. O'Keefe, Esquire Sutherland, Asbill and Brennan, L.L.P. 2282 Killearn Center Boulevard Tallahassee, Florida 32308 Charles D. Bailey, III, Esquire Bowman, George, Scheb, Toale and Robinson 22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237 Andrew H. Cohen, Esquire Hankin, Perrson, Davis & Darnell 2033 Main Street, Suite 400 Sarasota, Florida 34237 Charles J. Brantley, Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
The Issue The issue for determination in this proceeding is whether Kawasaki Motors Corp., U.S.A. ("Kawasaki") should establish a new dealership doing business as Orlando Yamaha Kawasaki ("OYK").
Findings Of Fact Cycle Sports is an existing Kawasaki dealer in Orange County, Florida ("Orange County"). It is located at 4001 John Young Parkway, in west Orlando, Florida ("Orlando"), north of West Colonial Drive. Seminole Powersports is an existing Kawasaki dealer in Seminole County, Florida ("Seminole County"). It is located at 3401 North Highway 17-92, in Longwood, Florida. OYK is an existing dealer for Yamaha motorcycles. It is located in east Orlando, at 9334 East Colonial Drive. Kawasaki is an importer of motorcycles. It proposes to establish an additional Kawasaki dealership at the present location of OYK (the "proposed dealership"). The two dealerships operated by Respondents are each located within 12.5 air miles of the proposed dealership. Orange County has a population in excess of 300,000. On April 1, 1994, the population of Orange County was 740,167. 1. Community or Territory The term "community or territory" is not defined in Section 320.642, Florida Statutes. 1/ The relevant community or territory to be considered in determining whether the proposed dealership should be established is a question of fact. 2/ Each dealer's primary area of responsibility is entitled to great weight in determining the relevant community or territory. 3/ The dealer agreements between Respondents and Kawasaki define each dealer's primary area of responsibility as the area lying within a circle centered at each dealership, with each circle having a radius of five miles. The proposed dealership is not located in the primary area of responsibility of either dealer. Cycle Sports is located approximately 10 miles from the proposed dealership. Seminole Sports is located approximately 11.5 miles from the proposed dealership. Buying patterns of Yamaha motorcycle purchasers at the proposed dealership and those of Kawasaki motorcycle purchasers at Respondents' dealerships provide a reasonable basis for determining the relevant community or territory to be served by the proposed dealership. No Kawasaki sales records are available for the proposed dealership. It is not yet a Kawasaki dealer. The majority of Kawasaki motorcycle sales in 1994 made by Cycle Sports were made to customers in Orange County. Sales were concentrated in the west Orange County near the selling dealer. The majority of Kawasaki motorcycle sales in 1994 made by Seminole Powersports were made to customers in Seminole County. Although Seminole Powersports made some sales to customers in Orange County, those sales comprised a small portion of the total sales made by Seminole Powersports. The majority of Yamaha sales in 1994 made by OYK were made to customers residing in Orange County. Sales were concentrated in east Orange County near OYK. Based on consumer behavior, Orange County is the appropriate community or territory to be considered in determining whether the proposed dealership should be established. Respondents presented no credible and persuasive evidence to support an alternative definition of the relevant community or territory. Adequacy Of Representation Respondents do not adequately represent Kawasaki in the relevant community or territory for purposes of Section 320.642. Adequacy of representation is determined by considering relevant factors in Section 320.642. Market Penetration Market penetration, or market share, is the percentage of Kawasaki products sold compared to the total products sold in the industry, regardless of the selling dealer. Sales are determined on the basis of registration and other sales information compiled by R. L. Polk and Co.("Polk") and the Motorcycle Industry Council ("MIC"). 