The Issue Whether Florida Administrative Code Rule 15C-7.005 is a invalid exercise of legislatively delegated authority in violation of Section 120.52(8), Florida Statutes.
Findings Of Fact The Department is an agency of the State of Florida. The Department adopted Florida Administrative Code Rule 15C- 17.005, which became effective March 3, 1996. The Rule has not been amended since its initial adoption. JM Lexus and Lexus of Orlando are both licensed franchised motor vehicle dealers in the State of Florida. Lexus of Orlando has filed a complaint in the Ninth Circuit Court, Orange County, Florida, alleging, that JM Lexus violated Rule 15C-7.005 in connection with the alleged sale for resale of new Lexus vehicles to non-Lexus dealerships. FADA and SFADA are trade associations whose members are licensed motor vehicle dealers in the State of Florida and are substantially affected by the rule. Florida Administrative Code Rule 15C-7.005 provides the following: 15C-7.005 Unauthorized Additional Motor Vehicle Dealerships - Unauthorized Supplemental Dealership Locations. An additional motor vehicle dealership, as contemplated by Sections 320.27(5) and 320.642, Florida Statutes, shall be deemed to be established when motor vehicles are regularly and repeatedly sold at a specific location in the State of Florida for retail purposes if the motor vehicle dealer transacting such sales: Is not located in this state, or Is not a licensed motor vehicle franchised for the specific line-make, or Is a licensed motor vehicle dealer franchised for such line-make, but such sales are transacted at a location other than that permitted by the license issued to the dealer by the Department. Such sales are not subject to this rule, however, when a motor vehicle dealer occasionally and temporarily (not to exceed seven days) sells motor vehicles from a location other than the motor vehicle dealer's licensed location provided such sales occur within the motor vehicle dealer's area of sales responsibility (except a motor vehicle dealer who may be deemed a licensee under this rule). For the purpose of this rule, a sale for retail purposes is the first sale of the motor vehicle to a retail customer for private use, or the first sale of the motor vehicle for commercial use, such as leasing, if such commercial motor vehicle is not resold for a period of at least ninety days. Furthermore, this rule shall apply regardless of whether the titles issued, either in this or another state, pursuant to such sales are designated as "new" or "used." An additional motor vehicle dealership established in this fashion is unlawful and in violation of Section 230.642, Florida Statutes. A licensed motor vehicle dealer of the same line-make, as the vehicle being sold in violation of this rule, may notify the Department of such violation. The notice shall include motor vehicle identification numbers or other data sufficient to identify the identity of the selling dealer and initial retail purchaser of the motor vehicles involved. Within 30 days from receipt of a request from the Department containing motor vehicle identification numbers or other data sufficient to identify the motor vehicles involved, the licensee shall provide to the Department, to the extent such information is maintained by the licensee, copies of documents showing the dealer to whom each vehicle was originally delivered, any inter- dealer transfer and the initial retail purchaser as reported to the licensee. Upon a showing of good cause, the Department may grant the licensee additional time to provide the information requested under this paragraph. Examples of good cause include, but are not limited to, request for information on more than 100 vehicles, information on vehicle sales which accrued more than 2 years prior to the date of the request, and information which is no longer maintained in the licensee's current electronic data base. Within forty days of receipt of notice from the motor vehicle dealer, the Department shall make a determination of probable cause and if it determines that there is probable cause that a violation of this rule has occurred, the Department shall mail, by certified mail, return receipt requested, to the line-maker motor vehicle dealership or dealerships involved a letter containing substantially the following statement: Pursuant to Rule 15C-7.005, F.A.C., the undersigned has received a notice that you have allegedly supplied a substantial number of vehicles on a regular and repeated basis, which were sold at a location in the State of Florida, at which you are not franchised or licensed to sell motor vehicles. If these allegations are true, your conduct may violate Florida law including, but not limited to, the above-mentioned rule, Sections 320.61 and 320.642, Florida Statutes. It may also cause you to be deemed a licensee, importer and/or distributor pursuant to Florida law and subject you to disciplinary action by the Florida Department of Highway Safety and Motor Vehicles, including fines and/or suspension of your Florida Dealer license, if applicable. The Division of Motor Vehicles is putting you on notice, if you are conducting such activity, that you cease and desist such activity immediately. If you fail to do so, this agency will take appropriate action. If the dealer supplying vehicles in violation of subsections (1) and (4) is not located in the State of Florida, the Department shall notify such dealer in writing that they may be operating as a distributor of motor vehicles without proper authorization in violation of Section 320.61, Florida Statutes, and may be violating Section 320.642, Florida Statutes. A motor vehicle dealer, whether located in Florida or not, which supplies a substantial number of vehicles on a regular and repeated basis which are sold in the manner set forth in subsection (1), shall be deemed to have established a supplemental location in violation of Section 320.27(5), Florida Statutes, and Rule 15C-7.005, F.A.C. Furthermore, a motor vehicle dealer which supplies vehicles in this manner shall be deemed to have conducted business within the State of Florida and acted as a "licensee," "importer" and "distributor" as contemplated by Section 320.60, Florida Statutes, and thus such activity shall constitute a violation of Sections 320.61 and 320.642, Florida Statutes. Furthermore, this paragraph neither imposes any liability on a licensee nor creates a cause of action by any person against the licensee, except a motor vehicle dealer who may be deemed to have acted as a licensee under this paragraph. Furthermore, no provision of this entire rule creates a private cause of action by any person against a licensee, other than a dealer who is deemed a licensee pursuant to the provisions of subsection (4) of this rule, for civil damages; provided, however, if a licensee fails to comply with the requirements of paragraph (3)(a) of this rule, the Department may bring an action for injunctive relief to require a licensee to provide the information required. No other action can be brought against the licensee pursuant to this entire rule other than a dealer who is deemed to be a licensee pursuant to the provisions of subsection (4) of this rule. Any franchised motor vehicle dealer who can demonstrate that a violation of, or failure to comply with, the provisions of subsection (4) of this rule by a motor vehicle dealer, or a motor vehicle dealer which pursuant to subsection (4) shall be deemed to have conducted business and acted as a licensee, importer, and distributor, has adversely affected or caused pecuniary loss to that franchised motor vehicle dealer, shall be entitled to pursue all remedies against such dealers, including, but not limited to the remedies, procedures, and rights of recovery available under Sections 320.695 and 320.697, Florida Statutes. Rule 15C-7.005 identifies as specific authority Section 320.011, Florida Statutes. Section 320.011 states: The department shall administer and enforce the provisions of this chapter and has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement them. The Rule lists as "Law Implemented" Sections 320.27 and Sections 320.60-.70, Florida Statutes. Sections 320.60 through 320.70, Florida Statutes, are commonly referred to as the Motor Dealers Act. Section 320.27(1)(c), Florida Statutes, provides the following definitions for a motor vehicle dealer and a franchised motor vehicle dealer: (c) "Motor vehicle dealer" means any person engaged in the business of buying, selling, or dealing in motor vehicles or offering or displaying motor vehicles for sale at wholesale or retail, or who may service and repair motor vehicles pursuant to an agreement as defined in s. 320.60(1). Any person who buys, sells, or deals in three or more motor vehicles in any 12-month period or who offers or displays for sale three or more motor vehicles in any 12-month period shall be prima facie presumed to be engaged in such business. The terms "selling" and "sale" include lease-purchase transactions. . . The transfer of a motor vehicle by a dealer not meeting these qualifications shall be titled as a used vehicle. The classifications of motor vehicle dealers are defined as follows: 1. "Franchised motor vehicle dealer" means any person who engages in the business of repairing, servicing, buying, selling, or dealing in motor vehicles pursuant to an agreement as defined in s. 320.60(1). Subsection 320.27(2), Florida Statutes, requires motor vehicle dealers to be licensed. Subsection (5) of this same provision requires that "any person licensed hereunder shall obtain a supplemental license for each permanent additional place or places of business not contiguous to the premises for which the original license is issued." Section 320.27(9) authorizes the Department to discipline motor vehicle dealers for a variety of enumerated offenses. Among those enumerated offenses is the willful failure to comply with any administrative rule adopted by the department or the provisions of Section 320.131(8), Florida Statutes. § 320.27(9)(a)16., Fla. Stat. Section 320.60, Florida Statutes, provides definitions for terms used in Sections 320.61 through 320.70, Florida Statutes. Pertinent to this case are the following: "Agreement" or "franchise agreement" means a contract, franchise, new motor vehicle franchise, sales and service agreement, or dealer agreement or any other terminology used to describe the contractual relationship between a manufacturer, factory branch, distributor, or importer, and a motor vehicle dealer, pursuant to which the motor vehicle dealer is authorized to transact business pertaining to motor vehicles of a particular line-make. * * * (5) "Distributor" means a person, resident or nonresident, who, in whole or in part, sells or distributes motor vehicles to motor vehicle dealers or who maintains distributor representatives. * * * "Importer" means any person who imports vehicles from a foreign country into the United States or into this state for the purpose of sale or lease. "Licensee" means any person licensed or required to be licensed under s. 320.61. * * * (10) "Motor vehicle" means any new automobile, motorcycle, or truck, including all trucks, regardless of weight . . . the equitable or legal title to which has never been transferred by a manufacturer, distributor, importer, or dealer to an ultimate purchaser; (11)(a) "Motor vehicle dealer" means any person, firm, company, corporation, or other entity, who, Is licensed pursuant to s. 320.27 as a "franchised motor vehicle dealer" and, for commission, money, or other things of value, repairs or services motor vehicles or used motor vehicles pursuant to an agreement as defined in subsection (1), or Who sells, exchanges, buys, leases or rents, or offers, or attempts to negotiate a sale or exchange of any interest in, motor vehicles, or Who is engaged wholly or in part in the business of selling motor vehicles, whether or not such motor vehicles are owned by such person, firm, company, or corporation. * * * (14) "Line-make vehicles" are those motor vehicles which are offered for sale, lease, or distribution under a common name, trademark, service mark, or brand name of the manufacturer of same. Section 320.61, Florida Statutes, requires all manufacturers, factory branches, distributors or importers to be licensed. Section 320.63, Florida Statutes, describes the application process for obtaining licensure for manufacturers, factory branches, distributors or importers. The section authorizes the Department to require certain enumerated information as well as "any other pertinent matter commensurate with the safeguarding of the public interest which the department, by rule, prescribes." § 320.63(7), Fla. Stat. Section 320.64, Florida Statutes, provides in pertinent part: 320.64 Denial, suspension, or revocation of license; grounds.--A license of a licensee under s. 320.61 may be denied, suspended, or revoked within the entire state or at any specific location or locations within the state at which the applicant or licensee engages or proposes to engage in business, upon proof that the section was violated with sufficient frequency to establish a pattern of wrongdoing, and a licensee or applicant shall be liable for claims and remedies provided in ss. 320.695 and 320.697 for any violation of any of the following provisions. A licensee is prohibited from committing the following acts: * * * (3) The applicant or licensee willfully has failed to comply with significant provisions of ss. 320.60-320.70 or with any lawful rule or regulation adopted or promulgated by the department. * * * A motor vehicle dealer who can demonstrate that a violation of, or failure to comply with, any of the preceding provisions by an applicant or licensee will or can adversely and pecuniarily affect the complaining dealer, shall be entitled to pursue all of the remedies, procedures, and rights of recovery available under ss. 320.695 and 320.697. Section 320.642, Florida Statutes, provides the process for a licensee to establish additional motor vehicle dealerships or to relocate existing dealerships to a location where the same line-make vehicle is presently represented by a franchised motor vehicle dealer or dealers. Section 320.642, does not, by its terms, authorize rulemaking. Section 320.69, Florida Statutes, states in its entirety that "the department has the authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this law." Section 320.695, Florida Statutes, which contains no additional grant of rulemaking authority, provides: In addition to the remedies provided in this chapter, and notwithstanding the existence of any adequate remedy at law, the department, or any motor vehicle dealer in the name of the department and state and for the use and benefit of the motor vehicle dealer, is authorized to make application to any circuit court of the state for the grant, upon a hearing and for cause shown, of a temporary or permanent injunction, or both, restraining any person from acting as a licensee under the terms of ss. 320.60-320.70 without being properly licensed hereunder, or from violating or continuing to violate any of the provisions of ss. 320.60-320.70, or from failing or refusing to comply with the requirements of this law or any rule or regulation adopted hereunder. Such injunction shall be issued without bond. A single act in violation of the provisions of ss. 320.60-320.70 shall be sufficient to authorize the issuance of an injunction. However, this statutory remedy shall not be applicable to any motor vehicle dealer after final determination by the department under s. 320.641(3). Section 320.697, Florida Statutes, which also contains no additional grant of rulemaking authority, provides: Civil damages.--Any person who has suffered pecuniary loss or who has been otherwise adversely affected because of a violation by a licensee of ss. 320.60-320.70, notwithstanding the existence of any other remedies under ss. 320.60-320.70, has a cause of action against the licensee for damages and may recover damages therefor in any court of competent jurisdiction in an amount equal to 3 times the pecuniary loss, together with costs and a reasonable attorney's fee to be assessed by the court. Upon a prima facie showing by the person bringing the action that such a violation by the licensee has occurred, the burden of proof shall then be upon the licensee to prove that such violation or unfair practice did not occur.
