The Issue The issue in this case is whether Vista Motors' new BMW dealership at 4401 West Sample Road, Coconut Creek, resulted from a relocation and reopening of Vista Motors' former BMW dealership at 700 North Federal Highway, Pompano Beach, in compliance with Section 320.642(5)(b), Florida Statutes, which grants certain "reopening" dealers an exemption from protest.
Findings Of Fact In 1996, Intervenor BMW of North America, LLC ("BMW NA")2 unveiled a "market strategy" to all of the BMW dealers doing business in Palm Beach, Broward, and Miami-Dade Counties (hereafter, collectively, the "South Florida Dealers") whereby each of them would be granted an additional or "satellite" BMW dealership3 provided, among other conditions, that each dealer agreed to waive its protest rights under Section 320.642, Florida Statutes, with regard to these satellite dealerships.4 The South Florida Dealers comprised three distinct business enterprises, which were often identified with reference to their respective principals: Norman Braman, Charles Dascal, and J. S. Holman. Mr. Braman held interests in BMW dealerships located in Miami and West Palm Beach. One of Mr. Braman's companies was (and is) Petitioner Palm Beach Imports, Inc., d/b/a Braman Motorcars ("Braman"), which is the dealer operating in West Palm Beach. Mr. Dascal held interests in BMW dealerships located in Broward County and in Miami. One of Mr. Dascal's companies was (and is) Intervenor Pompano Imports, Inc., d/b/a Vista Motors ("Vista"), which operated a BMW dealership in Pompano Beach until October 7, 2003, and now does business as a BMW dealer in the City of Coconut Creek, Florida. Mr. Holman was a principal in Ft. Lauderdale Imports, Ltd. ("Lauderdale"), a dealer doing business in Ft. Lauderdale. For ease of reference the South Florida Dealers will be referred to individually as Braman, Vista, and Lauderdale.5 As originally conceived and formally presented to the South Florida Dealers in December 1996, BMW NA's market strategy called for Braman to be awarded a satellite dealership in Delray Beach, a municipality which is situated in the southern part of Palm Beach County, on the coast. Vista and Lauderdale, under the original plan, would have been offered satellite locations in Broward County west of the Turnpike. BMW NA and the South Florida Dealers never reached an agreement regarding this particular strategy, however, because Vista objected to the proposed Braman satellite in Delray Beach. Notwithstanding the absence of an agreement involving all of the South Florida Dealers, at some point in 1997 Vista and BMW NA revisited the possibility, which had been discussed from time to time over the past several years, of relocating Vista's BMW dealership in Broward County from its Pompano Beach location to a better location. Vista's facility in Pompano Beach, whose street address was 700 North Federal Highway ("N. Federal Hwy"), had become outdated and cramped, having been built decades earlier, and BMW NA and Vista wanted Vista to have a larger, more modern shop. Also, moving westward would place the dealership closer to Interstate 95 and the Turnpike, making it more accessible to customers. Thus, relocation made sense for a number of reasons. In mid-1997, BMW NA approved a plan to move Vista's BMW dealership to a location in the City of Coconut Creek, Florida, which is in western Broward County. Acquiring the property to which Vista's dealership would relocate took time. An initial deal fell through due to title defects. In late 1998, Vista entered into a contract to purchase the "Lyons Creek piece," an 11-acre parcel located near the intersection of West Sample and Lyons Roads in Coconut Creek. A few months later, by letter dated March 24, 1999, BMW NA notified Braman that Vista had requested permission to relocate its dealership to this property. In the meantime, Vista launched another project: the expansion of its service department at 700 N. Federal Hwy. To accomplish this, Vista rented property, via a lease dated February 1, 1999, from a neighboring automobile dealership operated by Daewoo Motor America, Inc. ("Daewoo"). The Daewoo dealership's address was 744 N. Federal Hwy. Through its lease with Daewoo, Vista obtained the right to use 24 "work stalls" located in an automobile service center at 744 N. Federal Hwy. This arrangement increased Vista's service capacity, allowing the BMW dealership to handle a larger volume of the lucrative maintenance and repair business than had previously been possible. Vista's customers probably were not aware of the expansion, however, since all consumer transactions continued to take place at 700 N. Federal Hwy. By letter dated May 12, 1999, BMW NA notified Respondent Department Of Highway Safety and Motor Vehicles (the "Department") that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to the Lyons Creek piece. BMW NA and Vista took the position that, pursuant to Section 320.642(5), Florida Statutes,6 the proposed reopening of Vista's dealership at the new location in Coconut Creek should not be considered subject to competing dealers' administrative protests. Vista finally obtained title to the Lyons Creek piece in March 2000. Throughout the rest of the year 2000, Vista proceeded to take steps towards relocating its BMW dealership, having architectural plans for the new facilities drawn up and applying for the necessary permits. In late 2000, a new opportunity arose for Vista. A piece of property located at 4401 West Sample Road ("W. Sample Rd") in Coconut Creek became available at an attractive price. This property, which comprised approximately 19 usable acres, suited Vista's needs better than the Lyons Creek piece because, in addition to being larger, it included existing dealership facilities, having once been the location of an AutoNation dealer. Within a short time, Vista entered into a contract to purchase the property at 4401 W. Sample Rd. Now, plans to relocate Vista's BMW dealership to the Lyons Creek piece were shelved in favor of moving to AutoNation's former location. In July 2001, Vista acquired title to the land and buildings at 4401 W. Sample Rd. While Vista worked to ready the property at 4401 W. Sample Rd for use as a BMW dealership, it also pursued a deal to purchase the Daewoo property at 744 N. Federal Hwy, which was adjacent to its existing dealership. In May 2002, Vista reached a verbal agreement to buy this real estate, but Daewoo's bankruptcy complicated the deal. Litigation to enforce the oral contract ensued. In August 2002, BMW NA signed a letter of intent approving Vista's request to relocate its BMW dealership to 4401 W. Sample Rd. Soon thereafter, by letter dated September 13, 2002, BMW NA notified the Department that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd in Coconut Creek. Just as in May 1999, BMW NA and Vista took the position that this relocation should be considered exempt, pursuant to Section 320.642(5), Florida Statutes, from the protest provisions of Section 320.642. Pursuant to Section 320.642(1)(d), Florida Statutes, the Department caused BMW NA's September 13, 2002, notice of relocation to be published in the September 27, 2002, edition of the Florida Administrative Weekly. On September 27, 2002, also in accordance with Section 320.642(1)(d), the Department mailed copies of BMW NA's September 13, 2002, notice of relocation to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. Within two weeks, however, the Department mailed letters to these same dealers explaining that the proposed reopening of Vista's BMW dealership at 4401 W. Sample Rd would not be a "protestable" event after all. In November 2002, BMW NA presented the South Florida Dealers with a draft Market Action Agreement in an attempt to resurrect the market strategy that had died on the vine in 1996. The draft agreement referred to the relocation of Vista's dealership to 4401 W. Sample Rd, which was under way, and raised the possibility of Vista's resuming BMW dealership operations at 700 N. Federal Hwy at some unspecified point in time after the pending relocation. Specifically, the draft contract stated: Prior to the execution of this Agreement, Vista Motor Company has requested that BMW NA approve a relocation of its BMW [dealership] from [700 North Federal Highway] to a facility that is under development at 4401 West Sample Road, Coconut Creek, Florida (the "Sample Road Location"). This request has been approved and BMW NA provided notice of the relocation to the [Department]. It also has been approved by the [Department]. Immediately upon completion of this relocation from [700 North Federal Highway] to the Sample Road Location, the North Federal Highway Location will become an additional proposed location that is the subject of this agreement not to protest. The draft Market Action Agreement offered Braman the opportunity to open a satellite dealership in north Palm Beach County, suggesting the Town of Jupiter as the likeliest spot. Braman had already determined that zoning restrictions in Jupiter effectively forbade the opening of an automobile dealership there, however, and Braman was not interested in establishing a satellite dealership in another area north of its West Palm Beach site, preferring instead to open an additional BMW dealership in Delray Beach, which BMW NA would not approve. Thus, Braman rejected the draft Market Action Agreement of November 2002. In March 2003, BMW NA notified Braman that the proposed Market Action Agreement had failed for lack of the South Florida Dealers' unanimous consent and that BMW NA intended to move forward anyway on plans to establish satellite dealerships for Vista and Lauderdale. Braman was invited to pursue the opportunity to open a satellite dealership in north Palm Beach County. By letter dated April 14, 2003, Vista formally requested BMW NA's permission to open a satellite dealership at 744 N. Federal Hwy, where the Daewoo dealership had been located. Vista had not yet secured title to that property but was getting close. Vista asked that it be allowed to "operate out of the current facility" at 700 N. Federal Hwy if the effort to purchase the Daewoo property failed, "provided [the current facility] is renovated in accordance with BMW corporate identity standards." On April 29, 2003, BMW NA and Vista entered into a Letter of Intent authorizing Vista to open a satellite dealership at the "Satellite Location," which was defined as 700 N. Federal Hwy and 744 N. Federal Hwy. This Letter of Intent called for Vista to sell new BMW automobiles at 744 N. Federal Hwy and to sell "Certified Pre-Owned" (used) vehicles at 700 N. Federal Hwy. By letter dated May 5, 2003, BMW NA notified the Department that Vista planned to establish an additional or "supplemental" BMW dealership at 744 N. Federal Hwy, to be opened on or after June 30, 2003. As required by statute, the Department not only caused a notice to be published in the May 16, 2003, edition of the Florida Administrative Weekly regarding this putative supplemental dealership, but also it mailed copies of BMW NA's May 5, 2003, notice to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. No dealer timely protested Vista's intended opening of a supplemental dealership at 744 N. Federal Hwy. Ordinarily, following an "unprotested" notice, the Department enters a final order authorizing the issuance of a license for the proposed additional or relocated dealership upon the applicant's satisfaction of all other requirements for licensure. In this case, however, before the entry of such an order, the Department learned that 744 N. Federal Hwy and 700 N. Federal Hwy were contiguous properties. Based on this information, the Department informed BMW NA and Vista, by letter dated July 10, 2003, of its decision that because Vista was still operating a BMW dealership at 700 N. Federal Hwy, and because 744 N. Federal Hwy was immediately adjacent to the existing dealership, the proposed supplemental dealership at 744 N. Federal Hwy would be deemed an "expansion" of the existing dealership, as opposed to an "additional" dealership. The Department further concluded that: (1) a license was not needed and hence would not be issued for the expansion of Vista's dealership into 744 N. Federal Hwy; (2) the opening of the dealership that Vista proposed to establish at 4401 W. Sample Rd, which would come into being as Vista's existing dealership expanded, could