2.1(a) Types Of Vehicles And Data Polk data is used for years prior to January, 1994. Since then, sales are measured by the information compiled by MIC. Polk data includes on-highway motorcycles. On-highway motorcycles are those registered in each state for use on highways. Most all terrain vehicles ("ATVs") are not registered in the State of Florida. Registrations of ATVs in the Polk data are not useful in determining Kawasaki's market penetration. Polk data includes registrations of motor scooters registered for street use. Kawasaki does not compete in the motor scooter market. Consideration of ATVs and motor scooters is not appropriate to determine the adequacy of performance by Kawasaki dealers. Only registrations of on-highway, two-wheel motorcycles in the Polk data are properly considered in determining adequacy of performance. MIC data includes sales of all vehicles sold by the major motorcycle brands, regardless of whether the vehicles are registered for street use. MIC data reflects all sales and is not limited to only those vehicles registered in each state. 2.1(b) Inappropriate Standards National and state averages are not appropriate standards for measuring the adequacy of representation in Orange County. National and state averages include dealers that provide inadequate representation. The state average for Florida includes Pinellas County. In 1994, Kawasaki achieved only 7.42 percent of the on-highway market in Pinellas County compared to the Florida average of 15.23 percent. Kawasaki is "outdealered" by its closest competitors in Pinellas County. Osceola County is just south of Orange County. Kawasaki has no dealers in Osceola County. Yamaha and Suzuki have dealers in Osceola County. In 1994, Kawasaki achieved only 6.25 percent of the on-highway motorcycle market in Osceola County. 2.1(c) Appropriate Standard: Duval County Duval County, Florida ("Duval County"), represents a reasonably achievable standard for evaluating Kawasaki's performance in Orange County. When Kawasaki had an equal number of dealers in Duval and Orange counties as its major competitors, Kawasaki achieved equivalent market penetration in both counties. In Duval County, Kawasaki has two dealerships. During a part of 1988, all of 1989, and a part of 1990, Kawasaki had an two dealerships in Orange County. The second dealership was approximately three miles closer to Cycle Sports than the proposed dealership. In 1989, Kawasaki's market penetration in Duval County was 27.48 percent, and its market penetration in Orange County was 30.56 percent. In 1994, Kawasaki also achieved a 27.48 percent market share of on-highway motorcycles in Duval County. Duval County Comparisons In 1994, Kawasaki achieved a market penetration of 27.48 percent of on-highway motorcycles in Duval County. Kawasaki's market share of dual-purpose motorcycles was 47.05 percent. Its market share of off-road motorcycles was 21.84 percent. Its market share of other vehicles was 24.70 percent. These percentages indicate the reasonably expected level of penetration for the four segments in which Kawasaki competes ("expected sales"). Applying them to total industry registrations available in Orange County in 1994, Kawasaki achieved only 56 percent of its expected sales. Kawasaki lost 108 sales in Orange County from the reasonably expected penetration measured by the Duval County standard. The majority of lost sales were sales of on-highway and dual purpose motorcycles. In 1994, 91 lost sales came from these street-legal segments. Thus, on-highway sales comprise 84 percent of total lost sales. In 1994, Kawasaki sold 27.48 percent of on-highway motorcycles in Duval County. The same year Kawasaki sold only 11.69 percent of on-highway motorcycles in Orange County. Kawasaki's market penetration in Orange County was only 42.5 percent of that in Duval County. For the first six months of 1995, the efficiency of Orange County compared to Duval County was only 35.2 percent, i.e., 9.84 percent in Orange County compared to 27.98 percent in Duval County. In 1994, Kawasaki sold 47.05 percent of dual-purpose motorcycles in Duval County but only 22.6 percent of the same segment in Orange County. That is an efficiency rating of only 48 percent. In 1994, Kawasaki achieved an efficiency of 67 percent in the off-road category, i.e., 14.7 percent in Orange County compared to 21.84 percent in Duval County. In ATVs Kawasaki's Orange County performance achieved 82 percent of the penetration in Duval County, i.e., 22.60 percent in Orange County and 27.48 percent in Duval County. 