The Issue The issue in this case is whether Section 320.642(2)(a), Florida Statutes, permits the relocation by Petitioner General Motors Corporation (GM) of the dealership of Petitioner Buddy Foster Chevrolet, Inc. (Foster), from its present location to a new proposed location for the sale of certain line-makes of Chevrolet vehicles. In order to make that determination, the question arises as to whether Respondent Roger Whitley Chevrolet, Inc. (University), and Respondent Gordon Stewart Chevrolet, Inc. (Stewart), are already providing adequate representation for sale of the subject Chevrolet vehicles in the community or territory of the proposed Foster relocation point.
Findings Of Fact Parties GM is a “licensee” and “manufacturer” as defined by Sections 320.60(8) and (9), Florida Statutes. Foster, Stewart, and University are “motor vehicle dealers” as defined by Section 320.60(11)(a)(1), Florida Statutes. Notice and Standing On October 3, 2003, notice of GM’s intent to permit the relocation of Foster (the Proposed Relocation) from its current location at 36822 Highway 54 West, Zephyrhills, Florida (Existing Location) to a proposed location at Interstate 75 and State Road 56 in the Wesley Chapel Area (Relocation Site) was published in the Florida Administrative Weekly, Volume 29, Number 40, page 3964. Both the Existing Location and the Relocation Site are in Pasco County, Florida. Stewart is an existing franchised Chevrolet dealer who timely protested the proposed relocation of Foster. Stewart has standing to maintain that protest. University is an existing franchised Chevrolet dealer. After Roger Whitely Chevrolet, Inc., timely protested the proposed relocation of Foster, University purchased the stock of Roger Whitley Chevrolet, Inc., and changed the name of the dealership to University Chevrolet. University acquired the rights of Roger Whitley Chevrolet, Inc., to protest the proposed relocation, and has standing to maintain that protest. The Community or Territory and Recent Modifications to the Chevrolet Dealer Network The Community or Territory (Comm/Terr) relevant to this proceeding is the area defined by GM as the Tampa Multiple Dealer Area (Tampa MDA) plus the Wesley Chapel and Plant City markets.2/ There are currently four Chevrolet dealers in the Tampa MDA: Stewart, University, Ferman Chevrolet, and Autoway Chevrolet. There are currently five Chevrolet dealers in the Comm/Terr, the four Tampa MDA dealers plus Bill Heard Chevrolet (Bill Heard) in Plant City. Foster is not currently in the Tampa MDA or the Comm/Terr. The area currently assigned to Foster as its Area of Primary Responsibility pursuant to its GM franchise agreement is referred to as a Single Dealer Area (SDA), meaning that Foster is the only dealer assigned to the APR. The Proposed Relocation would add Foster as a fifth Chevrolet dealer in the Tampa MDA and a sixth Chevrolet dealer in the Comm/Terr. The Comm/Terr currently contains four full line Ford dealerships and one light-truck only Ford dealership. All other line-makes currently have four or fewer dealers in the Comm/Terr. In 2004 there were two significant changes in the Chevrolet dealer network within the Comm/Terr. In May of 2004, Bill Heard relocated to a new facility adjacent to Interstate 4, placing Bill Heard in a better position to sell into the Tampa MDA along with the expectation of both a significant increase in Bill Heard’s new vehicle sales and Chevrolet’s level of performance in the Comm/Terr.3/ In June of 2004 University purchased Roger Whitley Chevrolet, changed managers, expanded business hours, and tripled advertising expenditures. The recent ownership change is expected to result in increased new vehicle sales from the dealership and an increased level of Chevrolet performance in the Comm/Terr.4/ Proposed Relocation In the Fall of 2002, the owner of Foster, Harry M. Foster, requested that GM grant him an additional Chevrolet location in the Wesley Chapel, Florida, area. Subsequently, GM conducted a market study to determine whether it was appropriate to add a Chevrolet location in Wesley Chapel. Marvin Beaupre was assigned the task of analyzing the Wesley Chapel market and determining whether an additional Chevrolet location was justified. Beaupre’s subsequent market study revealed that Chevrolet had historically received an adequate level of representation from existing dealers in the area currently assigned to Foster in its GM franchise agreement (the dealership’s APR). Beaupre concluded that although there appeared to be a deficiency in Chevrolet performance in the Tampa MDA, the deficiency was not significant enough to justify the addition of a new dealership in Wesley Chapel. When Foster learned of GM’s decision not to add a new Chevrolet dealership in Wesley Chapel, he requested the opportunity to relocate his existing dealership in Zephyrhills, Florida, to the Wesley Chapel area. GM agreed to allow the Proposed Relocation on the basis of growth in the Wesley Chapel and New Tampa area. Currently, Foster is located in approximately the center of its APR/SDA. The Proposed Relocation would place Foster in the furthest southwestern portion of its APR/SDA, with a location immediately adjacent to the AGSSAs assigned to Stewart and University. As a result of the Proposed Relocation and the addition of Foster to the Tampa MDA, Stewart and University would be assigned new AGSSAs considerably smaller (in both geography and population) than their existing AGSSAs. The new AGSSA that would be assigned to Foster as a result of the Proposed Relocation would be larger in terms of population and sale opportunity than its existing APR/SDA. Those portions of the current Foster APR/SDA which would not be included in the AGSSA assigned to Foster after the relocation would be reassigned to the dealership immediately to the north of Foster, Dade City Chevrolet, increasing the geography, population, and sale opportunity of the Dade City Chevrolet APR/SDA. Harry M. Foster owns both Foster and Dade City Chevrolet. Is Current Representation Adequate As a result of the Proposed Relocation, certain consumers would suffer a negative impact, although some consumers would have more convenient access to a Chevrolet dealer. Consumers in the new AGSSA that would be assigned to Foster would experience an average decrease in distance to a Chevrolet dealer of 3.7 straight-line miles.5/ Contrarily, consumers in the existing APR/SDA assigned to Foster would experience an average increase in distance to a Chevrolet dealer of 4.0 driving miles, and those same consumers would experience an average increase in distance to Foster of 6.0 driving miles. Throughout the Comm/Terr, the Proposed Relocation would only result in an average decrease in the distance from a consumer to a Chevrolet dealer of .4 straight-line miles. Other than convenience, there is a second factor arising from the Proposed Relocation that could impact consumers. There will be a greater number of consumers located between Foster and Dade City Chevrolet. Consumers previously located between Foster and Stewart or University (with easier access to cross-shop between Foster and Stewart or University) would be located between Foster and Dade City Chevrolet after the relocation with convenience lying in the cross-shop between Foster and Dade City Chevrolet. Since both Foster and Dade City Chevrolet are owned and operated by the same individual, it is possible that the Proposed Relocation could result in a decrease of competition among Chevrolet dealers as it relates to some consumers, a negative impact on those consumers and on the public interest. In terms of competition between two Chevrolet dealers, convenience to the customer is the most critical factor. The Proposed Relocation would move Foster significantly closer to both Stewart and University, and to consumers served by those dealerships. In terms of straight-line distance, the Proposed Relocation would be a move of 10.7 miles. Currently, Foster is 20 straight-line miles from Stewart and 19.6 straight-line miles from University. After the relocation, Foster would be 9.7 straight-line miles from Gordon Stewart and 10.8 straight-line miles from its old location. In terms of driving time, Foster is currently 37.7 minutes from Stewart and 33.5 minutes from University. After the relocation, Foster would be 18.4 minutes from Stewart and 14.1 minutes from University. As a result of the Proposed Relocation, Foster would be significantly closer to many consumers now closer to either Stewart or University. Additionally, Foster would be significantly closer (both in straight-line distance and drive time) to a large percentage of the existing new vehicle, used vehicle, and service customers of both Stewart and University. In 2002 and 2003, Stewart and University made 40% of the sales registered in the area to which Foster would gain a convenience advantage as a result of the Proposed Relocation. There exists a statistical correlation between the size of a dealer’s AGSSA and the number of new vehicle sales made by the dealer. As the size of a dealer’s AGSSA decreases the number of sales made by the dealer will typically decrease. In this instance, based on the relative change that would result in the increased convenience of Foster to those consumers who currently find it more convenient to shop at Stewart or University and the decrease in the area in which Stewart or University would have a competitive advantage based on convenience (i.e. a decrease in each dealer’s AGSSA), a reasonable estimate of impact to Stewart from the Proposed Relocation is a loss of approximately 17% of new vehicle sales and 15% of used vehicle sales and service business.6/ A reasonable estimate of impact to University from the Proposed Relocation is a loss of approximately 16% of new vehicle sales and 15% of used vehicle sales and service business.7/ Based on Stewart’s performance in 2003, the financial losses incurred by Stewart as a result of the Proposed Relocation would be in the range of $600,000 per year. Based on the pro forma financial statement submitted to GM by University at the time of its purchase of Roger Whitley Chevrolet, Inc., the financial losses incurred by University as a result of the Proposed Relocation would be in the range of $750,000 per year.8/ The Proposed Relocation could have a significant short-term negative impact on existing dealers, including a significant financial impact on Stewart and University. GM’s expert classified short-term as up to a year, and indicated that after that period the market could adjust and existing dealers re-establish their pre-relocation level of performance. However, that dealership growth would, at least in part, be a result of general growth in the market and does not indicate that existing dealers will regain their pre-relocation level of performance in an economic sense (because they have been denied the opportunity to capture the growth that would have resulted from general market expansion). Significantly, the financial loss expected for both Stewart and University could, because of the “turn and earn” system employed by GM to determine vehicle allocation, result in a circumstance known in the automobile industry as a “death spiral,” where the dealer cannot earn vehicles because of a slow turn rate and cannot turn vehicles because it has not earned them. As the name implies, the “death spiral” results in a dealer either going out of business or having to sell the dealership. Impact on GM GM would not significantly benefit from the Proposed Relocation. Although it is clear that there has been recent growth in the Wesley Chapel area and that other manufacturers have, or plan to, establish locations in that general area, the evidence establishes that existing Chevrolet dealers are actively pursuing sales and service business in the Wesley Chapel area (including producing a significant amount of advertising for Chevrolet products) and, as noted above, that Chevrolet currently has an adequate level of convenience to customers in Wesley Chapel. The evidence does not establish that GM will enjoy increased sales or overall increased customer convenience as a result of the Proposed Relocation.9/ Existing Chevrolet dealers have historically provided an adequate level of customer satisfaction performance and have adequate facilities to serve the Comm/Terr.10/ Short-term competition between Chevrolet dealers for customers in the Comm/Terr could increase after the Proposed Relocation. The likelihood, however, that competing Chevrolet dealers will not be as successful as they have been in the past in making sales into the Wesley Chapel area if Foster is relocated, makes it highly probable that competition