not be considered exempt from protest, as previously thought, for no "relocation" would be occurring; and (3) notice and an opportunity to protest would need to be provided with respect to 4401 W. Sample Rd before a license for an additional dealership at that location could be issued. BMW NA and Vista each requested a hearing to challenge the Department's findings and conclusions, initiating, respectively, DOAH Case Nos. 03-2969 and 03-2970. These cases were subsequently consolidated, and Braman was allowed to intervene in them. On September 18, 2003, while the above-mentioned administrative litigation was pending, Vista filed an application with the Department for modification of its license, to reflect the relocation of Vista's BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd. Vista asserted that the planned reopening at 4401 W. Sample Rd would not be subject to protest, noting in its cover letter to the Department, dated September 12, 2003, that BMW NA had previously "notified [the Department] of the applicability of [the Section 320.642(5)] exemption via correspondence . . . dated September 13, 2002."7 On September 30, 2003, before the final hearing in the consolidated administrative proceeding, the Department, BMW NA, and Vista (but not Braman) entered into a settlement agreement. Upon being advised of the settlement, the presiding administrative law judge (not the undersigned) closed DOAH's files in Case Nos. 03-2969 and 03-2970 and relinquished jurisdiction to the Department. Pursuant to the referenced settlement agreement, Vista notified the Department by letter dated October 7, 2003, that Vista would cease all BMW dealership operations at 700 N. Federal Hwy at the close of business that day and would commence BMW dealership operations at 4401 W. Sample Rd on October 8, 2003. Promptly upon receipt of this notice, the Department modified Vista's motor vehicle dealer license to permit Vista to conduct BMW dealership activities at 4401 W. Sample Rd. This modification effectively "de-licensed" Vista as a BMW dealer at 700 N. Federal Hwy. On October 7, 2003, as promised, Vista stopped selling and servicing BMW automobiles at 700 N. Federal Hwy. and moved its dealership to 4401 W. Sample Rd.8 To effect the move, Vista relocated its inventory of new and used BMW vehicles, along with other line-make used automobiles that had been taken in trade for BMW vehicles, plus BMW-specific equipment, tools, and parts. Employees of Vista's BMW dealership were transferred to the new worksite. On October 8, 2003, Vista started selling and servicing BMW passenger cars and BMW light trucks at 4401 W. Sample Rd.9 It is undisputed that from October 8, 2003, through the final hearing in this cause, Vista did not conduct any BMW- related dealership operations at the N. Federal Hwy location. In other words, Vista's BMW dealership was continuously "closed" during that period of time.10 By letter dated October 15, 2003, in accordance with the settlement agreement referenced above, the Department notified BMW NA and Vista that it intended not to issue Vista a license to operate a BMW dealership at 744 N. Federal Hwy unless and until (a) Vista first relocated to 4401 W. Sample Rd and thereafter BMW NA gave the Department another notice of its intent to allow Vista to open a dealership at 744 N. Federal Hwy, which notice would, upon publication, create a new point of entry for substantially affected dealers to protest the latter project; and (b) all other legal requirements for licensure were met, including the failure of any protest that might timely be filed. BMW NA and Vista each timely challenged the Department's preliminary determination, initiating DOAH Case Nos. 03-4250 and 03-4277, respectively, which were consolidated and tried together before the undersigned on February 10, 2004. The resulting Recommended Order urged the Department to proceed in accordance with its previously announced intention. See BMW of North America, LLC v. Department of Highway Safety and Motor Vehicles, DOAH Case Nos. 03-4250 and 03-4257, 2004 WL 833605, *10 (Fla.Div.Admin.Hrgs. Apr. 15, 2004). On May 3, 2004, the Department adopted the Recommended Order as its Final Order. See Final Order No. HSMV 04-224-FOF-DMV (Fla.Dept. H.S.M.V. May 3, 2004). As of the final hearing in this case, no new notice had been provided to the Department of BMW NA's intention to permit Vista to establish an additional BMW dealership at 700- 744 N. Federal Hwy. Nevertheless, the evidence introduced at hearing shows that, as of early May 2004, BMW NA and Vista were still planning for Vista someday to open a BMW dealership at the former location. Vocabulary To facilitate the ensuing discussion, it will be helpful to develop a vocabulary tailored to the facts and issues presented. As used herein, the term "source site" will refer to the location (i.e. the place) from which a dealership has been, or will be, moved. Thus, 700 N. Federal Hwy is (or is claimed to be) a source site. The term "source dealership" shall mean a dealership that will be relocated to another place. Thus, a source dealership exists, as such, only at a source site. In this case, the BMW dealership that Vista operated at 700 N. Federal Hwy until October 7, 2003, was (or is claimed to have been) a source dealership. The term "target site" shall refer to any location to which a source dealership has been, or will be, moved. Here, then, 4401 W. Sample Rd is (or is claimed to be) a target site. A dealership established, or proposed to be opened, at a target site will be called a "target dealership." Thus, a target dealership exists, as such, only at a target site. Vista's presently licensed BMW dealership at 4401 W. Sample Rd is (or is claimed to be) as target dealership. It should be kept in mind that the terms "source dealership" and "target dealership" refer to two sides of the same coin——not to two separate coins. This is because, to speak of relocating or moving a dealership from one place to another is to imply, necessarily, that the source dealership and the target dealership are in some meaningful senses the same dealership (call it the "source-target dealership"), located first at one place (the source site), then at another (the target site). Indeed, § 320.642(5) requires that the reopening dealership be the same dealership11 (if it is not a successor dealership12) for the exemption to apply.13 The bottom line is, if the source dealership and the target dealership are not the same dealership, then the exemption cannot apply. Id. Imagining the source-target dealership as a unity is difficult, however, because one of the chief characteristics that define any dealership is its location. (Other distinguishing features include, without limitation, the identity of the dealer and the line-make vehicles being offered for sale.) Indeed, most people would consider a dealership located at one place to be separate and distinct from a dealership located somewhere else, even if the two were owned and operated by the same dealer and authorized to sell the same line-make vehicles. Of course, location cannot be moved, which raises the question: How can the source dealership and the target dealership really be the same dealership? Without attempting to answer that question completely, it is clear that maintaining the unity of the source-target dealership requires minimally that the source-target dealership have an effective market presence——that is, be licensed to operate and open for business——at but one place at a time, either the source location or the target location. In other words, however this "coin" is ultimately defined, logically it must be, at any given moment, either "heads" up or "tails" up, not heads and tails simultaneously. Therefore, whatever else a true "relocation" entails, i.e. however that term and its cognates are ultimately defined, it can be said at a minimum that a true relocation is not complete until the source dealership disappears as such, having been turned into the target dealership. One more term before moving on: "backfill dealership" shall refer to a dealership that is or will be: (a) opened at a source site after the relocation from that site of the source- target dealership; (b) owned and operated by, or under the effective control of, the same dealer who owns and operates or effectively controls the source-target dealership, which dealership is now present in the marketplace solely as a target dealership; and (c) offering for sale the same line-make vehicles as the source-target dealership. In this case, the BMW dealership that Vista plans to open at 700-744 N. Federal Hwy would be a backfill dealership. Having formulated a vocabulary, the central disputes in this case can easily be identified. It should be readily apparent that an attempt to establish a backfill dealership calls into question the genuineness of the previous relocation of the source-target dealership from the source site to the target site. This is because the opening of a backfill dealership results in the market presence of two symbiotic dealerships——an outcome not obviously distinguishable from that which would obtain if, instead of relocating the source-target dealership, the dealer had simply opened an additional dealership to complement his existing dealership. Put another way, to continue with the earlier metaphor, the net result is the presence of two coins where before there was one. The question thus becomes whether these coins should be labeled, respectively, (a) backfill dealership and source-target dealership or (b) existing dealership and additional dealership. Incipient Policies BMW NA and Vista are the first distributor and dealer to attempt to execute an exempt relocation-backfill maneuver in Florida. In the course of responding to the issues raised by this novel use of Section 320.642(5), the Department has developed several policies that interpret this exemption as applied to the facts at hand. For purposes of discussion, the relevant incipient policies can be fairly described14 as follows: A dealership that is opened at a site contiguous to the source site from which a source dealership of the same line-make was relocated will be treated as a backfill dealership, provided the two dealerships are under common ownership or control. Establishing a backfill dealership does not necessarily defeat a prior claim of relocation-exemption; rather, under certain circumstances, a dealer can take advantage of the relocation-exemption and also establish a backfill dealership. A backfill dealership does not defeat a prior claim of relocation-exemption if the following requirements are met: There was a "relocation in fact" of the source dealership from the source site to the target site. A "relocation in fact" has occurred when, at a minimum, all of the following have happened: The source dealership's license was modified to show that dealership operations are now permitted only at the target site. Dealership operations at the source site completely stopped (i.e. the source dealership closed and did not reopen in the ordinary course of business). There was an actual, physical move that entailed, but was not necessarily limited to, the relocation of inventory to the target site. Notice regarding the establishment of the backfill dealership was given to the Department after the "relocation in fact" had occurred. Dealership operations at the source site were not resumed (i.e. the backfill dealership did not open to the public for business) until after the protest period associated with the backfill dealership formally concluded and a license authorizing the backfill dealership was issued. Braman's Theory of the Case The linchpin of Braman's theory of the case is its contention that, for a relocation to fall within the Section 320.642(5) exemption, the distributor and the dealer claiming the exemption must have formed, as of the date of notifying the Department about the relocation, a specific intent regarding the dealer's future plans vis-à-vis the source site——or at least they must not have formed certain intentions relative thereto. Stating the requisite intention affirmatively, Braman suggests that the distributor and dealer must intend to "abandon" the source site, i.e. to leave the source site with the intention of never again establishing another dealership there of the same line-make as the source dealership. Alternatively, Braman argues