2.3 Comparisons To National and State Averages As previously found, national and state averages are not appropriate standards for determining adequacy of representation. Those averages contain dealers that inadequately represent Kawasaki. Nevertheless, Kawasaki's representation in Orange County fell short of those standards in 1994 and 1995. The on-highway segment accounts for most of the units sold in the United States and in Florida. In that segment, Orange County performed poorly in comparison to national and state averages. In 1994, Kawasaki's market penetration in Orange County achieved only 77 percent of the Florida average, i.e., 11.69 percent compared to 15.23 percent. It achieved only 85 percent of the national average, i.e., 11.69 percent compared to 13.80 percent. For the first six months of 1995, Kawasaki did worse in Orange County. It achieved only 59 percent of the Florida average, i.e., 9.84 percent compared to 16.54 percent, and 62 percent of the national average, i.e., 9.84 percent compared to 15.93 percent. In the first six months of 1995, Kawasaki's penetration in the on- highway segment in Orange County was down almost two percentage points, from 11.69 percent to 9.84 percent. The state and national averages were both up from 15.23 percent to 16.54 percent in Florida and from 13.80 percent to 15.93 percent nationally. The lower penetration in Orange County at a time when state and national averages are up is the lowest efficiency for Orange County since 1987. 1987 was the year before a second Orange County Kawasaki dealership was established from 1988 through 1990. The only year in which a second Kawasaki dealer was in business in Orange County for the entire year was 1989. Kawasaki's market penetration in Orange County in 1989 was approximately twice its market penetration during 1994 and the first six months of 1995. In 1989, for example, Orange County achieved 30.56 percent of on-highway motorcycle registrations, or 141 percent of the Florida average of 21.75 percent and 160 percent of the national average of 19.13 percent. Tri-County Comparison If Orange, Seminole, and Osceola counties are used as the relevant community or territory, the performance of Kawasaki differs little from the market penetration in Orange County alone. In the on-highway segment, Kawasaki's market share for the three-county area in 1994 was 81 percent of the state average and 90 percent of the national average. For the first six months in 1995, however, Kawasaki's market penetration in Orange County dropped to 58 and 60 percent of the state and national averages, respectively. Likely Cause The motorcycle market in Orange County has increased consistently since 1991. In 1991, total on-highway motorcycle registrations were 431. In 1992 they were 502. In 1993, they were 623. In 1994, they were 650. Registrations increased 50.8 percent from 1991-1994. The likely cause of Kawasaki's inadequate representation in Orange County is the inability of a single dealer to keep up with such growth. Kawasaki sales in Orange County fell after Kawasaki was left with only one dealer in Orange County in 1991. Orange County has a population of more than twice that of Seminole County. Orange County is projected to continue its population growth through 2020. Orange County has become too large for one Kawasaki dealer to serve. The addition of a Kawasaki dealership in east Orlando is justified by growth in the motorcycle market and by population growth generally. Inter-brand Comparisons Kawasaki suffers inadequate representation when inter-brand competition is considered. Kawasaki enjoys relatively equal dealer representation with its major competitors in Duval County. In Orange County, however, Kawasaki has only one dealer compared to two dealers for Yamaha and Suzuki. There is ample opportunity for two Kawasaki dealers to share the Orange County market. Even with two dealers in Orange County, Kawasaki will have only as many dealers as do two of its major competitors. 2.6(a) Sales Patterns Yamaha has two dealerships in Orange County. Yamaha enjoys superior sales in east Orlando where OYK is located. The adverse affect of distance on Respondents' ability to adequately represent Kawasaki in Orange County is demonstrated by the dearth of Kawasaki sales in east Orlando. Sales patterns of the dealerships demonstrate that Respondents are not located to provide convenient interbrand competition. Customers opt for the brand represented in east Orlando, i.e., Yamaha. Kawasaki is not represented in east Orlando. Respondents are too far from the proposed location to overcome the convenience disadvantage suffered by consumers there. 2.6(b) Customer Convenience The distance between Cycle Sports in west Orlando and OYK is 12.1 miles. This represents a driving time of 25 to 31 minutes. The distance between OYK and Seminole Powersports, in Seminole County, is 15.3 miles. This represents a driving time of 25 to 47 minutes. Customers in east Orange County can travel a very short distance to OYK, a Yamaha dealership. To buy a Kawasaki, customers must travel 25 to 31 minutes west, or 25 to 47 minutes north, to a Kawasaki dealership. 