among Chevrolet dealers for customers in that area will actually decrease in the long-term. Existing dealers will focus their marketing efforts on areas other than Wesley Chapel. Investment of Existing Dealers The owners of Stewart and University have invested significant dollar amounts to perform their obligations under their respective GM franchise agreements. The owners of Stewart invested approximately $9,000,000 in purchasing land and constructing facilities for the dealership. The owners of University recently purchased the stock of Roger Whitley Chevrolet, Inc., and have an investment of $12,000,000 to $14,000,000 in the dealership. The Proposed Relocation would put the investment of the owners of Stewart and University at significant risk. Market Penetration A line-make’s market penetration is measured by dividing the number of that line-make’s new vehicles registered in a particular area by the total number of competitive new vehicles registered by all line-makes in the same area. In determining whether Chevrolet is currently achieving a reasonably expected level of market penetration in the Comm/Terr a reasonable standard or benchmark must first be established against which Chevrolet’s performance is compared which is neither too high nor too low. Chevrolet’s national average market penetration as a standard against which to judge Chevrolet’s current performance in the Comm/Terr is not reasonable.11/ There are several reasons why use of the national average is not appropriate to test Chevrolet’s current market penetration in the Comm/Terr. First, the national average represents a very large area (the nation), which is demographically very diverse in terms of culture, economy, politics, climate, terrain, etc. The Comm/Terr, or for that matter the State of Florida as a whole, does not share that same level of diversity.12/ Second, most manufacturers have rejected national average as a reasonable standard for evaluating dealer performance. Indeed, GM uses state average when evaluating the performance of its Chevrolet dealers.13/ The deposition testimony of William E.L. Powell, the former Zone Manager responsible for approving network changes such the Proposed Relocation, establishes that, although national average is considered, state average is the focus of GM’s analysis of whether a particular line-make as a whole is being under represented in a market. Third, the national average includes areas that are heavily influenced by special purchasing plans provided to GM employees, those employees’ family members, and employees of GM suppliers. Those plans provide participants an incentive to purchase GM products by establishing a standard price (only slightly above dealer cost) at which the participant may purchase a vehicle from any dealer in the country. It is telling that those states in which Chevrolet’s average penetration meets or exceeds what is expected based on national average are almost exclusively found in the “heartland” of America. Those states, which are the traditional home to manufacturing in this country, are also the states in which Chevrolet’s penetration performance is most likely to be positively influenced by GM’s employee and supplier purchase plans. Use by GM of the national average as a standard to judge Chevrolet’s performance in the Comm/Terr overlooks the fact that the only Florida MDA in which Chevrolet’s market penetration meets or exceeds what is expected based on national average is Pensacola, Florida. In all of the 10 other Florida MDAs, Chevrolet falls short of the expected penetration based on national average. The markets in Florida where Chevrolet does achieve the expected level of market penetration based on national average are significantly different from the Comm/Terr which is the subject of this proceeding. They tend to be more rural in location than this Comm/Terr and significantly smaller in terms of automobile retail activity.14/ In these more rural areas, the market penetration of what are traditionally considered domestic brands, such as Chevrolet, tends to be higher than in urban areas because throughout the rural areas there is a lack of representation of what are traditionally considered import brands. The appropriate standard against which to measure Chevrolet’s performance in the Comm/Terr, when judging the performance of a line-make in a Florida market, is to use that line-make’s performance in the State of Florida as a whole as the standard. Although there exist differences in the demographic, geographic, economic, and political make-up of the various communities throughout the State, Florida as a whole is much more representative of the Comm/Terr than is the Nation as a whole.15/ Chevrolet’s performance in the Comm/Terr has historically been either above or essentially at the expected level of penetration based on Florida average. In 2001, Chevrolet performed at 102.8% of the expected level. In 2002, Chevrolet performed at 99.6% of the expected level, and, in 2003, at 99% of the expected level. In those years where Chevrolet was below the expected level, the shortfall was insignificant (32 out of 7,292 expected units in 2002, and 80 out of 7,517 units in 2003).16/ More importantly, the statistics presented regarding Chevrolet’s performance during previous years do not reflect the performance of the currently existing dealer network.17/ Rather, if a reasonable level of increased performance is attributed to Bill Heard as a result of that dealership’s relocation in May of 2004 (note 3 supra), it is unquestionable that Chevrolet does now achieve its expected level of penetration in the Comm/Terr based on Florida average. As for the AGSSA that would be assigned to Foster if it relocated, Chevrolet’s level of penetration in that market has historically been slightly under its expected penetration based on Florida average. In 2001, Chevrolet performed at 94.3% of the expected level, in 2002 Chevrolet performed at 91.1% of the expected level, and in 2003 Chevrolet performed at 91.9% of the expected level. Again, the shortfall in terms of number of retail units sold was not substantial (50 out of 883 expected in 2001; 82 out of 916 expected in 2002; and 83 out of 1,018 expected in 2003). As with the Comm/Terr, if the impact of changes in the dealer network, which occurred in 2004, are considered (notes 3 & 4 supra), the shortfall in performance within the relocated Foster AGSSA disappears or becomes statistically insignificant. Thus, under the currently existing dealer network, Chevrolet’s present penetration in the relocated Foster AGSSA does not fall significantly below the Florida average. The minimal shortfall that may exist in the relocated Foster AGSSA relates to the fact that Chevrolet products do not perform as well in higher income markets as in markets with more modest incomes. This phenomenon is a factor beyond the control of the dealers within the Comm/Terr. Because Wesley Chapel is a higher income area, Chevrolet cannot be expected to perform as well in that market as in the Comm/Terr as a whole. GM Denial Of Growth Opportunity to Existing Dealers The owners of Stewart established the dealership in 1991. The dealership was established as an additional dealership location granted by GM, and GM established the exact location of the dealership. Prior to agreeing to open the dealership, Gordon Stewart, the principal owner, expressed to GM his concern that the dealership was to be located in a sparsely populated area north of Tampa. In response to Mr. Stewart’s concerns, GM reassured him that it had conducted a market study and determined that the location they had chosen was the optimal location for the dealership based on future market growth GM reasonably expected to occur north of Tampa. Based on GM’s assurances, Mr. Stewart and his partner, Arthur Smith, made considerable investment in constructing and equipping the dealership, with what they believed to be a reasonable expectation of selling approximately 2,500 new vehicles each year. The growth, however, that GM expected north of Tampa did not materialize, except for in the Wesley Chapel area. Nor has Stewart reached its projection of 2,500 new units sold per year, achieving instead only half as many sales. Because of the number of competitive dealers located south of Stewart, the dealership has had to rely on growth in the Wesley Chapel area as the basis for a significant portion of its profits and for future growth potential of the dealership, particularly as areas immediately surrounding the dealership have begun to decline. As discussed above, the Proposed Relocation would have a significant negative financial impact on Stewart and University. Additionally, the Proposed Relocation would deny Stewart the opportunity to serve the North Tampa market, which was the original purpose for establishing the dealership. GM’s approval of the Proposed Relocation would deny Stewart the reasonable opportunity for expansion and growth of its business that GM indicated would be available when Mr. Stewart and Mr. Smith agreed to invest in the dealership. Coercion of Existing Dealers There have been no efforts by GM to coerce existing dealers to consent to the proposed relocation. Distance and Accessibility Distance and travel time, between Foster and Stewart and Foster and University would be reduced by half if the Proposed Relocation were to occur. There, however, is no indication that consumers in the Comm/Terr do not already have easy access to existing Chevrolet dealers in the Comm/Terr. At present, Chevrolet currently enjoys the second lowest average distance to consumer measurement of all the line-makes represented in the Comm/Terr. The Proposed Relocation would not add any significant improvement to the ability of customers in the Comm/Terr to access a Chevrolet dealer. Benefits to Consumers Obtained by Geographic or Demographic Changes Rather than providing benefits to consumers that are not likely to be obtained by geographic or demographic changes in the Comm/Terr, the Proposed Relocation may result in a negative impact to consumers. Protesting Dealers And Dealer Agreements Compliance Stewart and University are in compliance with the terms of their dealer agreements. Adequacy of Interbrand and Intrabrand Competition and Consumer Care The high level of market penetration being achieved by Chevrolet in the Comm/Terr and the increase in that market penetration that will occur as a result of the recent dealer network changes, indicates that there is adequate intrabrand and interbrand competition in the Comm/Terr. (notes 3 & 4 supra.) As previously noted, Chevrolet’s level of convenient consumer care is among the best in the Comm/Terr. As for existing dealership facilities, the existing Chevrolet dealers in the Comm/Terr have facilities which are adequate to service the market. Relocation Justification Based on Economic and Marketing Conditions There are no economic or marketing conditions to justify the Proposed Relocation. The recent changes in the dealer network (the Bill Heard relocation and the change of ownership at University) have made this even more emphatic. Volume of Existing Dealers Registrations and Service Business The existing Chevrolet dealers are transacting a significant level of service and sales business in the Comm/Terr. In terms of retail sales volume, in 2003 Chevrolet ranked second in passenger vehicle sales and second in light- truck sales registered within the Comm/Terr.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED: That a final order be entered determining that Petitioner, General Motors Corporation, has failed to satisfy its burden of establishing that existing Chevrolet dealers are not currently providing adequate representation to the Chevrolet line-make within the community or territory of the proposed relocation, and denying the application to relocate Foster from its current location to the proposed location at I-75 and State Road 56. DONE AND ENTERED this 16th day of February, 2005 in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 16th day of February, 2005.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her gender or subjected her to a hostile work environment in violation of Section 760.10, Florida Statutes (2006).1