that, at a minimum, the distributor and dealer must not have formed the intention of opening a backfill dealership. On the foregoing premise, Braman argues that BMW NA and Vista never intended for Vista to "relocate" its BMW dealership to 4401 W. Sample Rd within the strictures of Section 320.642(5), because they intended, alternatively, (a) for Vista's BMW dealership at N. Federal Hwy to remain open and never close; (b) for Vista's BMW dealership at N. Federal Hwy to open simultaneously with the opening of a BMW dealership at 4401 W. Sample Rd; or (c) for Vista's BMW dealership at N. Federal Hwy to open as soon as possible after the opening of a BMW dealership at 4401 W. Sample Rd. Braman asserts that the intentions of BMW NA and Vista render the BMW dealership at 4401 N. Federal Hwy ineligible for the relocation-exemption. Braman then goes a step farther, contending that BMW NA's September 13, 2002, notice to the Department, which announced that Vista would relocate its BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd, was false and even fraudulent. Proof of this alleged deception, according to Braman, reached the Department in May 2003 in the form of BMW NA's notice regarding the proposal to establish Vista's backfill dealership at 744 N. Federal Hwy. Braman claims that when the Department received Braman's May 5, 2003, notice, it should immediately have published a notice in the Florida Administrative Weekly that Vista's BMW dealership at 4401 W. Sample Rd was subject to protest. Although Braman has expended a great deal of effort trying to depict BMW NA's September 13, 2002, notice as "false" and accusing BMW NA and Vista of intentionally deceiving the Department regarding their "true" plans, Braman's "deception theory" is subordinate to its contention that the relocation- exemption can only be claimed properly by distributors and dealers having a specific intent. That Braman's "deception theory" is dependent on its "specific intent theory" is shown by observing that if the specific intent theory were legally correct, and if further (as Braman asserts) BMW NA and Vista did not in fact have the requisite specific intent, then it would be irrelevant whether BMW NA and Vista also sought to deceive the Department15, for their intentions regarding 700-744 N. Federal Hwy would render Section 320.642(5) inapplicable, no matter what.16 On the other hand, if Braman were wrong concerning the specific intent requirement it advocates, then BMW NA's notice to the Department regarding the relocation of Vista's BMW dealership could not have been false in the way Braman contends it was. In short, then, Braman effectively has staked its case on the proposition that the relocation-exemption requires a specific intent. The deception theory lends little, if any, support to Braman's primary position and therefore will not be given further attention herein. That said, Braman's "specific intent theory" logically concedes an important point, by necessary implication, which is that backfill dealerships do not necessarily defeat prior assertions of the relocation-exemption. This is because if the establishment of a backfill dealership always undid the dealer's previous reliance on the relocation-exemption, thereby exposing his target dealership to protest, then the dealer's intentions regarding the source site, whatever they might have been, would never be relevant. Simply put, to urge explicitly (as Braman does) that having the "wrong" intentions regarding the source site makes Section 320.642(5) inapplicable is to admit implicitly that harboring the "right" intentions regarding the source site keeps alive the possibility that the dealer can take advantage of the relocation-exemption and also establish a backfill dealership some day. Consequently, having put all of its eggs in the specific intent basket, Braman is not in a position to disagree with the Department's Incipient Policy "B" as described above.17 Indeed, while Braman has taken issue broadly with most of the Department's incipient policies, its only promising lines of attack proceed along two fronts. One is a somewhat secondary thrust: Braman complains that the Department's incipient policies permit the opening of a backfill dealership within 12 months after the closure of the source dealership, which opening (Braman argues) would itself be exempt from protest under Section 320.642(5). Thus, Braman asserts that the Department's Incipient Policy "C(3)," which purports to make backfill dealerships "protestable," contravenes the plain statutory language. With regard to this point, while the possibility certainly exists, it is not altogether clear that the Department would permit a backfill dealership to open within 12 months after the closure of a source dealership, because the Department has not been confronted with such a scenario. Moreover, there is no reasonable possibility that Vista will open a BMW dealership at 700-744 N. Federal Hwy on or before October 7, 2004. Therefore, although Braman has raised an interesting question about Incipient Policy "C(3)," which the undersigned will revisit below, the issue cannot be outcome determinative, because it addresses a contingency that has not occurred (and will not occur) in this case. Braman's real dispute with the Department, when all is said and done, is that the Department has chosen not to impose the specific intent requirement that Braman champions. Indeed, with the possible exception of some modifications to Incipient Policy "C(3)" to correct for the potential problem just identified, Braman could not object to the Department's incipient policies if they included a "C(1)(d)" as follows: As of the date the Department was notified about the relocation, the distributor and the dealer who claimed the relocation- exemption either specifically intended for the dealer to leave the source site and never again open another dealership there of the same line-make as the source dealership or, alternatively, had no intentions of establishing a backfill dealership. The question whether Braman's specific intent theory holds thus becomes the threshold legal issue. If the answer were negative, then Braman cannot prevail here.18 If the answer were affirmative, it would then be necessary to make ultimate factual determinations regarding BMW NA and Vista's intentions concerning 700-744 N. Federal Hwy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order confirming that Vista's new BMW dealership at 4401 W. Sample Rd, having resulted from the relocation and reopening of Vista's former BMW dealership at 700 N. Federal Hwy, which reopening occurred within 12 months after the closure of the former dealership and at a location meeting the geographical requirements of Section 320.642(5)(b), Florida Statutes, cannot be considered an additional motor vehicle dealership subject to protest. DONE AND ENTERED this 10th day of September, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 10th day of September, 2004.
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 Petitioners' notice of intent to establish a supplemental motor vehicle dealership was effective to commence the statutory protest period, which must be completed as a necessary condition of licensure.
Findings Of Fact By letter dated September 13, 2002, Petitioner BMW of North America, LLC ("BMW NA") notified Respondent Department Of Highway Safety and Motor Vehicles (the "Department") that Petitioner Pompano Imports, Inc., d/b/a Vista Motors ("Vista"), intended to relocate its dealership, where BMW cars and light trucks were being sold and serviced, from 700 North Federal Highway in Pompano Beach ("Source Site") to 4401 West Sample Road in Coconut Creek ("Target Site").1 BMW NA and Vista took the position that, pursuant to Section 320.642(5), Florida Statutes,2 the proposed reopening of the "relocatee-dealership"3 at the Target Site should not be considered subject to competing dealers' administrative protests. Pursuant to Section 320.642(1)(d), Florida Statutes, the Department caused BMW NA's September 13, 2002, notice of relocation to be published in the September 27, 2002, edition of the Florida Administrative Weekly. On September 27, 2002, also in accordance with Section 320.642(1)(d), the Department mailed copies of BMW NA's September 13, 2002, notice of relocation to all existing BMW passenger car dealers and BMW light truck dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. Within two weeks, however, the Department mailed letters to these same dealers explaining that the proposed reopening of Vista's relocatee- dealership at the Target Site would not be a "protestable" event after all. A little more than seven months later, by letter dated May 5, 2003, BMW NA notified the Department that Vista planned to establish an additional or "supplemental" dealership for selling and servicing BMW cars and light trucks at 744 North Federal Highway in Pompano Beach (the "Supplemental Site"), a parcel which is contiguous to the Source Site where the relocatee-dealership then remained open for business, the previously announced relocation having not yet taken place. As required by statute, the Department not only caused a notice to be published in the May 16, 2003, edition of the Florida Administrative Weekly regarding this putative supplemental dealership, but also it mailed copies of BMW NA's May 5, 2003, notice to all existing BMW passenger car dealers and BMW light truck dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. No dealer timely protested Vista's intended opening of a supplemental dealership at the Supplemental Site. Generally speaking, after the Department has received notice from a licensee or applicant regarding the latter's intent either to establish an additional dealership or to relocate an existing dealership, and after such notice has been duly published in accordance with Section 320.642, Florida Statutes, the Department routinely enters a final order authorizing the issuance of a license for the proposed additional or relocated dealership upon the applicant's satisfaction of all other requirements for licensure, unless a timely protest is filed, in which case final agency action must be taken pursuant to Chapter 120.4 In this case, however, by letter dated July 10, 2003, the Department informed BMW NA and Vista of its decision that because the putative relocatee- dealership was still doing business at the Source Site, and because the Supplemental Site was immediately adjacent to the Source Site, the proposed supplemental dealership would be deemed an "expansion" of the putative relocatee-dealership, as opposed to an "additional" dealership. Based on this determination, the Department concluded in its July 10, 2003, correspondence that: (1) a license would not be issued for the expansion of Vista's dealership into the Supplemental Site; (2) the opening of the dealership that Vista proposed to establish at the Target Site, which would come into being as the putative relocatee-dealership expanded, could not be considered exempt from protest, for no "relocation" would be occurring; and (3) notice and an opportunity to protest would need to be provided with respect to the Target Site before a license for an additional dealership at that location could be issued. BMW NA and Vista each requested a hearing to challenge the Department's findings and conclusions, initiating, respectively, DOAH Case Nos. 03-2969 and 03-2970. These cases were subsequently consolidated. On September 30, 2003, before the final hearing in the consolidated proceeding, the Department, BMW NA, and Vista entered into a settlement agreement. Upon being advised of the settlement, the presiding administrative law judge (not the undersigned) closed DOAH's files in Case Nos. 03-2969 and 03-2970 and relinquished jurisdiction to the Department. Pursuant to the referenced settlement agreement, the Department, on October 7, 2003, approved Vista's application to relocate its BMW passenger car and BMW light truck dealership from the Source Site to the Target Site, as had been proposed in the September 13, 2002, notice of relocation. Vista's motor vehicle dealer license was, accordingly, modified to permit Vista to conduct dealership activities with regard to BMW passenger cars and BMW light trucks at the Target Site. This modification effectively "de-licensed" Vista as a BMW dealer at the Source Site. On October 7, 2003, Vista stopped