2.6(c) National And State Averages From 1989 to 1994, Kawasaki sales in Orange County fell 61 percent while its national and state market share fell only 28 percent and 30 percent, respectively. Kawasaki's market share of on-highway motorcycles fell 28 percent from 19.13 percent to 13.80 percent. The state market share fell 30 percent from 21.75 percent to 15.23 percent. In Orange County, Kawasaki's market share fell from 30.56 percent, in 1989, to 11.69 percent in 1994. 3. Impact Of Proposed Dealership Sales patterns of Cycle Sports most overlap those of the proposed dealership. Cycle Sports is not primarily concerned with an additional motorcycle dealership. The primary concern of Cycle Sports is that Kawasaki will permit the proposed dealership to establish another watercraft dealer. Respondents presented no credible and persuasive evidence of any adverse impact on profitability or sales from the proposed dealership. The proposed dealership will not negatively impact existing dealers. The proposed dealership will bring additional exposure for the brand and additional opportunity for customers to comparison shop among brands. The negative impact on Kawasaki is measured by lost sales opportunities. The proposed dealership will provide Kawasaki with an opportunity to capture those lost sales. The addition of a Kawasaki dealer in Orange County will have a positive impact on consumers. They will benefit from additional inter-brand and intra-brand competition. That competition will benefit consumers in terms of price, service, and product availability. 4. Size And Permanency Of Investment By Existing Dealer Respondents expanded their respective facilities since purchasing their Kawasaki dealerships. The additional investment represented by the expansion of both dealerships was not required by Kawasaki to comply with respective dealer agreements or otherwise. The additional investment was the result of Respondents' separate and independent choice.
Recommendation Based upon the above findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be issued granting the application of OYK to establish an additional Kawasaki dealership at 9334 East Colonial Drive, Orlando, Orange County, Florida. DONE and ORDERED this 5th day of January, 1996, in Tallahassee, Leon County, Florida. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996.
Findings Of Fact Based upon the evidence presented at hearing, the following findings of fact are determined: PARTIES The Applicant has applied to the Department for a motor vehicle dealer license authorizing it to operate a Yamaha franchise motorcycle dealership in Jacksonville, Duval County, Florida, at 8940 Lem Turner Road. (Testimony of Turner; P.E. 2.) Petitioner, Ron Turner Cycles, Inc. (hereinafter "Turner"), owns and operates a dual Yamaha/Suzuki motorcycle dealership in Jacksonville at 10263 Beach Boulevard. The Suzuki franchise for that location was acquired in 1976, and the Yamaha franchise followed in 1979. Turner has owned the exclusive Suzuki motorcycle franchise for Duval County since 1976. In addition to its dealership on Beach Boulevard, Turner owns and operates a Suzuki dealership located at 8940 Lem Turner Road, which opened in September of 1982. Petitioner's President, Ron Turner, has lived in Jacksonville for 39 years and has been in the motorcycle business for 20 years. The Protestant owns and operates an existing Yamaha motorcycle dealership in Jacksonville, located at 4949 Blanding Boulevard. The Protestant also owns Honda and Kawasaki motorcycle dealerships in Duval County, located on Blanding Boulevard. (Testimony of Purcell and Turner; P.E. 1.) The Applicant and the Protestant are the only existing Yamaha franchise dealers in Duval County. Yamaha has determined that a third franchise dealership should be located in the northside area of Jacksonville and has issued the Applicant a letter of intent dated July 30, 1982, indicating its willingness to enter into a Dealer Agreement with the Applicant to operate a Yamaha motorcycle dealership at 8940 Lem Turner Road, Jacksonville, Florida. (Testimony of Turner and Ewing; P.E. 1 and 3.) Yamaha is the national distributor for Yamaha brand motorcycles, parts and accessories in the United States. Its model issue for 1983 is constituted of 42 motorcycles ranging in retail price from $300.00 to $5,000.00. Yamaha offers various street machines, competition machines and dual-purpose motorcycles. The