Findings Of Fact Petitioner is an aggrieved person within the meaning of Subsection 760.02(10). Petitioner is a female and filed a complaint with the Commission alleging that Respondent engaged in gender discrimination, sexual harassment, and the creation of a hostile work environment. Respondent is an employer within the meaning of Subsection 760.02(7). Respondent operates a car dealership and services new and used Chrysler-manufactured automobiles and trucks in the State of Florida. Respondent hired Petitioner as a lube tech in Respondent’s service department on July 26, 2006. Petitioner was the only female employee in the service department. Petitioner remained employed as a lube tech in the Quick Lube part of the service department throughout her employment and earned $7.50 per hour. Respondent did not raise or lower Petitioner’s compensation during her employment. Respondent terminated Petitioner’s employment on February 28, 2007. On March 22, 2007, Petitioner obtained employment at an automobile dealership in West Palm Beach, Florida, at an hourly rate of $13.00. Arrigo Dodge Chrysler Jeep (Arrigo) hired Petitioner as a pre-delivery inspection technician, but Petitioner voluntarily terminated that employment for personal reasons unrelated to this proceeding.2 On or about February 28, 2007, Petitioner filed a claim for unemployment compensation.3 Respondent responded to the claim on March 8, 2007. The response stated, in relevant part, that Mr. Richard Burton, the service manager and Petitioner’s immediate supervisor during her employment with Respondent, terminated Petitioner’s employment for violation of Respondent’s so-called “no-dating” policy. The no-dating policy prohibits Respondent’s employees who are managers or supervisors from dating non-management employees. The response to the unemployment compensation claim is an admission within the meaning of Subsection 90.803(18)(a). However, the admission contains two factual inaccuracies. First, Mr. Burton had no authority to hire or fire employees he supervised. Second, the no-dating policy was not a ground for the termination of Petitioner’s employment. As further described in subsequent findings, Respondent corrected the inaccuracies in the response to the claim for unemployment compensation through testimony at the administrative hearing in this proceeding. The fact-finder found the testimony to be credible and persuasive. August 3, 2007, when Petitioner filed the Charge of Discrimination, was the first time Petitioner alleged that Mr. Burton coerced her into having sexual intercourse with him on October 5 and 13, 2006, and harassed her thereafter. The Charge of Discrimination alleges in relevant part: On October 5, 2006, Richard Burton invited me out drinking with a group after work. After drinking, when all others left, he walked me to my car where he began to kiss me. I pushed him away, but he continued. I felt if I did not acquiesce, I would be fired. He grabbed my breast and put his hand down my pants. He then directed me to his car, drove across the street, exited his side of car, came to my side and had sexual intercourse with me. He then drove me back to my care [sic] and I went home crying. On October 13, 2006, Mr. Burton again invited me for drinks, and directed me to perform oral sec [sic] in the parking lot of the bar. He then attempted to have sexual intercourse with again, but could not. . . . I was invited out for drinks with Mr. Burton again, but refused. On two occasions, I was told by Richard Burton that if I did not continue our relationship, I would be fired. The treatment became terrible. Mr. Burton no longer protected me from the nasty comments of other employees, including other employees saying I was “stupid”, telling me to “go home and make babies” because that is what I was supposed to do and that I did not belong. Some of the worst comments came from Joseph Roadkit, technician, Dave Morgan, technician, Curtis, technician, and Devon, porter. I became friends with another technician, Wesley Wilkerson. On occasions when I was not busy, I would attempt to learn from him. I spend time with him as he was an experienced technician. Despite other lube techs talking to other employees when they are slow, I was disciplined in January 2007, for talking to Mr. Wilkerson. I transferred from an inside job with opportunities to learn and advancement to working outside with limited opportunities. This decision was made by Richard Burton and Tom Grabby [sic], Manager of Fixed Operations. Eventually, in February 2007, Joseph Roadkit was terminated due to his behavior. On February 24, 2007, Richard Burton invited me out for drinks for the first time in a while. I initially agreed until he advised I would have to drive him home. I advised him I could not. Mr. Burton assured me he would never fire me as I had hit his “soft spot”. I refused to go out with him. Four days later Richard Burton approached me at work with the manager of fixed operation’s wife, Patti Grabby [sic]. Mr. Burton advised me I was terminated as there was no room for me in the shop anymore. I was not the least qualified nor was I the last hired. Mr. Burton did not testify in the administrative hearing. Respondent terminated the employment of Mr. Burton, sometime after Respondent terminated the employment of Petitioner, because Mr. Burton was no longer licensed to drive, and a valid driver’s license is a job requirement of the position held by Mr. Burton. Petitioner’s testimony was the only testimony concerning the alleged coerced sexual intercourse and sexual harassment by Mr. Burton. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. Petitioner’s testimony that she was the victim of sexual coercion on October 5, 2006, is less than persuasive. Petitioner had a restricted driver’s license that authorized her to drive to and from work. Petitioner drove to a local Ale House to have drinks with Mr. Burton, Mr. Radtke, and Mr. Radtke’s wife. Everyone at the table was drinking alcoholic beverages. Petitioner consumed six alcoholic beverages in approximately four hours. Petitioner consumed two drinks identified in the record as Smirnoff Ice, a malted-rum, bottled drink, and four shots, identified in the record as vanilla vodka. After the fifth shot, Petitioner went to the bathroom, “puked up my cheeseburger and the rest of the drinks,” returned to the table, and consumed the sixth shot. The testimony of Petitioner during the hearing contains several inconsistencies with her deposition testimony, responses to discovery, and allegations in the Charge of Discrimination. Petitioner alleges in the Charge of Discrimination, “I felt if I did not acquiesce, I would be fired.” Petitioner found greater detail in her testimony during direct examination in the final hearing. Petitioner testified that after sexual intercourse in Mr. Burton’s vehicle, Mr. Burton said, “If you tell anybody, I will fire you.” The Charge of Discrimination does not allege that Mr. Burton used force to engage in sexual intercourse with Petitioner. The testimony of Petitioner during direct examination in the final hearing claims that Mr. Burton prevented Petitioner from exiting the vehicle by grabbing her hand each time she reached for the door handle. Petitioner did not seek medical treatment for rape and did not report a rape to any law enforcement agency. Petitioner viewed the alleged encounters with Mr. Burton as “dates.” Q. Did what happened between you and Richard Burton, did you consider that dating? A. Yes. Q. Why did you consider that dating? A. Because sex is sex. Transcript (TR) at 130, lines 5 through 9. The Charge of Discrimination alleges that Mr. Burton accompanied Petitioner to his vehicle on October 5, 2006, after Mr. Radtke and his wife had left the Ale House. Petitioner testified on direct examination in the final hearing that Mr. Radtke and his wife were at the restaurant while the alleged coerced sexual intercourse occurred. Petitioner testified that she agreed to meet Mr. Burton for drinks again on October 13, 2006. Mr. Radtke and his wife were again present at the restaurant. When Mr. Burton allegedly offered to accompany Petitioner to her vehicle, Petitioner did not ask Mrs. Radtke to accompany her. Petitioner testified that the alleged coerced sexual intercourse on October 5 and 13, 2006, occurred in Mr. Burton’s vehicle. Petitioner’s testimony lacks plausibility. Petitioner weighed 170 pounds at a height of five feet, six inches, and Mr. Burton weighed 194 pounds at a height of five feet, eight inches. Mr. Burton drove a Jeep Compass on both nights, the smallest of the sport utility vehicles manufactured by Jeep. On October 5, 2006, Petitioner testified that Mr. Burton placed Petitioner in the passenger side of the vehicle, told her not to open the door, walked to the other side of the car, sat in the driver’s seat, and drove to a construction site across the parking lot that was abandoned at that time of night. Q. So when he drove the car over to that construction area, how did he get you in the back seat? A. He threw me between the two seats.[4] Q. What happened next? A. Well, he went-–he came into the back. And he put my panties down to about my knees, and he put his dick in me. I’m screaming, “No. Stop.” Q. And what happened next? A. He finished and I ran pulling up my underwear to my car. The Charge of Discrimination alleges that Mr. Burton drove Petitioner back to her car after the sexual intercourse on October 5, 2006. Petitioner’s vehicle was parked in the parking lot at some distance from the construction area. The table where Mr. Radtke and his wife were sitting is in the outside bar area of the restaurant. Petitioner testified that her screams were not heard by patrons in the outside bar because the bar was crowded and noisy. Petitioner did not present the testimony of any witnesses in the outside bar who, more likely than not, would have observed Petitioner running from the construction area to her vehicle at some distance across the parking lot while Petitioner pulled her underwear up from her knees. On October 5 and 13, 2006, Petitioner remained in the passenger seat of Mr. Burton’s vehicle, with nothing preventing her from leaving the vehicle, while Mr. Burton allegedly walked from the passenger’s side to the driver’s side of the vehicle. Other inconsistencies further attenuate the testimony of Petitioner. During the final hearing, Petitioner claimed the coerced intercourse occurred on October 2 and 3, 2006. Although those dates correspond to telephone communications between Mr. Burton and Petitioner, Petitioner’s sworn Answers to Respondent’s First Set of Interrogatories, sworn statement in her Charge of Discrimination, and prior deposition testimony all allege that her contact with Mr. Burton was on October 5 and 13, 2006. Petitioner testified in the administrative hearing that on October 5, 2006, Petitioner contacted Mr. Burton to let him know that she would meet him for drinks. In her deposition, Petitioner testified that on the night of the first incident, Mr. Burton called her to confirm her attendance. Petitioner contends that Mr. Burton called her several times on the night of the second incident, both before and after the incident. The evidence clearly demonstrates that Petitioner received no telephone calls from Mr. Burton on either October 5 or 13, 2006. Petitioner testified in the final hearing that she was wearing a dress on the night of the first incident. However, in sworn Answers to Respondent’s First Set of Interrogatories, Petitioner alleges that Mr. Burton “put his hand down [her] pants.” The same allegation is reiterated by Petitioner in the Petition for Relief. In her deposition, Petitioner testified that Mr. Burton allegedly stuck his hand down her pants and that at the end of the first incident, Petitioner left pulling up her “pants and underwear.” (Emphasis supplied) Petitioner unpersuasively attempted to explain the apparent discrepancy by testifying in the final hearing that when she uses the term “pants” she is referring to her underwear. Petitioner did not avail herself of the procedures outlined in Respondent’s written No Harassment policy for complaining about discrimination, sexual harassment, or the creation of a hostile work environment. Written Equal Employment Opportunity and No Harassment policies are contained in Respondent’s Employee Handbook. The written policy specifically prohibits its employees from engaging in any verbal or physically offensive conduct and expressly prohibits offensive sexual remarks, advances, or requests. Further, the written policy explicitly describes the procedures available to a victim to report violations.5 Petitioner received the Employee Handbook and reviewed the Equal Employment Opportunity and No Harassment policies at the time of her hiring. Petitioner acknowledged in writing her receipt, review, and understanding of these policies. The evidence does not establish a prima facie showing that Respondent discriminated against Petitioner, harassed Petitioner, or created a hostile work environment. Respondent terminated Petitioner’s employment for valid business reasons unrelated to Petitioner’s gender or the