selling and servicing BMW passenger cars and BMW light trucks at the Source Site. (Vista continued to operate a preexisting, separately licensed Volkswagen dealership at the Source Site.) On October 8, 2003, Vista started selling and servicing BMW passenger cars and BMW light trucks at the Target Site. (Vista continued to operate a preexisting, separately licensed MINI dealership at the Target Site.) Also pursuant to the settlement agreement referenced above, the Department notified BMW NA and Vista, by letter dated October 15, 2003, of the following relevant findings:5 Pursuant to Rule 15C-7.004(3)(d)2, Florida Administrative Code, the Department views [Vista's] proposed additional motor vehicle BMW dealership . . . at [the Supplemental Site] as an expansion of Vista Motors' existing licensed BMW dealership at [the Source Site.] Therefore, the [proposed project at the Supplemental Site] . . . , [being] in fact merely an expansion of Vista Motors' existing location [i.e. the Source Site], [is] not [an additional BMW dealership] subject to Section 320.642, Florida Statutes. [T]hus BMW is essentially intending to remain open at its existing . . . location [meaning, apparently, the Source Site] at the same time it is relocating to [the Target Site]. Based on the foregoing findings, the Department concluded as follows:6 [The exemption from protest afforded under Section 320.642(5), Florida Statutes, cannot apply where the putative relocatee- dealership of] Vista Motors . . . remain[s] open at the [Source Site] as a franchise BMW dealer . . . [while] at the same time [Vista] move[s] [the putative relocatee- dealership] to the [Target Site]. Therefore, Vista may not be issued a license as a franchise BMW dealer at the [Supplemental Site], until it relocates to [the Target Site] and thereafter publishes a new notification of an additional dealership for the [Supplemental Site], and those proceedings, if any, are concluded in favor of the additional dealership. (Emphasis added.) At first blush, the October 15, 2003, notice seems curiously oblivious to the fact that the Department had already approved Vista's relocation to the Target Site and modified Vista's license accordingly. Indeed, there appears to be some tension between the "facts" found in the notice and the actual facts on the ground. For example, while the notice refers to Vista's existing licensed BMW dealership at the Source Site, the undisputed fact is that Vista was not licensed to operate a BMW dealership at the Source Site as of October 7, 2003. Thus, if the Department believed, as a literal reading of the notice suggests, that Vista's intent on October 15, 2003, was to expand an existing BMW dealership at the Source Site, then it would be reasonable to wonder why the Department did not conclude that Vista was operating at the Source Site without a license. Conclusion 1 seems likewise to be at odds with what had transpired in fact. On the one hand, the Department concludes that Vista has remained open at the Source Site, which it cannot do and also claim, as it had done, the Section 320.642(5) exemption. Yet, on the other hand, the Department had, in fact, previously authorized Vista to operate a BMW dealership at the Target Site under the auspices of the very exemption that the October 15, 2003, notice concludes cannot apply because Vista is still open (according to the "findings") at the Source Site. To properly understand the October 15, 2003, notice, it is necessary to focus on the word "thereafter" in Conclusion 2(b). Clearly, the timing of the "new notification" is critical. The Department is saying that, where a dealer has previously given notice of its intent to relocate an existing dealership, taking advantage of Section 320.642(5) to exempt the reopening of such relocatee-dealership at the target site, if the dealer now wants to establish a "supplemental" dealership at the source site7 (hereafter, such a dealership will be called a "backfill dealership"8) then the relocatee-dealership must truly be relocated before effective notice of the proposed backfill dealership may be published. Under this policy,9 hereafter called the "Exempt Relocation/Backfill Policy," it is appropriate for the Department, in determining retrospectively10 whether the notice of the proposed "supplemental" dealership was effective, to look at the facts as of the date of the notice. In this case, the subject notice was given to the Department on May 5, 2003, and published in the Florida Administrative Weekly on May 16, 2003. With these points in mind, it becomes apparent that the "findings" in the October 15, 2003, notice, which seem inconsistent with the facts on the ground, actually refer to the state of affairs in May 2003. Once the findings in the October 15, 2003, notice are understood as being retrospective in nature, the notice begins to make sense. What the Department found was that Vista had not relocated its BMW dealership from the Source Site to the Target Site as of May 5, 2003, when notice of the proposed backfill dealership was furnished to the Department. As a result, because Vista had previously sought the protection of Section 320.642(5) for the reopening of its relocatee-dealership, the May 5, 2003, notice respecting the backfill dealership was premature and ineffective. To remedy the problem of premature notice, the Department would afford Vista a second chance to give effective notice in the proper sequence, after the relocation of its BMW dealership from the Source Site to the Target Site had taken place.11 It is important to note that, in the October 15, 2003, notice, the Department neither needed to make nor made a finding, one way or the other, as to whether Vista's putative relocatee-dealership has, in fact, moved from the Source Site to the Target Site.12 Thus, such a determination should not be made in and through this proceeding, but, rather, by the Department (preliminarily) either (a) at the time BMW NA gives notice to the Department, again, of the proposed backfill dealership at Supplemental Site or (b) after publication of such notice in the Florida Administrative Weekly but before a license for the proposed backfill dealership is issued or denied.13 It is also not necessary, and indeed would be inappropriate, to determine in this case what action, if any, the Department should take if it subsequently determines that Vista's putative relocatee- dealership has not in fact relocated from the Source Site to the Target Site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order providing that Vista shall be issued a license to operate a BMW dealership at 744 North Federal Highway only if: (a) prior to the time notice is given to the Department pursuant to Section 320.642, Florida Statutes, regarding the proposed dealership, Vista has actually relocated the dealership that existed at 700 North Federal Highway to 4401 West Sample Road in Coconut Creek; any protest filed against the proposed dealership is resolved in Petitioners' favor; and (c) all other legal requirements for licensure are met. DONE AND ENTERED this 15th day of April, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 15th day of April, 2004.
The Issue Whether General Motors' decision not to renew its franchise agreement with Gallman Pontiac was "unfair" as the term is defined by Section 320.641(3), Florida statutes.
Findings Of Fact Background On or about October 28, 1988, (general Motors Corporation, Pontiac Division (General Motors) notified it franchisee, Bill Gallman Pontiac, GMC Truck, Inc. (Gallman Pontiac), a licensed motor vehicle dealer in the State of Florida, of its election not to renew the franchise agreement, effective ninety days from the date of the delivery of the notice of its decision. Because the franchise agreement was scheduled to expire on November 20, 1988, Bill Gallman would have the option to void the nonrenewal due to General Motor's failure to notify the motor vehicle dealer ninety days in advance of the proposed nonrenewal. To avoid this result and to comply with the franchise agreement, General Motors informed the dealer in the same notification that the current agreement was being extended for the same ninety day period in which the dealer had been given notice of the proposed nonrenewal. General Motors' extension of the term of the franchise agreement was a unilateral proposed novation that was accepted by Gallman Pontiac when he relied upon the modification and continued to do business under the novation. Gallman Pontiac's acceptance of the novation is clearly demonstrated by the timing of the verified complaint in this proceeding, which was filed on January 12, 1989. The specific reason stated by General Motors for its decision not to renew its franchise agreement beyond the ninety-day period was that Gallman Pontiac failed to fulfill its minimum sales performance responsibilities pursuant to its contractual obligations as set forth in the Dealer Sales and Service Agreement. Gallman Pontiac subsequently filed a verified complaint, pursuant to Section 320.641, Florida Statutes, to contest the proposed nonrenewal of the franchise agreement. The complaint alleges that the proposed nonrenewal is unfair and that the grounds asserted for the nonrenewal were factually untrue and/or legally insufficient for the intended purpose. The Mathematical Formula for Sales Effectiveness The manufacturer's primary purpose for entering into a franchise agreement with a dealer is to have its automobiles sold. To determine whether a dealer is meeting its responsibilities in this regard, the franchise agreement contains a mathematical formula which is used to evaluate the sales performance of all dealers who sell Pontiacs. Pursuant to the formula, which is expressed in the agreement and tide annual sales performance evaluation form, a dealer's sales ratio and registration ratio must be calculated. A dealer's sales ratio is determined by dividing the dealer's actual unit sales of new motor vehicles, wherever registered, by industry new unit registrations in the Dealer's Area of Prime Responsibility. A dealer's registration ratio is determined by dividing new motor vehicle unit registrations by industry new unit registrations in the Dealer's Area of Prime Responsibility. After these ratios are recorded, the dealer's sales and registration ratios are compared to zone and national registration ratio levels to determine sales and registration effectiveness. If the individual dealer's sales and registration performances reach a comparative level of 85 percent effectiveness to the zone and national levels, the dealer's performance is considered effective by General Motors. When the comparisons were made in this case, the dealer's sales effectiveness was 53.6 percent in 1987 and 68.5 percent in 1988. Registration effectiveness was 56.5 percent in 1987 and 74.1 percent in 1988. These levels of performance do not meet the minimum levels required by the franchise agreement. Other Considerations Under the Agreement In addition to the mathematical formula, the franchise agreement states that General Motors will consider other relevant factors in its sales evaluation, including the following factors: the trend over a reasonable period of time of dealer's sales performance; the manner in which dealer has conducted the sales operations, including advertising, sales promotion and treatment of customers; sales to fleet customers if they have affected registrations; the manner in which dealer has submitted orders for new motor vehicles to the Pontiac Division; the availability of new motor vehicles to dealer; and significant local conditions that may have directly affected dealer's performance. If the mathematical formulas regarding sales and registration effectiveness set forth in the franchise agreement were the sole measure used to determine Gallman Pontiac's sales performance through January 1989, it is clear that the dealer was not meeting its contractual obligations to General Motors in this area of responsibility. However, under the terms of the agreement, General Motors must look to other relevant factors that may have directly affected dealer's performance before a final determination can be made regarding an individual dealer's sales effectiveness. Contrary to the terms of the agreement, the annual evaluation forms show that Gallman Pontiac's performance was evaluated on retail sales only. The other relevant