Department is an agency within the State of Florida with regulatory responsibility and authority, among those duties being the requirement to approve or disapprove the application for-new motorcycle dealer licenses in Florida sought by the prospective franchisees of the various motorcycle manufacturers and distributors. TERRITORY INVOLVED Duval County is a large county with a population of approximately 571,003 based on the 1980 census, and has experienced a growth rate of 8 percent from 1970 to 1980, which represents an average annual rate of increase of 0.5 percent to 0.7 percent. During the next ten years, population growth and employment is expected to continue in a modest fashion. The City of Jacksonville encompasses the entire county except for the Beaches and Baldwin. Jacksonville is divided by the St. Johns River running north and south, and the various areas of the county are connected by major federal highways, Interstate 10, Interstate 295, Interstate 95, U.S. 1 and U.S. 90 (Beaver Street). (Testimony of Perry; P.E. 1.) Largely because of wide geographic separation between the population located east and west of the St. Johns River and in northern parts of the county, each area has developed distinct and identifiable marketing areas for general retail businesses. (Testimony of Perry; P.E. 1.) The area west of the St. Johns River (hereinafter "Southwest Jacksonville") may be described as that part of the city south of Beaver Street (U.S. Highway 90) to the county line and west of the St. Johns River to the Whitehouse area. The Jacksonville Naval Air Station and Cecil Field Naval Air Station are located in this market area. Using postal zip code areas, Southwest Jacksonville includes zip codes 32204, 32205, 32210/44, 32221 and 32222, and has a population of 58,643 people. (Testimony of Turner, Lamprecht and Perry; P.E. 11 and 12.) Four major franchise motorcycle dealerships are located in Southwest Jacksonville and the extreme northern part of adjacent Clay County. They are found on Blanding Boulevard. The brands are Honda, Yamaha, Suzuki and Kawasaki, three of which (Honda, Yamaha and Kawasaki) are owned by the Protestant's owner, Gary Purcell. (Testimony of Turner and Purcell; P.E. 1.) The area east of the St. Johns River (hereinafter "Southeast Jacksonville") may be described as that part of the city east of the St. Johns River including the Arlington-Fort Caroline and Southside areas. Numerous shopping centers, residential neighborhoods and Regency Square regional shopping center have developed to serve the population in this area. Using postal zip code areas, Southeast Jacksonville included zip codes 32207, 32211, 32216/24, 32217, 32223 and 32225, and has a population of 181,982 people. (Testimony of Turner, Lamprecht and Perry; P.E 9 and 10.) Four major franchise dealerships are located in Southeast Jacksonville: Honda (2), Kawasaki, and Turner's dual Yamaha/Suzuki dealership on Beach Boulevard. (Testimony of Turner; P.E. 1.) The market areas in the northern part of the city (hereinafter the "Northside") include most of the growing residential and commercial neighborhoods north of Beaver Street within a pie-shaped area lying between Interstate 95, U.S. 1, and zip code 32219 north of Cecil Field Naval Air Station. Using postal zip code areas, the Northside includes zip codes 32206, 32208, 32204, 32218 and 32219, and has a population of 143,308 people. (Testimony of Turner, Lamprecht and Perry; P.E. 1 and 15.) There are no major franchise motorcycle dealerships on the Northside, except for the Suzuki shop owned by Turner on Lem Turner Road. (Testimony of Turner.) MARKET AREA INVOLVED Customers for the sales and service of new Yamaha motorcycles in Duval County are served primarily at two separate locations previously described as the Southwest Jacksonville and Southeast Jacksonville market areas. The Protestant serves the Southwest Jacksonville market area. Turner serves the Southeast Jacksonville market area. (Testimony of Lamprecht and Ewing; P.E. 8.) Two and one-half years ago, Yamaha made a preliminary determination that an additional dealership was needed in Jacksonville, but such action was postponed for two years while Yamaha's district sales managers worked with Turner and the Protestant to try and increase Yamaha's market share in Duval County. When the market penetration as a percentage of market share did not advance, Yamaha decided to open a third dealership in Duval County. (Testimony of Ewing.) July of 1982 was the date the decision to open the additional dealership was formalized. The Northside market area was