alleged coerced sexual intercourse by Mr. Burton. When Respondent first employed Petitioner, Petitioner enrolled in the Chrysler Dealer Connect computer training system for Level I and II courses and examinations, which was the customary practice of new employees in the service department. Technicians such as Petitioner must complete each training course and examination to reach the next level of certification. Petitioner claims, in relevant part, that Respondent prevented Petitioner from talking to and learning from more experienced technicians. However, lube technicians such as Petitioner do not advance through the Chrysler training program by talking to service technicians. Respondent provided Petitioner with access to the Chrysler Dealer Connect training courses through a computer area in its service department. Petitioner, like other technicians, also had access to computers in management offices when available. Petitioner remained in the Chrysler Dealer Connect system up to and through February 2007. In eight months of employment, Petitioner completed Level I certification and several Level II courses. The average for Level I and II course completion and certification in the service department is three and one-half months. Respondent pays lube technicians and service technicians differently. Respondent pays lube technicians an hourly rate and pays service technicians a flat rate based on work actually completed. Respondent maintains a policy that requires lube technicians who are not busy to either clean their work area or train through the Chrysler Dealer Connect system. The policy prohibits lube technicians from training by talking to service technicians in lieu of Chrysler training. Lube technicians who socialize with service technicians reduce the production rates of service technicians and reduce the lube technicians’ Chrysler training time. Respondent repeatedly corrected Petitioner for spending her free time at work socializing with service technicians in their bays rather than utilizing the Chrysler Dealer Connect training system. The corrections were verbal, as are the majority of Respondent’s corrective measures. Chrysler requires Respondent to maintain a monthly Customer Service Index (CSI) of approximately 90 percent. A CSI is a manufacturer-distributed evaluation by consumers based on customer satisfaction with the service provided by the service department. The consequences of a low CSI is detrimental for Respondent. The Quick Lube portion of Respondent's service department has significant CSI implications because of the high volume of customer contact. Petitioner worked in the Quick Lube part of the service department during her employment with Respondent. Respondent repeatedly corrected Petitioner for noncompliance with Respondent’s “Personal Appearance” policy. Petitioner did not keep her shirt tucked in. Petitioner did not wash her hands after working on a customer’s vehicle. Petitioner did not wear a clean uniform despite having several in her possession. Petitioner did not wear her hat facing forward. Petitioner’s unprofessional appearance and her visibility at Respondent’s Quick Lube caused her to be singled out by customers to Mr. Tom Grabbe, the fixed operations manager for Respondent and the immediate supervisor of Mr. Burton. Respondent received numerous customer complaints about Petitioner’s poor quality of work and performance. In August 2007, Petitioner received three negative Customer Feedback Reports (CFRs) for poor job quality and performance. One customer waited an hour and a half for an oil change when the Quick Lube was not busy. Petitioner failed to put the oil cap back onto the engine of another customer’s vehicle. Petitioner put too much oil into the engine of another customer’s vehicle and soiled the fender of that vehicle with oil. On January 25, 2007, a fourth CFR complained about Petitioner’s poor quality of work and performance. Petitioner was using her cellular telephone while rotating tires. Petitioner also dropped a tool on the customer’s vehicle and dented the body of the vehicle. Petitioner received other customer complaints. Not every customer complaint regarding Petitioner’s poor work quality and performance was reduced to writing as a CFR. Some customer complaints that were made on-site to Respondent’s employees would not generate a CFR because the complaint was resolved immediately. Petitioner admitted to being reprimanded at least two times in addition to the previously discussed CFRs for getting grease on cars. Petitioner was also instructed to wipe dirt and grease off customer vehicles after customers complained. In January 2007, Mr. Grabbe transferred Petitioner from an interior lube bay to an exterior lube bay. The transfer was in response to complaints from service technicians that Petitioner’s numerous attempts to socialize with them was affecting their production. The transfer from an inside bay to an outside bay in the Quick Lube portion of the service department was not a demotion. Petitioner continued the duties of a lube tech. Petitioner received the same compensation she received prior to the transfer. Petitioner had the same access to the Chrysler Dealer Connect training system before and after the transfer. Respondent required male lube techs to work in both the inside and outside lube racks. In January 2007, service advisors informed Mr. Grabbe that customers continued to complain about Petitioner leaving grease on their vehicles. After Petitioner received her fourth CFR in January 2007, Mr. Grabbe instructed Ms. Wisty Fisher, the customer relations manager for the Service Department, to gather a sample of the customer complaints about Petitioner and to review the CFRs with Petitioner and Mr. Burton. Ms. Fisher and Mr. Burton both addressed the four CFRs with Petitioner in a meeting and informed Petitioner that she needed to “clean up her act” and be more aware and conscious of the customers’ vehicles. The four CFRs compiled by Ms. Fisher were put into Petitioner’s personnel file. Respondent continued to receive customer complaints regarding Petitioner. On the evening of February 27, 2007, Mr. Grabbe received a telephone call from a customer of Respondent complaining that grease and dirt had been left on his vehicle. Mr. Grabbe reviewed the service ticket number and discovered that Petitioner had been responsible for working on the vehicle. Mr. Grabbe instructed Mr. Burton to terminate Petitioner the following morning because of Petitioner’s inability to refrain from getting grease on customer vehicles. Mr. Grabbe was the sole decision-maker in terminating Petitioner’s employment with Respondent. Mr. Burton did not raise the issue of whether Respondent should terminate Petitioner’s employment. On February 28, 2007, Respondent terminated Petitioner’s employment based on Mr. Grabbe’s determination that Petitioner’s continued poor work quality and performance threatened Respondent’s CSI score. Respondent did not terminate Petitioner’s employment for violation of Respondent’s “No Dating” policy. Neither Respondent nor any of its employees had any knowledge of Petitioner dating any individual employed by Respondent until after Petitioner was terminated. Mr. Burton did not have authority to hire or fire any employee of Respondent. Mr. Burton had the authority to discipline Respondent’s employees subject to the prior approval of Mr. Grabbe. Respondent did not create or acquiesce in a hostile work environment for Petitioner. In September 2006, Petitioner was called a “stupid idiot” by one of Respondent’s employees, Mr. Richard Lawrence. Petitioner alerted Mr. Burton to the comment, and Mr. Burton reprimanded Mr. Lawrence. At the time, Petitioner lived with Mr. Lawrence. The comment by Mr. Lawrence was the only negative comment made to Petitioner prior to October 13, 2006. After October 13, 2006, the only comments which Petitioner was subjected to were from co-employees and pertained to Petitioner needing to “get back to work” and “do more stuff.” Petitioner never complained to any employee of Respondent regarding any alleged comments after October 13, 2006.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not commit the factual allegations and violations alleged in the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 13th day of November, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2008.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by James H. Peterson, Il, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, First Coast CIDR LLC, be granted a license for the sale of automobiles of the line-make Dodge (DODG) at 10979 Atlantic Boulevard, Jacksonville (Duval County), Florida 32225, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed August 6, 2010 3:47 PM Division of Administrative Hearings. DONE AND ORDERED this Yin, of August 2010, in Tallahassee, Leon County, L A. FORD, LES 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 August 2010. . . Vinayak, Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: C. Everett Boyd, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Dean Bunch, Esquire Nelson Mullins Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Benjamin C. Moore, Esquire St. Denis & Davey, P. A. 1300 Riverplace Boulevard, Suite 101 Jacksonville, Florida 32207 James H. Peterson, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue The issue presented for decision herein is whether or not Petitioner's Antiknock (octane) Index number of its petroleum product was below the Index number displayed on its dispensing pumps.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compile herein, I make the following relevant factual finding. Rafael Ruiz is the owner/operator of Coral Way Mobil, an automobile gasoline station, situated at 3201 Coral Way in Coral Gables, Florida. Ruiz has operated that station in excess of ten (10) years. On or about May 13, 1987, Respondent, Department of Agriculture and Consumer Services, received a customer complaint alleging that the fuel obtained from Petitioner's station made her automobile engine ping. Respondent dispatched one of its petroleum inspectors to Petitioner's station at 3201 Coral Way on May 14, and obtained a sample of Respondent's unleaded gasoline. Inspector Bill Munoz obtained the sample and an analysis of the sample revealed that the produce had an octane rating of 86.9 octane, whereas the octane rating posted on the dispenser indicated that the octane rating of the product was 89 octane. On that date, May 14, 1987, Respondent issued a "stop sale notice" for all of the unleaded product which was determined to be 213 gallons. Petitioner was advised by Inspector Munoz that the unleaded produce should be held until he received further instructions from the Respondent respecting any proposed penalty. On May 15, 1987, Petitioner was advised by John Whittier, Chief, Bureau of Petroleum Inspection, Florida Department of Agriculture and Consumer Services, that the Antiknock Index number of the sampled product was 2.1 percent below the octane rating displayed on the dispenser and that an administrative fine would be levied in the amount of $200 based on the number of gallons multiplied times by the price at which the product was being sold, i.e., 213 gallons times 93.9 cents per gallon. Petitioner did not dispute Respondent's analysis of the product sample, but instead reported that he had been advised that three of the five tanks at his station were leaking and that this is the first incident that he was aware of wherein the product tested below the octane rating displayed on the dispenser.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondent, Department of Agriculture and Consumer Services, enter a Final Order imposing an administrative fine in the amount of $200 payable by Petitioner to Respondent within thirty (30) days after entry of the Respondent's Final Order entered herein. RECOMMENDED this 7th day of October, 1987, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 7th day of October, 1987. COPIES FURNISHED: Rafael E. Ruiz c/o Coral Way Mobil 3201 Coral Way Miami, Florida 33145 Clinton H. Coulter, Jr., Esquire Senior Attorney Office of General Counsel Department of Agriculture and Consumer Services Room 514, Mayo Building Tallahassee, Florida 32399-0800 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0810 Robert Chastain, Esquire General Counsel Department of Agriculture, and Consumer Services Room 513, Mayo Building Tallahassee, Florida 2399-0800
The Issue Whether Petitioner's application to relocate B.O.O., Inc., d/b/a Acura of South Florida (Acura of South Florida) from its current location in Hollywood, Florida, to its proposed location in Pembroke Pines, Florida, should be approved.