factors in the franchise agreement were not reviewed before the decision not to renew the franchise agreement was made. Other Relative Factors in the Agreement Which Should Have Been Considered in the Dealers Evaluation When the trend of the Gallman Pontiac's sales performance is reviewed, the evidence shows that Gallman Pontiac's sales performance over the life of the franchise agreement has improved relative to market growth by a small percentage (7.51%). This slight upward trend does not demonstrate an effective performance as the sales were below an acceptable standard before the increase in sales, and the improvement barely exceeded the local market growth. The time period over which the trend evaluation occurred is reasonable in this case because both parties agreed to a two-year term in the franchise agreement, which was subject to an overall evaluation prior to a renewal of the agreement. Although there was opinion testimony from a former sales manager from the dealership that Gaillman Pontiac did not order sufficient quantities and mix of vehicles, and imprudently focused the advertising towards the limited, younger group of buyers in Naples, this testimony was not found to be credible by the Hearing Officer. All of the other evidence presented by both sides regarding the manner in which the dealer conducted sales operations demonstrates that Gallman Pontiac met or exceeded his contractual obligations in this area of responsibility. Sales to fleet customers did not affect registrations in 1988. The dealer chose not to compete in the fleet market because the later resale of these vehicles interferes with the sale of new vehicles at this dealership. The manner in which the dealer submitted orders to the Pontiac Division was not criticized by General Motors. The dealer's procedures were continuously reviewed and evaluated through the Dealer Assistance Program. There was no showing that the dealer's ordering procedures directly affected its sales performance. The allocation procedures were applied to Gallman Pontiac in the same manner they were applied to other dealers. The evidence did not show that imprudent selections were made by the dealer in the ordering process, nor was it sufficiently established that manufacturer delays or the unavailability of certain products interfered with the dealer's sales in Naples. A significant local condition that may have directly affected the dealer's sales performance was the lack of receptivity in the Naples market area for linemakes in the class of automobiles offered by Pontiac. Actual sales performance data for all new car registrations in the area show that the Naples market prefers to purchase automobiles from the high group of automobiles such as Cadillac, Lincoln, BMW, Mercedes Benz, and Porsche. Pontiac does not have a linemake designed to compete in this market segment. Application of the Other Relevant Factors To The Decision Not To Renew Because the franchise agreement and the annual sales evaluation form have not made provisions for any adjustments to the original statistical formula based upon the additional considerations mentioned in paragraphs 9-13, these factors are to be considered independently from the initial mathematical calculation. The purpose of the review of these factors is to determine if the statistical analysis is a reliable indicator of the sales performance of the dealer who is being evaluated before General Motors makes its final decision regarding termination. There has been no showing that General Motors ever used the additional considerations for any other purpose in its course of dealings with other dealers in the past or that any other interpretation has been given to these factors. In this case, when the additional relevant factors are reviewed in addition to the ineffective sales and registration performance statistics, the mathematical formula continues to be a reliable indicator that the sales performance at the Gallman Pontiac dealership does not meet required standards. The additional considerations set forth in the franchise agreement which are relevant to this case, do not seriously undermine the fairness of the application of the initial mathematical calculation to the sales performance of Gallman Pontiac. While the local market's lack of receptivity directly affects Gallman Pontiac's performance, the statistical formula takes this into account to a large degree when a dealer is required to meet eighty-five percent of the zone or national average to demonstrate minimum performance. If yet another mathematical formula was created to give additional weight to this local condition beyond the provision in the minimum standards formula, the manufacturer could be harmed by a individual dealer's lack of market penetration efforts. Because it is difficult to determine the primary cause and effect of poor market penetration in a specific area, the statistical formula is generally fair to both sides in most situations. It does not unfairly accuse either the dealer or the manufacturer as being responsible for the lack of sales. One indicator of the fairness involved in the application of the formula as designed can be found in Mr. Anderson's comparative analysis of the Naples automobile market and the Sarasota market. Mr. Anderson is the expert in automobile marketing analysis presented by General Motors. This analysis refutes the opinion of Dr. Ostlund, the expert presented by Gallman Pontiac during the hearing regarding automobile marketing analysis. It is Dr. Ostlund's opinion that Naples is a unique market in which the usual statistical formula becomes unfair if it is applied to all registrations in the Dealer's Area of Responsibility. Based upon this analysis, Dr. Ostlund suggests that a weighted average be applied in the standard formula to all of the sales made by Gallman Pontiac during the franchise period. However, even if this were done, Gallman Pontiac's performance would have been 84.7 percent, which is still below the required standard of 85 percent. Contrary to Dr. Ostlund's analysis, the Naples-Sarasota comparison conducted by Mr. Anderson demonstrates that Pontiac can compete in a high income area with similar demographics to Naples within the same zone along the same Florida coast. Therefore, the usual statistical formula remains a reliable indicator of the sales effectiveness of a Pontiac dealer in Naples, Florida, and should be applied without any further weighting of averages in the statistical analysis required by the franchise agreement. Application of Additional Factors Relevant to the Decision Not to Renew Pursuant to Statute A nonrenewal of the franchise agreement is clearly permitted by the franchise agreement. The nonrenewal has been undertaken in good faith and good cause. The manufacturer has continuously encouraged the dealer to meet sales performance standards and has worked with Gallman Pontiac in an effort to achieve this goal within the time frame agreed to by the parties. Because franchise dealers are the major outlet the manufacturer has for the sale of new automobiles, it is essential that minimum levels of sales performance are achieved on a regular basis. Failure to meet the minimum sales performance over the term of this agreement by Gallman Pontiac is a material and substantial breach of the contract.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a Final Order dismissing Gallman Pontiac's complaint with prejudice. DONE and ENTERED this 28 day of June, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 28 day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0505 Petitioner's Proposed Findings of Fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #3. Reject all but last sentence. Conclusions of Law. Accept the last sentence. Rejected. Conclusion of Law. Accepted. Reject that the dealer code problem can be attri- buted to the conduct of the manufacturer. Insufficient proof. Accepted. Accepted. Accepted. Rejected. Reject the weighted average basis. See HO #14 and #15.. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #4. Accepted. See HO #6. Accepted. Accepted. Accepted. Rejected. Speculative. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #15. Rejected. Contrary to fact. See HO #15. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #17. Rejected. Irrelevant. Attempt to shift evidentiary burden. Rejected. See HO #15. Accepted. See HO #13. Rejected. See HO #15. Rejected. See HO #15. Accepted. See HO #13. Accepted. See HO #13. Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. Rejected. See HO #15. Accepted. Accepted. Rejected. Irrelevant. Accepted. Rejected. See HO #15. Accepted. Rejected. See HO #14. Accepted. Accepted. Accept that additional factor's need to be considered. Rejected Dr. Ostlund's interpretation. See HO #9 through #15. Rejected. Improper summary. Rejected. Irrelevant. Accepted. See HO #6. Accepted. Accepted, except for the last sentence which is an opinion or closing argument as opposed to a finding of fact. Accepted. Rejected. See HO #14. Accepted. Accepted, except for Nissan. Accepted. Accepted. Rejected. See HO Accepted. Accepted. Rejected. Closing argument as opposed to finding of fact. Rejected. Irrelevant and contrary to fact. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Contrary to fact. Rejected. Conclusionary. Accepted. Rejected. Irrelevant. Rejected. See HO #10. Rejected. See HO #17. Rejected. See HO #15 and #17. Rejected. See HO #17. Accepted. Rejected. Contrary to fact. See HO #17. Respondent's Proposed Findings of Fact are addressed as follows: Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #6. Accepted. See HO #8. Accepted. Accepted. Accepted. Accepted. Accepted. See HO 415. Accepted. Accepted. Accepted. See HO #15. Accepted. Accepted. See HO #15. Accepted. See HO #13. Accepted. Accepted. Accepted. See HO #15. Accepted. Accepted. Accepted. Accepted. See HO #11. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See HO #15. Rejected. Irrelevant. Accepted. Accepted. Rejected. Redundant. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. See HO #14. Accepted. Accepted. See HO #9. Rejected. Unreliable conclusion. Accepted. See HO #17. Rejected. Irrelevant. Outside the reasons given for nonrenewal. See HO #8. Rejected. Same reason as given in above. Rejected. Same reason as 49 and 50. Also contrary to fact. Rejected. Irrelevant to this hearing. Rejected. Irrelevant to this hearing. Accepted. See HO #17. Accepted. See HO #15. Rejected. Redundant and argumentative. Accepted. Accepted. Rejected. Improper argument. Rejected. The use of "sales reported" was allowed by the Hearing Officer at hearing. Rejected. Irrelevant in these proceedings. Rejected. Irrelevant and unreliable speculation. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Dr. Ostlund was very credible. Mr. Anderson's analysis, based upon y~he Sarasota- Naples comparison, which tended to refute the testimony of Dr. Ostlund, was given greater weight by the Hearing Officer. COPIES FURNISHED: James D. Adams, Esquire Michael J. Alderman, Esquire Feaman, Adams, Harris, Department of Highway Fernandez & Deutch, P.A. Safety And Motor Vehicles Corporate Plaza, Fourth Floor Neil Kirkman Building 4700 N.W. Second Avenue Tallahassee, Florida 32399-0500 Boca Raton, Florida 33431 S. William Fuller, Jr., Esq. Vasilis C. Katsafanas, Esquire Fuller Johnson & Farrell Rumberger, Kirk, Caldwell, Post Office Box 1739 Cabaniss, Burke & Wechsler Tallahassee, Florida 32302 11 East Pine Street Orlando, Florida 32802 Charles J. Brantley, Director Division of Motors Vehicles William J. Whalen, Esquire Department of Highway Office of General Counsel Safety and Motor Vehicles General Motors Corporation B439 Neil Kirkman Building New Center One Building Tallahassee, Florida 32399-0500 3031 West Grand Boulevard Detroit, Michigan 48232 Enoch J. Whitney, Esquire General Counsel S. Thomas Wienner, Esquire Departments of Highway Dykema Gossett Safety and Motor Vehicles 35th Floor Neil Kirklan Building 400 Renaissance Center Tallahassee, Florida 32399-0500 Detroit, Michigan 48243
The Issue The issue is whether Petitioner's establishment of North Tampa Chrysler Jeep Dodge, Inc. (North Tampa), as a successor motor vehicle dealer for Chrysler, Jeep and Dodge line-makes (vehicles) in Tampa, Florida, is exempt from the notice and protest requirements in Subsection 320.642(3), Florida Statutes (2009),1 pursuant to Subsection 320.642(5)(a).