selected as the location for the new dealership, based upon the fact that there were no other motorcycle dealerships in the northern part of Jacksonville and outlying areas adjacent to that part of Jacksonville. This area was also selected because the majority of people who buy Yamaha products are in the middle-to-low income range, and the Northside has that type population. (Testimony of Ewing.) An inverse relationship exists between the likelihood of selling a person a Yamaha motorcycle and the distance between the dealership and where the customer lives. Generally speaking, consumers shop in their neighborhoods for convenience, and if there is no Yamaha dealer, they will go to competitive brands if available, or not buy if required to drive 30 miles round-trip to purchase a Yamaha motorcycle. (Testimony of Turner and Lamprecht.) The distance between the Protestant's existing dealership on Blanding Boulevard and the Applicant's proposed dealership on Lem Turner Road in the Northside market area is 15 miles and takes approximately 20 to 25 minutes to travel, depending on traffic. The distance and time between the dealerships of the Protestant and Turner and Turner and the Applicant are also 15 miles, and 20 to 25 minutes. (Testimony of Turner; P.E. 1.) ADEQUACY OF REPRESENTATION BY TURNER AND PROTESTANT IN THE NORTHSIDE MARKET AREA Market penetration relative to competitors is a standard tool for measuring the adequacy and performance of a motorcycle dealership. Market penetration is determined by Yamaha by use of: (1) R. L. Polk Company (hereinafter "Polk") motorcycle statistics based on state and county new motorcycle registrations, (2) Yamaha warranty registrations for its existing dealers categorized by dip code designation, and (3) population-per-dealer statistics. (Testimony of Lamprecht.) According to Polk, the four largest selling motorcycle brands in the United States are Honda, Yamaha, Kawasaki and Suzuki. The relative penetration of Yamaha during the year 1982, through October, in comparable market areas is as follows: UNITED STATES Honda - 42.3 Yamaha - 23.2 Suzuki - 14.8 Kawasaki - 13.6 SOUTHEASTERN REGION Honda - 50.1 Yamaha - 20.0 Suzuki - 13.5 Kawasaki - 12.0 DUVAL COUNTY Honda - 48.7 Kawasaki - 18.7 Yamaha - 16.4 Suzuki - 10.9 In both the United States and the Southeastern Region, Yamaha is number two in registrations, but in Duval County Yamaha has dropped to number three below Kawasaki. (Testimony of Lamprecht; P.E. 6.) During the past five years (1978 through October, 1982), Yamaha's market share of Polk registrations in Duval County has been well below both the Southeastern Region and the United States. In 1982, through the month of October, Yamaha's market shares in these areas of comparison were: United States 23.2 Southeastern Region 20.0 Duval County 16.4 Yamaha's market penetration, or share of total import sales, of 16.4 percent in Duval County is 3.6 percent behind its penetration in the Southeastern Region of 20 percent, and 6.8 percent behind its national market share of 23.2 percent. (Testimony of Lamprecht; P.E. 5.) Market penetration is also determined by Yamaha through population- per-dealer statistics. Based upon 1980 census figures, Yamaha has one dealer for every 139,155 people in the United States. In Duval County there are 287,350 people for each of Yamaha's two existing dealers, which is twice the national average. With three dealers in Duval County, the ratio would be one dealer for every 191,567 people, which is still substantially higher than Yamaha's national and regional penetration, and is an indication or explanation that Yamaha's market share in Duval County is lower than it is for the United States and the Southeastern Region because there are not enough dealers to serve the area. (Testimony of Lamprecht; P.E. 7.) Yamaha warranty registration records indicate that its dealers make most of their sales within the general area surrounding their dealerships. This is attributable to the shopping habits of customers; people prefer to purchase motorcycles and have them serviced from dealers which are convenient, close by, and readily accessible to where they live and work. In this case, the Protestant's sales experience is consistent with this customer preference. (Testimony of Lamprecht.) During the period from January 1, 1981, through August 31, 1982, Yamaha has determined that most of the Protestant's motorcycle sales occurred in the Southwest Jacksonville market area from the heavy concentration of population around its dealership. In 1982, through the month of August, the Protestant sold