Findings Of Fact Parties American Honda is a licensee and manufacturer as defined by Section 320.60(8) and (9), Florida Statutes. Acura of South Florida and Case Acura are motor vehicle dealers as defined by Section 320.60(11)(a)1., Florida Statutes. At all relevant times, Acura of South Florida's principal is Craig Zinn (Mr. Zinn); Case Acura's principals are Rick and Rita Case (Mr. Case and Mrs. Case, respectively, and collectively, the Cases). Notice and Standing With respect to notice and standing, the parties have stipulated as follows: On October 15, 2004, notice of American Honda's intent to relocate Acura of South Florida (proposed relocation) to Pembroke Pines from its current location in Hollywood was duly-noticed by publication in the Florida Administrative Weekly. Case Acura has standing to protest the proposed relocation, and timely filed its protest. The Community or Territory The parties have stipulated that the Community or Territory (generally referred to in the industry as a "comm/terr" ) relevant to this proceeding is the area defined by American Honda as the Pembroke Pines comm/terr (Pembroke Pines comm/terr or comm/terr). Both Acura of South Florida and Case Acura are located within the comm/terr, as is the proposed relocation site. The proposed relocation site is located west of both Acura of South Florida and of Case Acura. The Proposed Relocation and Related Market Studies Case Acura is, at all relevant times, centrally located in Ft. Lauderdale in Broward County, Florida. Major Broward County traffic arteries provide ready access to Case Acura from the north, south, east and west within the comm/terr. Acura of South Florida is located south of Case Acura, and just north of the Broward County line. Unlike Case Acura, Acura of South Florida does not offer customers ready access from any direction within the comm/terr. Both Case Acura and Acura of South Florida are located well east of the proposed location. From time to time, as circumstances warrant, American Honda evaluates specific existing or proposed comm/terrs, including the Pembroke Pines comm/terr, by performing a so-called market study. American Honda's market studies are an integral part of the company's strategic and long-range planning process. American Honda's market studies are conducted by teams of experienced and appropriately credentialed experts (market study team(s)). With reference to this case, market studies in the Pembroke Pines comm/terr were conducted in 1997 and again in 2003. The proposed relocation grew out of the results and recommendations of the 1997 market study team. The same results and recommendations were reached again by the 2003 market study team, based upon updated information concerning relevant data which emerged between the two market studies. Both studies documented that Broward County's population had been and would continue for the foreseeable future to "trend west" within the comm/terr. This westward population trend has been and is predicted to continue and to be particularly pronounced among affluent households. Because American Honda manufactures luxury vehicles under the Acura brand, American Honda and its dealers seek to "capture" or "conquer," i.e. attract the business, of such households, while maintaining their existing customer base of affluent households. The teams which conducted both market studies determined that the present configuration of Acura dealers within the comm/terr (dealer network) did not provide adequate representation for American Honda's Acura brand (adequate representation). The lack of adequate representation was a function of the westward population trend. To remedy the situation, and in accordance with Florida law concerning dealer relocation, both market study teams reasonably recommended that Acura of South Florida be relocated to western Broward County. The recommendation was not implemented following the 1997 market study; at that time, and for some years before and after, the owners of Acura of South Florida (Mr. Zinn's predecessors) were beset by illness and management difficulties, and not in a position to undertake the recommended relocation. Likewise American Honda was not in a position to force a relocation upon Acura of South Florida, because it had neither contractual rights nor statutory rights to do so. The 2003 market study team revisited the comm/terr in order to verify or refute the conclusions and recommendations of the 1997 study team in light of all that had transpired since 1997. Upon careful consideration of updated data, the 2003 study team reasonably concluded that the dealer network as it was then configured still failed to afford adequate representation. American Honda's market study teams, as a matter of course, conduct informal interviews with all dealers in the comm/terr when assembling market study data. The 1997 and 2003 market study teams followed this practice. During the 2003 interview with him, Mr. Case was asked whether he would like to move his dealership. Mr. Case replied unambiguously that he was well-satisfied with his present location, where he had become one of Acura's most successful dealers. It is noted that Acura dealers are permitted to market and to sell Acuras anywhere, both within and without the comm/terr in which they are located. The Cases have taken particular advantage of this opportunity, a factor which contributes to Case Acura's significant profitability. Dealer input, and the present success or lack thereof of dealers within a comm/terr, are data considered by market study teams in the context of all the other data. Upon consideration of all relevant data, including the input of the dealers within the Pembroke Pines comm/terr, the 2003 market study team adhered to the conclusion of the 1997 team and recommended implementation of the relocation of Acura of South Florida as proposed in 1997. As Acura of South Florida and American Honda set out to implement the relocation recommendation, Mr. Case had a change of heart and came forward to insist that he was entitled to be the dealer to be relocated. He also insisted that Acura of South Florida remain where it was. In support of these late- asserted demands, Mr. Case testified that he had previously been informed by the "zone manager" for the comm/terr, one Ray Mikiciuk (Mr. Mikiciuk) that Case Acura (and not Acura of South Florida) would be relocated. According to Mr. Case, Mr. Mikiciuk was authorized by American Honda to so advise Mr. Case on American Honda's behalf. Mr. Case also claims that Case Acura would have been the dealership relocated but for a threat by Mr. Zinn to sue American Honda should Case Acura be relocated. Contrary to Mr. Case's testimony regarding the foregoing, the persuasive evidence established that since 1997, American Honda executives supported the market study recommendations for the Pembroke Pines comm/terr, including the proposed relocation. Mr. Mikiciuk is a low level employee; there is no persuasive evidence that Mr. Mikiciuk ever had authority to speak for American Honda with reference to dealer relocations, let alone to bind the company. These facts were well known to Mr. Case. Mr. Case had unfettered access to the highest level American Honda executives over decades of mutually lucrative dealings with American Honda and related subsidiaries. Mr. Case had no reluctance to use these open lines of communication with regard to matters of minor as well as major importance to Case Acura. Yet, he now posits that American Honda, speaking through zone manager Mikiciuk, intended to overrule its 1997 and 2003 market study teams and relocate Case Acura, and reneged only because of Mr. Zinn's threat to litigate. The foregoing scenario is charitably described as counterintuitive. No corroborating evidence was provided. Mr. Case's testimony concerning his dealings with American Honda in regard to the proposed relocation is uncorroborated, unbelievable, and not credited by the fact-finder. Mr. Zinn initiated his purchase of Acura of South Florida in the spring of 2003. By the time the transaction was finalized in December 2003, anticipated future change(s)-- including the westward population trend identified in the 1997 market study--had become substantially more pronounced. Other changes had developed, or were reasonably anticipated to develop in the foreseeable future. For example, Acura of South Florida is presently and permanently foreclosed from providing customers and staff even the basic amenity of on-site parking, inasmuch as the Florida Department of Transportation (DOT) has taken by condemnation a 23-foot strip along the entire dealership frontage. Thirty parking places have been lost. Signage advising the public that they had reached Acura of South Florida is no longer permitted. At its present location, it is impossible for Acura of South Florida to be brought into compliance with Acura's so-called Design Image Standards (DIS) because the dealership property is too small to allow for the expansion required by DIS. American Honda and its network of dealers deem implementation of DIS at every dealership to be crucial to Acura's future success or failure in the marketplace. Additionally, the dealership is a prime candidate to be declared a "non-conforming use" by local zoning authorities. Such designation would render it impossible to obtain necessary permits to make needed improvements in the future. An Objective, Reasonable Standard In order to assess the adequacy of representation afforded by the existing dealer network in the comm/terr and to measure the level of opportunity available in the market, it is necessary to develop an objective, reasonable standard against which to compare the actual market penetration achieved by the existing dealer network, which includes, in this case, Acura of South Florida and Case Acura. A standard is a measure of the level of performance a brand can reasonably expect to achieve in the market with an adequately performing dealer network; that is, an adequate number of dealers performing competitively. The most objective data available for measuring the performance of a dealer network is market penetration data. Market penetration is the ratio of a brand's performance against the competitive industry. Market penetration is a direct measure of both inter-brand and intra-brand competition. Intra- brand competition is competition between competitors of the same brand. Inter-brand refers to competitors of different brands. The first step in developing a reasonable standard is to select a suitable comparison area. When choosing a comparison area, it is essential to select an area that is itself adequately represented. In determining whether a proposed comparison area is adequately represented, national average market penetration is an extremely conservative benchmark, because it includes all of the adequately represented, inadequately represented, and unrepresented areas within the United States. By contrast, the State of Florida is not an appropriate standard comparison area against which to judge the performance of Acura in the Pembroke Pines comm/terr because at relevant times the brand performs below national average in Florida. This is so because Florida has a disproportionate number of areas in which Acura has no dealer representation as well as a disproportionate share of underperforming dealers. National average market penetration is, under all the facts and circumstances of this case, the appropriate starting point for developing a reasonable standard for the Acura brand. The national average must be adjusted, however, to take into account unique consumer preferences over which the dealer network has no control, which can affect market share. Unique consumer preferences in the local market can be accounted for through a process called segmentation analysis. In this process, groups of vehicles in the segments to be analyzed are far more comparable with each other than with other vehicles not in the segments. Consequently, segments contain a group of similar vehicles that, by their design and physical characteristics, meet a certain set of consumer transportation needs. American Honda arranges its Acura vehicles into seven segments: small sporty, sporty luxury coupe, mid-size luxury sedan, full size luxury sedan, near luxury, exotic, and mid- luxury. The segmentation analysis process employed by American Honda accurately reflects the demographic features--including age, income, and education--of consumers who have actually purchased the vehicles in Acura's seven segments. In addition, the segmentation analysis employed by American Honda takes into account other factors which are unrelated to any particular consumer. Such factors include the state of the economy, product quality, and design features. Under all the facts and circumstances revealed in the record, the national average performance for Acura as adjusted for local consumer preferences in the Pembroke Pines comm/terr (the expected standard) is the appropriate standard for measuring the adequacy of representation being provided by existing Acura dealer networks and for establishing the level of opportunity available to Acura dealers in the Pembroke Pines comm/terr. At all relevant times, national average penetration, adjusted for local consumer preferences, produces an expected standard in the comm/terr of 10.58 percent, while the comm/terr is 10.3 percent of the retail industry segments in which Acura competes. For the year 2005 through June 30, the expected standard for the Pembroke Pines comm/terr is 11.37 percent while the Pembroke Pines comm/terr is 10.92 percent of the retail industry segments in which Acura competes. The reasonableness of the expected standard is confirmed by the fact that Acura has achieved or exceeded the standard in the recent past or currently meets or exceeds the standard in several markets in Florida; a sixth market in recent years has missed the standard only once, by four-tenths of a point in 2004. The persuasive data established that the expected standard is reasonable and can be achieved in the comm/terr if the Acura brand is adequately represented. Taking the foregoing factors into account, national average, adjusted for local consumer preferences, is the appropriate standard by which to judge the adequacy of representation being provided by the existing Acura dealer network and the level of opportunity available in the comm/terr. Impact on Manufacturer American Honda's Acura brand is, at relevant times, losing available sales in the comm/terr due to the inability of the existing Acura dealer network to penetrate the comm/terr at reasonably expected levels in light of the opportunity available. The persuasive evidence established that the gap between reasonably expected levels of penetration and the actual dealer network performance will grow. Taking reasonably anticipated future changes into account, the evidence of record established that the manufacturer will enjoy increased sales and overall increased customer convenience as a result of the proposed relocation. Investment of and Potential Impact Upon Existing Dealers Mr. Zinn and the Cases have invested significant dollar amounts to perform their obligations under their respective American Honda/Acura franchise agreements. They have likewise invested significant sweat equity, and expect to continue to manage their dealerships in a hands-on manner. The Cases contend that their investment in their Acura dealership will be at risk should the proposed relocation proceed. There was no persuasive evidence to support this contention. Rather, Case Acura is well positioned; well capitalized; and highly likely to respond positively to inter-brand competition arising from the proposed relocation. The Cases are aggressive and highly experienced dealers. It is reasonable to anticipate that the Cases will not lose sales; profit; reasonable opportunity for growth; or growth in the value of their multi-million dollar investment in Case Acura. Likewise, other existing dealers in the comm/terr are reasonably expected to grow and to maintain the value of their investments if the proposed relocation goes forward. Additionally and more specifically, the evidence is sufficient to establish that existing dealers in the comm/terr will be positively impacted by increased sales and service opportunities if the proposed relocation goes forward. Based upon the foregoing, the evidence is sufficient to establish that the proposed relocation is warranted and justified based on economic and marketing conditions, including future changes and present, accelerating trends in the comm/terr, which continues to grow rapidly in terms of population and of affluent households, which factors present increased sales and service opportunity for dealers. These opportunities are likely to be captured if the proposed relocation goes forward, and unlikely to be captured if it does not. Coercion of Existing Dealers There have been no efforts by American Honda to coerce any existing dealer to consent to the proposed relocation. Protesting Dealer Compliance with Dealer Agreement Case Acura is at all relevant times in compliance with the terms of its dealer agreement. Distance and Accessibility Congested traffic conditions in the western portion of the comm/terr militate heavily in favor of the proposed relocation. The proposed relocation will provide consumers with an increased level of convenience, and stimulate inter-brand competition. The market studies and common sense demonstrate that affluent consumers will not travel substantial distances to purchase an Acura when a variety of other luxury cars are more conveniently available. Other luxury vehicle dealers have taken note of the rapid growth of affluent homes in west Broward, and have provided and continue to provide improved accessibility. Acura's current dealer network in the comm/terr has not kept pace with American Honda's need to offer its existing and prospective customers an adequate level of accessibility, convenience and service. Benefits to Consumers Obtained by Geographic or Demographic Changes The evidence is sufficient to establish that consumer benefits will occur as a result of the relocation of Acura of South Florida. Such benefits cannot be obtained by expected demographic or geographic changes in the comm/terr. Adequacy of Interbrand and Intrabrand Competition and Consumer Care The evidence is sufficient to establish that the performance of Acura in the comm/terr is below reasonable levels under the appropriate standard, thereby reflecting inadequacy of inter-brand and intra-brand competition. With regard to consumer convenience, the evidence is sufficient to establish that it is necessary to locate a dealership within in the western portion of the comm/terr, where existing and potential Acura customers have moved and continue to move in large numbers, in order to provide them adequate customer care, including sales and service facilities. Relocation Justification Based on Economic and Marketing Conditions The evidence is sufficient to establish that the proposed relocation is warranted and justified based on economic and marketing conditions, including future changes. Western Broward County continues to grow at a rapid rate in terms of affluent population, households, and increased sales and service opportunities which are likely to be captured if the proposed relocation goes forward. Volume of Existing Dealers Registrations and Service Business The evidence is sufficient to establish that the volume of registrations and service business is hindered by the present configuration of the dealer network in the comm/terr, and that the volume of registrations and service business by existing Acura dealers in the comm/terr will improve if the proposed relocation goes forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles issue a final order approving American Honda's application to relocate Acura of South Florida. DONE AND ENTERED this 25th day of October, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 25th day of October, 2006. COPIES FURNISHED: James D. Adams, Esquire Adams, Quinton & Paretti, P.A. 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Alan N. Jockers, Esquire Craig Zinn Automotive Group Corporate Offices 2300 North State Road 7 Hollywood, Florida 33021 Dean Bunch, Esquire Sutherland, Asbill & Brennan, LLP 3600 Maclay Boulevard, South, Suite 202 Tallahassee, Florida 32312-1267 Fred O. Dickinson, III, Executive Director Department of Highway, Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Judson M. Chapman, General Counsel Department of Highway, Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0635
The Issue Whether or not the agency may, pursuant to Section 525.06 F.S., assess $390.04 for sale of substandard product due to a violation of the petroleum inspection laws and also set off that amount against Petitioner's bond.