Findings Of Fact Petitioner manufactures and sells Chrysler, Jeep and Dodge vehicles to authorized Chrysler, Jeep and Dodge dealers. Ulm is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ulm sells Chrysler, Jeep and Dodge vehicles at 2966 North Dale Mabry Highway, Tampa, Florida 33607. Ferman is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ferman sells Chrysler, Jeep and Dodge vehicles at 24314 State Road 54, Lutz, Florida 33559. It is undisputed that Petitioner has had four dealers in the Tampa metro market for a significant number of years. Petitioner's primary competitors also have had four or more dealers in the Tampa metro market. By appointing North Tampa as a successor dealer to Bob Wilson Dodge Chrysler Jeep (Wilson), Petitioner seeks to maintain the status quo of four Chrysler dealers in the Tampa metro market. In April 2008, Petitioner had four dealers in the Tampa metro market that each sold and serviced Chrysler, Jeep and Dodge vehicles. The four dealers were: Ulm, Ferman, Courtesy Chrysler Jeep Dodge, and Wilson. On April 25, 2008, Wilson filed a Chapter 11 petition in United States Bankruptcy Court in the Middle District of Florida (the Bankruptcy Court). At or about the same time, Wilson closed its doors and ceased selling and servicing Chrysler, Jeep and Dodge vehicles. The filing of Wilson’s bankruptcy petition precipitated an automatic stay under Section 362 of the Bankruptcy Code. The automatic stay prevented Petitioner from terminating Wilson’s franchise and dealer agreements (dealer agreements). But for Wilson’s bankruptcy filing, Petitioner would have sent Wilson a notice of termination when Wilson closed its doors and ceased dealership operations. Wilson’s cessation of business adversely impacted Petitioner. In relevant part, Petitioner lost sales and lacked a necessary fourth dealer to provide service to Chrysler, Jeep and Dodge customers in the Tampa metro market. Petitioner desired to reopen a dealership at or close to the former Wilson location as soon as possible to mitigate or eliminate the economic loss. During the automatic stay, Petitioner was legally precluded from unilaterally appointing a successor dealer to Wilson. Wilson still had valid dealer agreements for the Chrysler, Jeep and Dodge vehicles and, therefore, was still a dealer. During the automatic stay, Wilson attempted to sell its existing dealership assets, including the Chrysler, Jeep and Dodge dealer agreements. Any attempt by Petitioner to appoint a successor dealer or even negotiate with a successor dealer, would have undermined Wilson’s efforts to sell the dealerships and maximize the estate for the benefit of the creditors. A sale of the dealership required the consent of Wilson and Wilson’s largest creditor, Chrysler Financial. Petitioner did everything it could to accelerate a sale. However, Petitioner was not a party to the sale negotiations and had no ability to require or force Wilson to sell the dealership or its assets to any particular party or to do so within any particular time period. A preponderance of the evidence does not support a finding that Petitioner did anything to intentionally, or inadvertently, delay or manipulate the timing of a sale. On July 30, 2008, Petitioner filed a motion with the Bankruptcy Court to lift the automatic stay. The motion also sought the termination of Wilson’s dealer agreements. Petitioner filed the motion in the Bankruptcy Court in an attempt to hasten the sale negotiations. Petitioner also wanted to be able to terminate the dealer agreements as quickly as possible in the event that a sale was not consummated. The Bankruptcy Court did not initially grant Petitioner's motion. The court wanted to allow time for a sale of the dealership to proceed. During 2008 and early 2009, Wilson continued to negotiate with potential buyers for the dealership. On January 8, 2009, Wilson's motor vehicle dealer license expired. It became apparent to Petitioner that a sale of Wilson’s assets would be unlikely. Petitioner again asked the Bankruptcy Court to grant Petitioner's motion to lift the stay. On February 9, 2009, the Bankruptcy Court entered an order granting Petitioner's motion to lift the stay. However, the order did not terminate Wilson’s dealer agreements. On February 16, 2009, within a week of the entry of the order lifting the stay, Petitioner sent Wilson a notice of intent to terminate Wilson’s dealer agreements. Wilson received the notice of termination on February 23, 2009, and the termination became effective on March 10, 2009. A preponderance of evidence does not support a finding that Petitioner attempted to manipulate or delay the timing of the termination of Wilson’s dealer agreements. Petitioner began working on establishing a replacement dealership as soon as Wilson’s dealer agreements were terminated. Establishing a replacement dealership is a lengthy process that primarily involves finding a suitable dealer candidate, finding a suitable location and facility, and making sure that the candidate has the necessary capital to start and maintain the dealership. Petitioner talked to several potential candidates to replace the Wilson dealership, including Jerry Ulm, the principal of one of the complaining dealers in these cases. By letter dated June 24, 2009, Mr. Ulm advised Petitioner that he opposed the opening of a successor dealership for anyone else but wanted the successor dealership for himself should Petitioner decide to proceed. Petitioner determined that Petitioner would not be able to locate the successor dealership at the former Wilson facility. Petitioner considered several potential alternative locations for the successor dealership, including property offered by Ferman. Ferman had a vacant site on Fletcher Avenue in Tampa, Florida, which Ferman leased from a third party unrelated to this proceeding. Ferman offered to sublease the property to Petitioner. In a letter to Petitioner's real estate agent dated July 17, 2009, Ferman stated Ferman's understanding that Petitioner intended to use the property to establish a Chrysler, Jeep and Dodge dealership. Petitioner ultimately decided to locate the dealership at 10909 North Florida Avenue in Tampa, Florida. It is undisputed that this location is less than two miles from the former Wilson location. Before establishing the successor dealership, however, Petitioner wrote a letter to the Department on February 5, 2010 (the letter). The letter requested the Department to confirm that the establishment of the successor dealership would be exempt under Subsection 320.642(5)(a)1. from the notice and protest requirements in Subsection 320.642(3). The letter explained that Wilson had filed bankruptcy and ceased operations and that the bankruptcy had prevented Petitioner from terminating Wilson and appointing a successor dealership. The letter also provided the relevant dates of the bankruptcy, the lifting of the stay, and the termination of Wilson dealer agreements and advised the Department of Petitioner's intent to locate the successor dealership within two miles of Wilson’s former location. The letter asked the Department to confirm that the establishment of a successor dealership would be exempt if it was established within one year of March 10, 2009, when Petitioner terminated the Wilson dealer agreements. By separate e-mails dated February 9 and 12, 2010, the Department twice confirmed that it had consulted with counsel and determined that the establishment of a successor dealership to Wilson in the manner outlined by Petitioner would be exempt. Petitioner relied on this confirmation by the Department before proceeding with the appointment of a successor dealership. On February 24, 2010, Petitioner sent a second letter to the Department, stating Petitioner's intention to appoint North Tampa as the replacement and successor dealer for Wilson (the second letter). In the second letter, Petitioner again asserted its understanding that the establishment of North Tampa was exempt from the relevant statutory requirements for notice and protest. On February 24, 2010, Petitioner also submitted to the Department an application for a motor vehicle dealer license for North Tampa. On March 3, 2010, the Department issued a license to North Tampa for the Chrysler, Jeep and Dodge vehicles at 10909 North Florida Avenue in Tampa, Florida. On March 7, 2010, North Tampa opened for business. North Tampa has operated successfully and continuously and employs approximately 30 individuals at the site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that the establishment of North Tampa as a successor motor vehicle dealer is exempt from the notice and protest requirements in Subsection 320.642(3) pursuant to Subsection 320.642(5)(a). DONE AND ENTERED this 11th day of October, 2010, 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 11th day of October, 2010.
The Issue Whether Dadeland Dodge, Inc. (Dadeland) should be permitted to relocate a motor vehicle dealership from 8455 South Dixie Highway, Miami, Dade County, Florida, to a proposed location at 16501 South Dixie Highway, Miami, Florida.
Findings Of Fact Chrysler manufacturers Dodge automobiles and trucks which are sold by a network of motor vehicle dealerships. In Florida, such dealerships are governed by the provisions of Chapter 320, Florida Statutes. Dadeland and Spitzer are dealerships selling Dodge motor vehicles in Dade County, Florida. There are five Dodge dealers in the community or territory, all of which are within Dade County. Three of the dealers are located north of the existing Dadeland site: Maroone Dodge is near the Broward County line at a point which sells into Broward; Potamkin Dodge North is in North Miami, and Potamkin Dodge is in Hialeah. Dadeland is currently located at 8455 South Dixie Highway (U.S. 1), Miami, Florida. It seeks to relocate its place of business to 16501 South Dixie Highway, Miami. Spitzer is also located on South Dixie Highway just north of Homestead, Florida. Its current location is 17.3 miles south of the existing Dadeland dealership and 11.5 miles south of the proposed Dadeland location. The criteria applicable to this case are found in Section 320.642, Florida Statutes. Such provision requires a determination of whether there is adequate representation in the community or territory. The term "community or territory" is not defined by law. In this case, the community or territory is the area used by the manufacturer to define the dealers' trading zones. Geographically the community or territory includes all of Dade County and small portions of Broward and Monroe Counties. In determining whether Chrysler has adequate representation in the community or territory, sales data was compiled for all new motor vehicle sales registered within the geographic area defined as the community or territory. Such data was for 1994 and 1995 years with projections calculated based upon actual past performance. The automobile industry classifies motor vehicles in segments lumping cars with cars and trucks with trucks. Typically, segments are designated or defined by companies such as R.L. Polk which tracks new vehicle sales. The segments group vehicles which presumably compete against one another for buyers. Dodge does not compete in all car segments. For example, it has no vehicle which is classified as mini-subcompact. Similarly, trucks are also classified into segments. Dodge competes in five of the manufacturers' ten segments. In this case, Dodge sales in the community or territory (Comm/Terr) have been compared to Dodge sales in the nation as a whole. In order to account for the buying preferences of the community or territory, the Dodge sales for this community or territory have been adjusted to consider the segment preferences of the Dade Comm/Terr buyers. In computing these projections all sales, foreign and domestic, have been considered. Chrysler does not distinguish between imports and domestics because all vehicles within the segments compete against the Chrysler entry in the segment. While some entries may, by historical buying pattern, have proved more successful, Dodge registers sales in all segments in which it competes. In some instances Dodge has competed well. For example, Chrysler was the originator of the minivan, both domestics and import manufacturers have introduced vehicles to compete in those segments. Customers looking for a vehicle in the minivan segment are going to look for the best minivan they can find, regardless of whether an import or domestic. By comparing Dodge's sales penetration in each vehicle segment in the nation with the industry available in each segment in the community or territory, an appropriate standard is established to determine whether this area is receiving adequate representation. Measuring penetration within each segment takes into account differences in consumer preferences between the two areas without regard to brand. Utilizing this segment analysis, the reasonably expected market share for Dodge in the Comm/Terr is 5.89% of retail industry for cars and trucks. Dodge penetration in the community or territory has been below expected levels in 1994 and 1995. Dodge penetration compared with its expected share (utilizing the national average area as a standard and adjusted for local segment preferences) was between 51.35% and 59.69% effective. On the basis of the net shortfall in units, or number of vehicles which, at the minimum, would be required to be registered in order to bring the community or territory up to the expected performance, the 1994 shortfall was 1075 units, and in 1995 was 907 units. Even using a Florida sales average (as opposed to the national average) as a standard for measuring whether Dodge is receiving adequate representation in this Comm/Terr, the performance of the Dodge network in this community or territory falls short. Based upon the foregoing it is concluded that Dodge has lost sales opportunity in the community or territory and that the network of Dodge dealers within this Comm/Terr have failed to adequately represent Chrysler. The community or territory has experienced growth in population, driving age population, and households during the last ten years. This growth is expected to continue. Employment has also grown and corresponds to a predominance of census traits reflecting average household incomes of over $25,000. Presumably such households represent potential new vehicle buyers. Total industry car and truck registrations in the community or territory have grown from 108,483 in 1993 to 112,767 in 1995. Spitzer sales increased in the aftermath of Hurricane Andrew and have continued to increase. Spitzer's sales history is as follows: 369 (1991); 527 (1992); 506 (1993); 567 (1994); and 644 (1995). 