only three Yamaha motorcycles in the Northside market area out of a total of 140 Yamaha sales during that period, or 2.1 percent of its total sales. The Protestant's concentration of sales for the entire year 1981 showed the same pattern, and only 8.4 percent of its total sales were in the Northside market area. (Testimony of Lamprecht; P.E. 11 and 12.) Yamaha's warranty registration records show that during the year 1981, the Protestant sold 113 motorcycles in Southwest Jacksonville zip code areas which, spread over the total population in the area of 58,643, indicates a sales ratio of one motorcycle unit per 519 persons in the Southwest Jacksonville market area. (Testimony of Perry.) During the period from January 1, 1981, through August 31, 1982, Yamaha has determined that most of Turner's motorcycle sales occurred in the Southeast Jacksonville market area concentrated around its dealership. In 1982, through the month of August, Turner sold only ten Yamaha motorcycles in the Northside market area out of a total of 107 Yamaha sales during that period, or 9.3 percent of its total sales. Turner's concentration of sales for the entire year 1981 showed the same pattern and market area. (Testimony of Lamprecht; P.E. 9 and 10.) Yamaha's warranty registration records show that during the year 1981, Turner sold 103 motorcycles in Southeast Jacksonville zip code areas which, spread over the total population in the area of 181,982, indicates a sales ratio of one motorcycle unit per 1,767 persons in the Southeast Jacksonville market area. (Testimony of Perry.) Yamaha's warranty registration records further show that during the year 1981, Turner and the Protestant sold only 39 motorcycles in Northside zip code areas which, spread over the total population in the area of over 140,000, indicates a sales ratio of one motorcycle unit per 3,675 persons in the Northside market area. (Testimony of Perry.) The Protestant and Turner are not reaching the potential motorcycle market in the northern part of the city and, as a result, Yamaha representation and market share in Duval County market is inadequate. (Testimony of Lamprecht and Ewing.) ECONOMIC VIABILITY OF A NEW DEALERSHIP ON THE NORTHSIDE Turner now operates an efficient and profitable Yamaha/Suzuki motorcycle dealership on Beach Boulevard, and its sales during October, November and December, 1982, have been the best the dealership has had in seven years. (Testimony of Turner and Ewing.) Turner has been operating a Suzuki dealership on the Northside since September 1, 1982. Suzuki sales at that location through Christmas were within projections, and the business is operating on a break-even basis. Turner's Suzuki sales during this period were made primarily to customers living in the Northside zip code areas. (Testimony of Turner.) The average motorcycle consumer is a male, age 18 to 34, blue-collar worker, in the lower-middle to middle class. The Yamaha line is designed to capture a market for all age consumers. (Testimony of Lamprecht and Ewing.) The Northside has a population of over 140,000 persons, or 20 percent of the Duval County population. This population is essentially made up of middle or lower-middle income, blue-collar and clerical workers having a basic income of between $16,000 and $18,000 a year. This represents the backbone of the Duval County labor force and economy. The average family home in this area has a market price of approximately $30,000. All of these factors suggest that the Northside area has a good stable population of lower-middle income persons with purchasing power to buy motorcycles, and the area can be expected, like the rest of Duval County, to expand over the next ten years. (Testimony of Perry.) Retail sales studies made by Yamaha in the Southeastern Region establish that through the last quarter of 1982 there has been no change in retail sales from 1981 to 1982. (Testimony of Lamprecht.) Motorcycle registrations for Duval County for fiscal years 1977-1978 through 1980-1981 have shown a modest, stable increased trend consistent with the population growth, and such trend is expected to continue. (Testimony of Perry; P.E. 14.) The location of a Yamaha dealership on the Northside at the proposed Lem Turner location will not operate to reduce sales on the part of the Protestant or Turner. The dealership located in a presently unrepresented area will assist Yamaha in further penetration of the Duval County market. By increasing the visibility of Yamaha generally, the additional facility will increase demand and brand awareness for all Yamaha dealers along, with a greater degree of competition in sales and service. While the Protestant and Turner can offer Yamaha motorcycles to potential customers in the Northside Area, they cannot stimulate such sales as well as a specific dealership in that location could.