Findings Of Fact Coleman Oil Co., Inc. d/b/a Shell Oil Co. at I-75 and SR 26 Gainesville, Florida, is in the business of selling kerosene, among other petroleum products. On November 15, 1990, Randy Herring, an inspector employed with the Department of Agriculture and Consumer Services and who works under the direction of John Whitton, Chief of its Bureau of Petroleum, visited the seller to conduct an inspection of the petroleum products being offered for sale to the public. Mr. Herring drew a sample of "1-K" kerosene being offered for sale, sealed it, and forwarded it to the agency laboratory in Tallahassee where Nancy Fisher, an agency chemist, tested it to determine whether it met agency standards. The testing revealed that the sampled kerosene contained .22% by weight of sulfur. This is in excess of the percentage by weight permitted by Rule 5F- 2.001(2) F.A.C. for this product. A "Stop Sale Notice" was issued, and on the date of that notice (November 20, 1990) the inspector's comparison of the seller's delivery sheets and the kerosene physically remaining in his tanks resulted in the determination that 196 gallons of kerosene had been sold to the public. Based on a posted price of $1.99 per gallon, the retail value of the product sold was determined, and the agency accordingly assessed a $390.04 penalty. The agency also permitted the seller to post a bond for the $390.04 on November 21, 1990. The assessment is reasonable and conforms to the amount of assessments imposed in similar cases.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the $390.04 assessment and offsetting the bond against it. DONE and ENTERED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 25th day of April, 1991. COPIES FURNISHED TO: CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 510 MAYO BUILDING TALLAHASSEE, FL 32399-0800 MR. RANDAL W. COLEMAN COLEMAN OIL COMPANY POST OFFICE BOX 248 GAINESVILLE, FL 32602 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by terminating Petitioner because of his age and in retaliation for complaining about age discrimination, or whether, instead, Respondent had a legitimate non-discriminatory reason for terminating Petitioner that was not a pretext for discrimination or retaliation.
Findings Of Fact Petitioner is a male whose date of birth is June 23, 1958. Petitioner completed high school and had specialized training in welding. He has been working since he was 14 years old and has a varied employment history. Before 2006, Petitioner was a welder for a few months with Gencor Industries. He left that position because of what he described as unsafe working conditions. Before working for Gencor, he was a warehouse manager and shop foreman for Structural Waterproofing, but was terminated when he had a disagreement with the boss. Before that job, he was self- employed in construction and photography. In 2006, Petitioner was hired as a sales consultant with the Holler Classic Group, a car dealership. Petitioner had never had a job in car sales previously, but had worked as a travel agent for 13 years. He explained that there was no money to be made in travel anymore, but he heard that there was money to be made in car sales, so he thought he would try it. Petitioner left Holler Classic after about two years, because he found it was getting hard to compete against salespersons who he claimed "were being given deals by management." Petitioner was hired on July 11, 2008, as a sales associate at Courtesy Chevrolet on West Colonial in Orlando. Courtesy Chevrolet is an employer within the meaning of the Florida Civil Rights Act and is a subsidiary of Respondent AutoNation. Petitioner was hired by Courtesy Chevrolet as an at-will employee. The terms of his employment were that he would be paid by commissions earned on car sales and would be given a draw against commissions so that there would be compensation in case there were periods of low sales. According to Petitioner, there was no fixed amount of cars he had to sell, except that, as he acknowledged, "[y]our commissions had to outdo your draw[.]" In other words, Petitioner understood that while the draw might cover an occasional low-sales month, there could not be continual low-sales months such that earned commissions were not sufficient to cover the draw. Petitioner also testified that shortly after he started at Courtesy Chevrolet, in August 2008, the manufacturer, General Motors (GM) imposed a rule that required car salesmen to sell at least six cars per month. Petitioner testified that he was aware this rule went into effect in August 2008, but that he did not think that the new rule applied to him, because he believed he was under the "old system." No evidence was presented to establish that certain car salespersons were allowed to continue under an "old system" that was exempt from the new minimum monthly sales quota. Instead, the more credible, consistent testimony of all witnesses, besides Petitioner, was that the six-car minimum monthly sales quota applied to all dealerships with GM franchises and to all car salespersons at Courtesy Chevrolet, including Petitioner. When Petitioner began working at Courtesy Chevrolet, the general manager was Paul Letso, who was eight or nine years older than Petitioner. Shortly thereafter, Mike Taylor was hired as the sales manager, and he was Petitioner's supervisor. Mike Taylor also was older than Petitioner, approximately 59 years old. Right away, Petitioner had problems working as a car salesman at Courtesy Chevrolet. Within a month or so after starting, he complained of "theft of my commissions" by other employees. He first spoke with the local human resources person at the dealership. She told him to report the problem to Bibi Bickram, who was the head of human resources for the region. Petitioner was given Ms. Bickram's cell phone number, and he contacted her, reaching her while she was at an airport. She got back with him a month later and told him that his manager, Mike Taylor, was handling the complaint. However, Mr. Taylor denied having heard about it, and Petitioner was not happy with the handling of his complaint. When Petitioner was first hired, he underwent training and orientation and was given a large amount of material, including an AutoNation Code of Business Ethics and an Associate Handbook, for which Petitioner signed acknowledgement forms. The form that Petitioner signed to acknowledge receipt of the Code of Business Ethics informed Petitioner that he had a number of options for reporting complaints, problems, or suspected violations of the code, of the law, or of any company policies. These options included notifying a manager, contacting someone in AutoNation's corporate or regional human resources departments, or calling the ACT-AlertLine. The ACT-AlertLine is a third-party administered, tip/complaint hotline where problems or complaints regarding any AutoNation dealership can be raised, anonymously or otherwise. The toll-free number for the ACT-AlertLine was provided in the document signed by Petitioner. In addition, the undisputed testimony was that flyers with the ACT-AlertLine are on display at the Courtesy Chevrolet employee break room. There was no credible evidence that before Petitioner was notified that he was being terminated, Petitioner ever utilized any of these options to notify anyone of problems or complaints, except for the single instance discussed above when Petitioner called Ms. Bickram's cell phone to complain about theft of his commissions. Petitioner's first full calendar quarter at Courtesy Chevrolet was October to December 2008. Based on his sales figures for his first full quarter, Petitioner was given a documented verbal counseling for inadequate work performance, followed by a written corrective action record. In pertinent part, this record provided: Facts and Events: Your performance for the months of October, November and December of 2008 were below target. They were as follows: ** October - you saw 20 customers, sold 1 unit - 5% closing ** November - you saw 22 customers, sold 3 units - 13.6% closing ** December - you saw 15 customers, sold 2 units - 15.1% closing Dealership closing percentage is 27%. Due to your low performance, it has negatively impacted your income and you are currently in the rears [sic: arrears] $2751.54. Required Improvement: The level of performance is below target and you must take action to improve. As a Sales Associate of Courtesy Chevrolet West Colonial, you are responsible for utilizing the company's processes and tools while maintaining an acceptable level of performance. You must maintain a 20% closing ratio each month. . . . Failure to achieve sustained improvement in units sold or other performance issues related to your role as Sales Associate . . . will result in further disciplinary action up to and including termination. Petitioner signed this corrective action record, without commenting in the space provided. At the final hearing, Petitioner claimed that some of the sales figures may have been incorrect, although Petitioner was not specific in this regard and presented no evidence to support his vague claim. Petitioner's claim, more than two years after the fact, is not credible, in light of Petitioner's failure to attempt to correct any errors that may have been in the report at the time he signed it or to otherwise complain about errors in his sales figures. Petitioner acknowledged that he was having trouble meeting his sales goals, but claimed that it was because he "was being harassed" by Paul Letso and Mike Taylor. Petitioner admitted that this asserted harassment had nothing to do with age discrimination, as he was substantially younger than either one of his managers. Petitioner claimed that these two older managers were always trying to blow up his deals, such as by starting arguments with Petitioner in front of potential customers. Business was not good in the auto industry during the time that Petitioner was employed by Courtesy Chevrolet in 2008 and 2009. Overall, there was a lot of consolidation in the industry and staff reductions. Several Chrysler dealerships closed as a result of Chrysler's bankruptcy, including two AutoNation dealerships in the region: Courtesy Chrysler Jeep in Casselberry and Courtesy Chrysler Jeep in Sanford. Other dealerships were under pressure as well. As noted above, one example of how the industry pressures came to bear on the dealerships was the establishment by GM of a new requirement in August 2008 that all car salespersons at its franchise dealerships had to sell at least six cars each month. Courtesy Chevrolet was not doing well. By May 2009, the general manager of Courtesy Chevrolet (one of the managers whom Petitioner claimed had been harassing him), was terminated. In June 2009, several managers and sales associates from the closed Chrysler dealerships were brought over to Courtesy Chevrolet, consolidating the sales forces. Todd Tyree, former manager of the Casselberry Chrysler dealership, was made general manager of Courtesy Chevrolet. Mr. Tyree, though young--in his 30s--had nearly 20 years of experience in the car dealership business, with substantial managerial experience. He was charged with the task of overhauling the dealership to upgrade its facilities, improve its operations, and conform its processes to AutoNation standards, which had been loosely followed or not followed at all previously. Two former managers from the Sanford Chrysler dealership, Mike Stachowicz and Ryan Matthews, were brought over to serve in managerial/supervisory positions in the sales department. Mr. Stachowicz was in his late 40s, approximately three years younger than Petitioner, with 28 years of experience in the car business. Mr. Matthews was younger, but he still had seven years' experience in the car business. The three managers embarked on an immediate effort to tighten up on procedures, spruce up the facilities, review and evaluate employees, and work with the sales staff to turn around the performance of the dealership. According to Petitioner, a sales meeting was held the day after the new managers arrived at Courtesy Chevrolet. Petitioner claims that at this meeting, Mr. Tyree stated that he wanted a young, aggressive sales staff. Petitioner stated that all three of the new managers were present at this meeting and that there were a number of other witnesses to the statement. Despite Petitioner's claim that there were many witnesses to Mr. Tyree's statement, no witness corroborated Petitioner's claim. Mr. Tyree denied making that statement and his testimony was credible in this regard. Messrs. Stachowicz and Matthews confirmed that they never heard Mr. Tyree make such a statement, although according to Petitioner, they were present at that meeting. Petitioner did not produce any other witness who could support Petitioner's claim that the statement was made. There is no evidence that Petitioner complained to anyone in the human resources department, to someone at the dealership, at a regional or national AutoNation office, or even anonymously to the ACT-AlertLine, right after Petitioner claimed the statement was made by Mr. Tyree on June 6, 2009. The first mention by Petitioner of the alleged statement by Mr. Tyree about a "young, aggressive" sales staff was after Petitioner received a monthly sales associate evaluation on June 15, 2009, putting in writing to him for the second time that improvement was needed for his sub-par sales performance; after Petitioner received another monthly sales associate evaluation on July 8, 2009, giving him the lowest rating of "below target" in the categories of meeting sales objectives and meeting profit objectives; and after Petitioner received a "final warning" counseling and corrective action record on July 13, 2009, reporting another three-month period of below-par sales and commissions that did not cover Petitioner's draw. Petitioner's June 15, 2009, evaluation was signed by Ryan Matthews, who was the general sales manager. It indicated that Petitioner had only "sometimes" achieved acceptable performance goals for sales and profit