24. Since 1980, the number of Dodge dealers in the community or territory has decreased by one. Thus, it is important to assure that the remaining Dodge dealerships are appropriately located to serve the car buying population of the market. The importance of the number of dealers also relates to Dodge's major competitors in Dade. Six different brands have more than five points: Ford(10); Chevrolet (7); Honda (7); Chrysler-Plymouth (6); Jeep-Eagle (6); and Toyota (6). There are five dealerships within the Comm/Terr for Lincoln-Mercury, Pontiac, Nissan, and Mazda. The current Dadeland facility is a small facility with no room to expand. Other dealerships in the area offer modern, large facilities. The current Dadeland facility has no enclosed showroom with a very small sales area. The current Dadeland facility is leased by its owner to Chrysler Realty, which in turn leases it to Dadeland. The lease on this real property expires in 1997. Chrysler Realty has no right to renew it. Despite searching for land since 1992, Chrysler Realty has not been able to locate any land within two miles of the existing Dadeland dealership upon which this dealer could relocate. Although the most preferable relocation of Dadeland would move the dealership to the west, there is no site available for use as an automobile dealership in that area either. Other competitive dealerships are located south of the existing Dadeland location along U.S. 1. If Chrysler is not able to relocate Dadeland and were to lose the point, the reduction of the dealerships by one would have an adverse impact on competition, the consumer, and on dealer sales by leaving a void in an interconnected market. Dadeland proposes to relocate from its current location at the extreme far north end of the Dadeland auto cluster, into the center of an auto cluster on U.S. 1, in the immediate vicinity of many other dealerships. The auto cluster in which Spitzer is located in Homestead contains most of the same franchises which are in the auto cluster into which Dadeland proposes to relocate. Many of the same line-make dealerships, located in both clusters, are closer to one another, or about as close, as would be Dadeland and Spitzer if the relocation is permitted. The proximity of intra-brand competition promotes same line-make competition which in turn, makes strong inter-brand competitors out of both dealers. Close proximity is, generally, a positive factor for both dealerships. The pattern of Spitzer's sales, which extend in a broad pattern, suggests that Spitzer does and will continue to, make sales in close proximity to other Dodge dealers in the Comm/Terr, especially Dadeland. Spitzer penetrates the market within two miles of its dealership at a rate of 4.9%. This level of penetration falls below the national average and indicates that there is additional sales opportunity to Spitzer within two miles of its dealership. While Spitzer maintains a higher level of penetration within a six-mile radius of its dealership, its share drops after that. Whether at the distance of the proposed Dadeland relocation or where it is now, Spitzer's sales penetration in those areas is low. The relocation of the Dadeland dealership will likely benefit consumers and the public interest. It will provide the growing population of the community or territory with a more convenient place to shop for Dodges in close proximity to the other dealerships where they shop for other brands. Because of the untapped opportunity for Dodge in the community or territory, and depending on Spitzer's response to the competition, ample opportunity exists for both dealers to increase sales by capitalizing on the available sales opportunity in the area. If the relocated Dadeland dealership performs in the future in a similar manner to the way in which it is currently performing at its current location, there should be no adverse impact on the existing dealers, including Spitzer. Dealers are accustomed to the cyclical nature of the automobile business. Sales go up and down through the cycle. Any number of factors could contribute to an individual dealer's sales going up or down. Dealers make adjustments in the operation of their businesses in order to maximize their profits. Within the industry cycle, there are also shifts in the dealers' business between new and used car sales. If new cars are not popular in a down cycle, used cars become far more popular. When buyers don't have the money to buy new vehicles, they will look at used ones. Typically, when the new car business is down, the used car business will be up and service business will be up. Consequently, a dealership's profit should not correlate solely with new car sales. All of Spitzer's estimations of lost new vehicle sales, and the lost profits resulting from those lost sales, were based upon the premise that Spitzer (and the other Dodge dealers) can compete only in the domestic industry market. The persuasive evidence presented in this cause does not support that premise. Accordingly, Spitzer's sales and economic loss estimates are rejected. The Spitzer facility is adequate to serve the Homestead area and to sell into the community or territory as a whole. Spitzer should continue to increase its sales and receive a return on its investment in the facility. Chrysler is attempting to relocate Dadeland in order to promote the existing dealer network as opposed to seeking a new point to address lost market opportunity. Chrysler Realty has executed an agreement with Dadeland which provides that Chrysler Realty will build a new facility for Dadeland on property that it has purchased. All of the costs for that facility, including the purchase price of the land and all costs incurred in the construction of the building, including surveys, impact fees, architect and engineering costs will form the basis for a monthly rental amount. Chrysler Realty's return on the total amount is fixed at eleven percent. All dealerships who rent from Chrysler Realty, including one owned by Spitzer in Ohio, pay rent in accordance with the uniform policy and computation proposed for this relocation. There is no evidence that Chrysler has denied its existing dealers opportunities for growth. There is no evidence that Chrysler coerced its existing dealers to consent to the proposed relocation. Spitzer achieved its minimum sales responsibility for 1995; therefore, there is no evidence that Spitzer is not in compliance with its dealer agreement with Chrysler.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered granting Dadeland's request to relocate its dealership. DONE AND ENTERED this 8th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997. APPENDIX At the conclusion of the hearing, the parties stipulated to September 30, 1996, as the deadline for filing proposed recommended orders. This date was presumably selected to secure rulings on the proposed findings of fact. While the parties later waived that opportunity and agreed to submit their proposed orders on October 2, 1996, specific rulings are included below where citation to the record was noted by the party. Where no citation was listed, the proposed finding of fact is rejected unless otherwise stated in the findings of fact above. Rulings on the proposed findings of fact submitted by Chrysler: 1. Paragraphs 1 through 3, 5, 6, 12, 13, 16, 17, 18, 23, 24, 25, 26 through 30, 31, 55, 56, 57, 63, 65, 71, 72, 74, 75, 76, 78, 79, 80, 81, 85, 86, 87, 88, 90, 91, 92, 93, 94, 97, 98, 100, 101, 102, 103, 108, 109, 110, 111, 112, 113, 117, 136, 137, 138, 139 and 140 are accepted. Paragraph 4 is rejected as argument or comment of law. Paragraphs 8 through 11 are rejected as irrelevant. Paragraphs 14 and 15 are rejected as comment of law or argument. Paragraphs 19 through 21 are rejected as unnecessary or irrelevant. Paragraph 22 is accepted with the deletion of the word "very" before "conservative" which is contrary to the weight of credible evidence or not defined adequately in the record. Paragraphs 32 through 54 are rejected as argument or comment on the evidence unnecessary to the conclusions reached. Paragraphs 58 through 62 are rejected as argument or comment on the evidence unnecessary to the conclusions reached. Paragraph 64 is rejected as unnecessary to the conclusion reached. Paragraphs 66 through 70 are rejected as comment or argument not necessary to conclusions reached. Paragraph 73 is comment on the evidence. The relocation of the dealership is justified because it can't continue where it is; and, in terms of economic and other conditions, it would be damaging to the Dodge product sales which is already inadequately represented in the Comm/Terr. Paragraph 77 is rejected as comment and unnecessary. 13 Paragraphs 82 through 84 are rejected as irrelevant or unnecessary. Paragraphs 89 is rejected as irrelevant. Paragraphs 95 and 96 are rejected as argument. Paragraph 99 is rejected as argument. Paragraphs 104 through 107 are rejected as unnecessary. Paragraphs 114 through 116 are rejected as unnecessary. Paragraph 118 is rejected as comment or speculation unnecessary to the conclusions reached herein. Paragraphs 119 through 135 are unnecessary and comment on the evidence more in the form of argument than fact. To the extent findings have been made which support Chrysler's argument, such findings are accepted. Paragraph 138 is comment and the editorial quality of its statement is rejected as argumentative. Rulings on the proposed findings of fact submitted by Spitzer: 1. Paragraphs 1 through 5, 7, 10, 13, 14, 16, 17, 18, 21, 25, 28, 29, 30, 64, 65, 66, 67, 68, 73, 75 through 80, 87, 91 are accepted. Paragraphs 6, 8, 9 and 11 are rejected as contrary to the weight of the persuasive evidence. Paragraphs 12 is rejected in that it considers only geographic proximity as an impacting factor and ignores dealer performance opportunities and the opportunity for additional sales in the Comm/Terr. Paragraph 15 is rejected as it ignores the opportunity for new sales in the Comm/Terr which should offset adverse effects, if any. With regard to paragraph 16, it is accepted that the optimal location for the relocation would be north and west of the proposed site, however, no such site is available. Therefore, references to such site are rejected as irrelevant albeit factually correct. Paragraph 18 is rejected as irrelevant; Dadeland will have to future sales at its current location. Paragraphs 19, 20, 22, 23, 24, 26 and 27 are rejected as irrelevant, contrary to the weight of persuasive evidence, or argument. With regard to paragraph 31, with the addition of "and west" such paragraph is accepted as factually accurate but ultimately irrelevant. Paragraphs 32 through 47 are rejected in their conclusions as contrary to the weight of persuasive evidence. Paragraphs 48 through 63 are rejected as argument, comment on evidence or contrary to the weight of persuasive evidence. Paragraphs 69 through 72 are rejected as contrary to the weight of the credible evidence. Paragraphs 74 through 86 are rejected as comment, argument, irrelevant or contrary to the weight of the persuasive evidence. Paragraphs 88 and 90, 92, 93, and 94 are rejected as comment, incomplete, or contrary to the weight of the evidence. COPIES FURNISHED: Dean Bunch, Esquire Sutherland, Asbill & Brennan, L.L.P. 909 East Park Avenue Tallahassee, Florida 32301 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Robert A. Bass, Esquire Myers, Forehand & Fuller 402 North Office Plaza Drive Tallahassee, Florida 32301 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Michael J. Alderman, Esquire Division of Motor Vehicles Room A432, Neil Kirkman Building Tallahassee, Florida 32399-0500
The Issue Whether Gorilla Motor Works, LLC (Gorilla) should be permitted over Petitioner's protest to establish an additional dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 188 North Federal Highway, Deerfield Beach, Florida 33441 (the proposed location).