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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McK.ibben, 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 Voluntary Dismissal. Accordingly, it is hereby ORDERED that the Dealer Agreement between Qlink, LP and Mega Power Sports, Corporation is terminated. DONE AND ORDERED this z/.ayofOctober, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed October 15, 2009 3:41 PM Division of Administrative Hearings. Filed with the Clerk of the Division of Motor Vehicles this day of October, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Mark L. Ornstein, Esquire Killgore, Pearlman, Stamp, Ornstein & Squires, P.A. Post Office Box 1913 Orlando, Florida 32802 David Levison Mega Power Sports, Corp. 921 West International Speedway Boulevard Daytona Beach, Florida 32114 R. Bruce McKibben 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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Ella Jane P. Davis, 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 Voluntary Dismissal with prejudice. Accordingly, it is hereby ORDERED that the Dealer Sales and Service Agreement between Kawasaki Motors Corporation, U.S.A. and Fun By Land and Sea, Inc. is terminated. DONE AND ORDERED this yA 4, of August, 2009, in Tallahassee, Leon afl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 County, Florida. Filed with the Clerk of the Division of Motor Vehicles this _Tthday of August, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF: vlg Copies furnished: Donald St. Denis, Esquire St. Denis & Davey 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 Dean Bunch, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32309 Administrator Ella Jane P. Davis 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 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS KAWASAKI MOTORS CORPORATION, _) USA, ) Petitioners, vs. Case No.: 09-0720 FUN BY LAND AND SEA, INC.,, Respondents. | NOTICE OF VOLUNTARY DISMISSAL Respondents, FUN BY LAND & SEA, INC., by and through its undersigned counsel and pursuant to Rule 1.420(c) of the Florida Rules of Civil Procedure, hereby files this Notice of Voluntary Dismissal with prejudice of its Petition for Administrative Proceedings and determination of unfair termination under § 320.641(3), Florida Statutes, by Petitioner, KAWASAKI MOTORS CORPORATION, U.S.A., in the above titled action. Each party to this action shall bear their own attorney fees and costs. ST. DENIS & DAVEY, P.A. DONALD W. ST. DENIS, a Florida Bar Number 0794864 MICHAEL J. LUFKIN, ESQUIRE Florida Bar Number 0030492 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 (904) 396-1996 — Telephone (904) 396-1991 — Facsimile Attorneys for Respondents Filed July 24, 2009 4:46 PM Division of Administrative Hearings. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by facsimile and U.S. Mail this 24th day of July, 2009, to C. Everett Boyd, Jr., Esq., Atiorney for Petitioner, : Nelson Muilins Riley & Scarborough, LLP, 3600 Maclay Boulevard South, Suite 202, Tallahassee, FL 32312; and Dean Bunch, Esq., Attorney for Petitioner, Nelson Mullins Riley & Scarborough, LLP, 3600 Maclay Boulevard South, Suite 202, Tallahassee, FL 32312; and by U.S. Mail to Michael J. Alderman, Esq., Department of Highway Safety and Motor Vehicles, Nei] Kirkman Building, Room A-432, 2900 Apalachee Parkway, Tallahassee, FL 32344.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lisa Shearer Nelson, 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. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Gas Sippers, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 6480 20th Street, #106, Vero Beach (Indian River County), Florida 32966, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed October 15, 2009 3:37 PM Division of Administrative Hearings. DONE AND ORDERED this ay of October, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this jJJ4 day of October, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Emily Haung JMSTAR, Inc. 1455 South Campus Avenue, Unit A Ontario, Canada 91761 2 Valerie Estep Gas Sippers, LLC 6480 20th Street, Unit 106 Vero Beach, Florida 32966 Heidi S. Long H. Long Investments Corp. d/b/a Tropical Scooters of Vero 4901 North US Highway 1, Unit J Vero Beach, Florida 32967 Lisa Shearer Nelson 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 3