margins, a grade of "C" on a scale of "A" to "D." The evaluation comment was that one-on-one training was needed to improve performance. Mr. Matthews confirmed that he conducted one-on-one training sessions with Petitioner, including sales menu training, which focuses on how numbers are presented to customers; and training in product knowledge, an area found to be critically lacking at this dealership when the three new managers arrived. However, Mr. Matthews testified, as did the other new managers, that Petitioner was not at all receptive to training, improvement, or doing anything to change how he was used to doing things. Instead, he was stubbornly resistant to change and very combative with the new managers. Petitioner apparently resented being told that he was not performing up to standards and needed to improve. Petitioner tacitly acknowledged the new managers' point by testifying that he did not understand how the new managers could come in and evaluate sales associates after only a few short days at the new dealership and expressing skepticism that they could have any kind of meaningful perspective. However, it should have been clear to Petitioner from his prior evaluation, counseling, and corrective action record issued by the prior management team that the focal point for the dealership, and the measure of his performance, would, in large part, be on sales statistics: how many cars were sold and how big was the profit margin. The recent sales information for Petitioner that was available for the new management team to review in June 2009 showed that Petitioner was credited with selling a total of 10.5 cars during the months of February, March, April and May 2009. His best month, and the only month in his employment history with Courtesy Chevrolet in which the evidence showed that he met a six-car sales minimum, was in March 2009, when he sold six and one-half units. In February, he sold three cars; in April, he did not sell a single car; and in May, he sold one car. After Mr. Tyree arrived at Courtesy Chevrolet, he had Petitioner sign a written acknowledgement memorializing the GM requirement that sales associates had to sell six cars each month, with a rolling average of 18 cars every three months. Mr. Tyree testified that he had all of the Courtesy Chevrolet sales associates sign the form that he had utilized at his prior dealership to impress upon them what they already should have been aware was the requirement imposed by GM for the dealership.3/ As noted above, Petitioner was indeed aware of this requirement, acknowledging that GM adopted this rule in August 2008, although Petitioner continued to assert that he was somehow exempt. The monthly sales associate evaluation signed by Petitioner on July 8, 2009, was signed by Mike Stachowicz. This evaluation of continued low sales production, as well as low profit-per-vehicle, was based on Petitioner's sales performance in the month of June 2009, during which he sold two cars. By the end of June 2009, Petitioner had the highest amount of arrears (draws exceeding earned commissions), more by far than any other salesperson at Courtesy Chevrolet. Petitioner signed this evaluation and wrote the following comment on it: "WILL BE FILING COMMENTS BY NEXT WEEK." Petitioner did not elaborate, or explain the nature of the comments he intended to file. Petitioner's consistent sub-par performance continued, as did his resistance to changing how he went about his business so as to be open to improving his performance. For example, despite the fact that Saturdays are the busiest days of the week for car sales, Petitioner took off Saturdays once a month to pursue his hobby of bird-watching. While the new management was willing to accommodate Petitioner's request, the expectation was that Petitioner would be receptive to making changes to improve his car sales, whether it be giving up his bird-watching Saturdays or making up for it in other ways. When this did not happen, Petitioner received his "final warning" and corrective action record on July 13, 2009, from Michael Stachowicz. This record summarized Petitioner's below-target performance in April, May, and June, with an average car sale of only one car per month. The report reminded Petitioner: "You must maintain a level of 6 units sold monthly." Petitioner remained in arrears by several thousands of dollars. Petitioner signed this record, and his sole written comment in the space provided for comments was: "WILL BE FILING COMPLAINT SOON." Petitioner did not explain his comment or volunteer any information about the nature of the complaint he was going to file. The corrective action record signed on July 13, 2009, stated that there would be a meeting in 30 days to evaluate Petitioner's progress and review his "implementation of specific actions to improve units sold." However, after just a few weeks in which the managers saw no sign of any specific actions being taken by Petitioner to improve his overall performance and no change in his attitude with regard to being resistant to change and combative, Mr. Tyree made the decision to terminate Petitioner's employment. Through the month of July, Petitioner's three-month rolling average was 2.166 units per month, well below the target of six units per month, and Petitioner was still in arrears by several thousands of dollars. Indeed, there was no evidence presented that Petitioner ever earned more commissions, for any period of time, than he took out in draws.4/ The termination action record was signed July 31, 2009, which was Petitioner's last day of employment, and he was terminated effective August 1, 2009. On August 3, 2009, a written complaint by Petitioner that he sent on July 28, 2009, to the AutoNation Human Resources Department in Fort Lauderdale, Florida, was received and provided to the ACT-AlertLine to log in. The complaint was then turned over to Bibi Bickram, the human resources specialist, to conduct an investigation. This written complaint by Petitioner was a five-page, single-spaced, rambling diatribe, which lobbed assorted accusations of harassment by the three new managers at Courtesy Chevrolet. The complaint alleged that Mr. Tyree "gawked" at another employee; that the female employee who was "gawked" at had violated safety regulations by coming to work in flip flops; that Michael Stachowicz showed favoritism to another female employee; that some salespersons had to work more hours than other salespersons; that one employee was absent too much; that gay customers had been made fun of; and that some employees have already been given evaluations by the new managers that had "no reflections on actual reality." Ms. Bickram conducted a thorough investigation in which she interviewed numerous sales associates, reviewed records, talked to the managers, contacted Petitioner to see if he wanted to add anything, and then prepared a detailed report that analyzed, point by point, each and every complaint raised in Petitioner's written complaint. Ms. Bickram found all of the complaints unsubstantiated, with the exception of one complaint regarding scheduling inequity, found to be partially substantiated and corrected. None of the complaint issues raised and investigated had anything to do with age discrimination. Months later, in October 2009, in connection with proceedings regarding Petitioner's entitlement to unemployment compensation, Petitioner prepared another detailed document setting forth a timeline of his view of events at Courtesy Chevrolet. This document was also logged in with the ACT-AlertLine and turned over to Ms. Bickram as a follow-up complaint to the written complaint received on August 3, 2009. The October 2009 timeline document included Petitioner's claim that in a June 6, 2009, sales meeting, the day after Mr. Tyree assumed the position of general manager, he had allegedly stated that he wanted a "young, aggressive sales staff." This claim was investigated for the first time by Ms. Bickram as part of her follow-up complaint investigation; Petitioner did not include this allegation in the July 28, 2009, written complaint. Ms. Bickram's report, issued on December 4, 2009, found that in her interviews of numerous sales associates regarding the sales meetings conducted by the new general manager, none of the associates mentioned anything about inappropriate comments. Ms. Bickram also interviewed Mr. Tyree and reported that he denied making any such statement. Further, Ms. Bickram noted that the "current sales staff ranges in age from 33 to 54," so there had been no youth movement under the new management, as one would assume would have occurred following that alleged statement. Petitioner submitted to the FCHR as part of his complaint in 2010 and offered into evidence at the hearing, a two-page letter from Petitioner to "Bebe" in human resources. On the first page, the date is typed in as "July [day obscured], 2009." On the second page, just above Petitioner's signature, the following date reference is typed in: "Post dated July 9, 2009 to be changed and signed at a later date." In this letter of uncertain actual date, Petitioner reported to "Bebe" that since his first verbal complaint to her "regarding thief [sic] of my money," he had "been subject [sic] to NON-STOP harassment" including the following itemized examples: Deliberately blowing deals by 2 General Managers, 2 General Sales managers and 3 Sales Managers. Prejudice towards GAY customers. . . Lying to customers. Having other employees, who were friends of Ian M. Simpson's, harassed and written up . . . At a meeting on June 6, 2009, Todd Tyree made a comment which insulted most of the employees at the meeting. He stated that he wanted a young and aggressive, sales staff. . . . Petitioner testified that he hand-wrote the number "13" in the date on the first page so that the letter was dated July 13, 2009. However, a handwritten date, whether 13 or some other number, cannot be discerned on the letter admitted into evidence. Petitioner's testimony was that he put the letter on Ms. Bickram's desk in her office at the Courtesy Chevrolet dealership on July 13, 2009. Petitioner claims to have personally laid the letter on her desk. While Petitioner said that he "never saw [Ms. Bickram] in the office," he also claimed that he "saw her later on that day reading the complaint." He admits he did not discuss the complaint with her at that time, stating that he "thought she would have to have time to review it." Petitioner's testimony regarding his delivery of the letter on July 13, 2009, was not credible. Ms. Bickram testified that she never received the letter Petitioner claims to have left for her on her desk. Ms. Bickram explained, credibly, that she is in her office that she maintains at Courtesy Chevrolet one or two times per week and that when she is not in the office, even if she is just out for lunch, she keeps the office locked. Others do not enter her office to leave her mail or to take items from her desk; she uses her other office at a different Courtesy location as the primary office where she receives and processes her mail. Therefore, it would not have been possible for Petitioner to have entered her office when she was not there, as he claimed, to leave a letter on her desk. It is also not credible that Petitioner would not have attempted to discuss the complaint with Ms. Bickram if, as Petitioner claimed, he had seen her reading the letter later that day. Petitioner had recently received two sub-par evaluations from the new management, and on that same day, Petitioner had received his "final warning" based on his failure to approach meeting the stated sales target of six cars per month. Petitioner had to know, with nothing but sub-par performance evaluations, below-target sales, and consistent draws exceeding commissions, his time was running out. The more credible testimony and evidence establish that Petitioner did not lodge his complaint of an age-related comment by Mr. Tyree until well after Petitioner was terminated, and that claim was contrived and not genuine. With the exception of Petitioner's claim of a single age-related comment attributed to Mr. Tyree and found not credible, Petitioner presented no direct or circumstantial evidence of any discrimination against him based on his age. To the contrary, Petitioner complained equally about harassment by former managers who were older than he and by the new management team who were younger than, or about the same age as, Petitioner. Petitioner claimed that younger and older managers alike tried to blow up his sales, started arguments with him while he was with customers, gave deals away to other salespersons, and were to blame for Petitioner's consistent sub-par sales performance and Petitioner's consistent failure to earn enough commissions to cover his draws. Petitioner's complaints have nothing to do with his age; instead, Petitioner's complaints are his attempt to blame all others, young and old alike, for his consistent failure to achieve the work performance standards set by Respondents. No credible evidence was presented to establish that Petitioner's termination was in retaliation for Petitioner's complaint about age discrimination. The more credible evidence established that Petitioner did not communicate any complaint about age discrimination until after he was given his termination notice. After Petitioner was terminated from Courtesy Chevrolet, he was hired as a car salesman at Toyota of Orlando, He started working there on December 15, 2009. After about a month and a-half, he was terminated. The reason for Petitioner's termination was not established in the record. Petitioner has been unemployed since being terminated by Toyota of Orlando and has gone back to school. No evidence was presented regarding Petitioner's efforts, if any, to obtain substantially equivalent employment, besides his brief experience with Toyota of Orlando.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Ian Simpson's Petition for Relief. DONE AND ENTERED this 25th day of August, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2011.