Findings Of Fact Petitioner is an existing franchised dealer of ZHNG Motorcycles. Petitioner's dealership is located at 550 North Flagler Avenue, Pompano Beach, Florida. Petitioner's dealership is approximately 7.2 miles from the proposed location. Respondents offered no evidence that Petitioner has failed to adequately represent ZHNG.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Highway Safety and Motor Vehicles enter a Final Order denying the request to establish a new ZHNG dealership at the proposed location. DONE AND ENTERED this 7th day of December, 2011, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of December, 2011.
The Issue The issue in the case is whether an application for a new point franchise motor vehicle dealership filed by El Sol Trading, Inc., and Finish Line Scooters, LLC (Petitioners), should be approved.
Findings Of Fact There was no evidence presented at the hearing to establish that the Respondent has a franchise agreement to sell or service CHUA motor vehicles, the line-make to be sold by Finish Line Scooters, LLC. There was no evidence presented at the hearing that the Respondent's dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new point franchise motor vehicle dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the protest filed in this case by Scooter Elite, LLC, and granting the Petitioners' request to establish a new point franchise motor vehicle dealership for the sale of CHUA motorcycles. DONE AND ENTERED this 9th day of March, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2010. COPIES FURNISHED: Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Gloria Ma El Sol Trading, Inc., d/b/a Motobravo, Inc. 19877 Quiroz Court City of Industry, California 91789 Kirit Kana Scooter Elite, LLC 7204 Central Avenue St. Petersburg, Florida 33707 John V. Leonard Finish Line Scooters, LLC 6600 Gulf Boulevard St. Pete Beach, Florida 33706 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue for determination in this proceeding is whether Proposed Rules 15C-7.004(4)(a), (4)(b), and (7)(d) and Florida Administrative Code Rule 15C- 1.008 each constitute an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties The Department of Highway Safety and Motor Vehicles (the "Department") is the agency responsible for promulgating and administering the rules challenged in this proceeding. The Department administers Chapter 320, Florida Statutes, 2/ which governs the operation of motor vehicle dealers and manufacturers in Florida. General Motors Corporation ("GM") is a corporation incorporated in Delaware and registered to do business in Florida. GM's corporate address and principal place of business is 3044 West Grand Boulevard, Detroit, Michigan 48202. GM is licensed by the Department, pursuant to Section 320.60, Florida Statutes, as a manufacturer of motor vehicles. GM has entered into and will enter into dealer sales and service agreements to authorize motor vehicle dealers to sell GM vehicles at locations in Florida. The Florida Automobile Dealers Association (??FADA??) and the South Florida Auto Truck Dealers Association ("SFATDA") are trade associations composed of both domestic and foreign line-make franchised motor vehicle dealers. FADA is composed of more than 800 franchised motor vehicle dealers licensed in the state. SFATDA is composed of virtually all franchised motor vehicle dealers in Palm Beach, Broward, Dade, and Monroe Counties. The Motor Vehicle Manufacturers Association of the United States, Inc. ("MVMA") is a trade association whose member companies manufacture motor vehicles produced in the United States. MVMA members include Chrysler Corporation, Ford Motor Company, GM, Honda of America MFG., Inc., Navistar International Transportation Corporation, PACCAR Inc., and Volvo North America Corporation. The principal place of business for MVMA is 7430 Second Avenue, Suite 300, Detroit, Michigan 48202. All of the members of MVVA, including Ford Motor Company ("Ford"), are licensed pursuant to Section 320.61, Florida Statutes. The Association of International Automobile Manufacturers, Inc. ("AIAM") is a trade association of manufacturers and manufacturer-authorized importers which import motor vehicles for sale in the United States. AIAM members and associates affected by the challenged rules include: American Honda Motor Company, Inc.; America Suzuki Motor Corporation; BMW of North America, Inc.; Daihatsu America, Inc.; Fiat Auto U.S.A., Inc.; Hyundai Motor America; Isuzu Motors America, Inc.; Jaguar Cars, Inc.; Mazda Motor of America, Inc., Mitsubishi Motor Sales of America, Inc.; Nissan North America, Inc.; Peugeot Motors of America, Inc.; Porsche Cars North America, Inc., Rolls-Royce Motor Cars, Inc.; Rover Group USA, Inc.; Saab Cars, USA, Inc.; Subaru of America, Inc.; Toyota Motor Sales, U.S.A., Inc.; Volkswagen of America, Inc., Volvo North America Corporation; and Yugo America, Inc. The principal place of business for AIAM is 1001 19th Street North, Suite 1002, Arlington, Virginia 22209. Each member of AIAM is either licensed as an importer, pursuant to Section 320.61, Florida Statutes, or maintains a contractual relationship with a distributor which is licensed pursuant to Section 320.61. Toyota Motor Sales, U.S.A., Inc. ("Toyota"), for example, is not licensed in the state as an importer. Toyota, however, maintains a contractual relationship with Southeast Toyota, Inc., which is licensed as a distributor for the purpose of marketing motor vehicles in Florida. Hyundai Motor America ("Hyundai") is an importer of motor vehicles. Hyundai's principal place of business is 10550 Talbert Avenue, Fountain Valley, California 92728. Members of MVMA and AIAM, as well as Ford and Hyundai, have entered into and will continue to enter into dealer sales and service agreements to authorize motor vehicle dealers to sell GM vehicles at locations in Florida. Ed Morse Chevrolet of Seminole, Inc. ("Morse") is an applicant for a license as a franchised motor vehicle dealer. The application of Morse was approved after a hearing pursuant to Section 320.642, Florida Statues. Morse's facility, however, is not yet completed and it would be adversely affected by the enforcement of Proposed Rules 15C-7.004(7)(d) and Rule 15C-1.008. The portions of the proposed and existing rules challenged in this proceeding will affect the substantial interests of the parties to this proceeding. The Challenged Rules Proposed Rule 15C-7.004 was published in the Florida Administrative Weekly, Vol. 17, NO. 16, at page 1721, on April 19, 1991 (the "Proposed Rule"). The particular portions of the Proposed Rule challenged in this proceeding are hereinafter identified by the underlining in the quoted portion of the Proposed Rule. Proposed Rule 15C-7.004(4)(a) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. If the license of an existing franchised motor vehicle dealer is revoked for any reason, or surrendered, an application for a license to permit the reopening of the same dealer or a successor dealer within twelve months of the license revocation or surrender shall not be considered the establishment of an additional dealership if one of the conditions set forth in Section 320.642(5) is met by the proposed dealer. (emphasis added) Proposed Rule 15C-7.004(4)(b) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. An application for change of address by an existing dealer under this section shall be filed on form HSMV 84712, Application For Change of Location (Address) Of Dealer In Motor Vehicles, Mobile Homes or Recreational Vehicles, which is hereby adopted by reference, provided by the Department. The dealer shall indicate which provision of Section 320.642(5) Florida Statutes, if any, it contends exempts the proposed location from consideration as an additional dealership. (emphasis added) Proposed Rule 15C-7.004(7)(d) provides: (7) Hearing and Post-Hearing Procedures. (d) If the proposed additional or relocated dealership is approved construction on the dealership shall begin within 12 months of the date of the final order. The applicant must complete construction and finalize its preliminary application for license within twenty-four months of the date of the final order. This period may be extended by the Department for good cause. (emphasis added) Florida Administrative Code Rule 15C-1.008 provides: Any person who contemplates the establishment of a motor vehicle business for the purpose of selling new motor vehicles, for which a franchise from the manufacturer, distributor or importer thereof is required, shall, in advance of acquiring building and facilities necessary for such an establishment, notify the Director of the Division of Motor Vehicles of his intention to establish such motor vehicle business. Such notice shall be in the form of a preliminary filing of his application for license and shall be accompanied by a copy of any proposed franchise agreement with, or letter of intent to grant a franchise from, the manufacturer, distributor or importer, showing the make of vehicle or vehicles included in the franchise; location of the proposed business; the name or names of any other dealer or dealers in the surrounding trade areas, community or territory who are presently franchised to sell the same make or makes of motor vehicles. Upon receipt of such notice the Director shall be authorized to proceed with making the determination required by Section 320.642, Florida Statutes, and shall cause a notice to be sent to the presently licensed franchised dealers for the same make or makes of vehicles in the territory or community in which the new dealership proposes to locate, advising such dealers of the provisions of Section 320.642, Florida Statutes, and giving them and all real parties in interest an opportunity to be heard on the matters specified in that Section. Such notice need not be given to any presently licensed notice dealer who has stated in writing that he will not protest the establishment of a new dealership which will deal in the make or makes of vehicles to be included in the proposed franchise in the territory or community in which the new dealership proposes to locate. Any such statements or letters of no protest shall have been issued not more than three months before the date of filing of the preliminary application. The Director may make such further investigation and hold such hearing as he deems necessary to determine the questions specified under Section 320.642. A determination so made by the Director shall be effective as to such license for a period of twelve (12) months from the date of the Director's Order, or date of final judicial determination in the event of an appeal, unless for good cause a different period is set by the Director in his order of determination. (emphasis added) Rulemaking authority for Proposed Rule 15C-7.004 is found in Sections 320.011 and 320.27(3), Florida Statues. The law implemented by the proposed rule is found in Sections 320.27 and 320.60-320.70. Rulemaking authority for Florida Administrative Code Rule 15C-1.008 is found in Sections 320.011, 320.27(3), and 320.69. The law implemented by the existing rule is found in Sections 320.27 and 320.642.
