The Issue The issue in these cases is whether the Petitioner is entitled to establish a dealership for the sale of certain motor vehicles. As to both cases, the Respondent currently sells motorcycles that are manufactured by the same companies for which the Petitioner seeks approval.
Findings Of Fact The Respondent, WenMark, Inc. d/b/a All the Wheel Toys, is an existing dealer of motor vehicles as defined in Section 320.60(11), Florida Statutes (2007). At all times material to the allegations of this case, the Petitioner, LS MotorSports, LLC and Best Buy Vehicles, Inc., sought approval for a motor vehicle dealership to be located at 3525 South U.S. 1, Fort Pierce (Saint Lucie County), Florida. The Petitioner’s proposed location is within 13 miles of the Respondent’s dealership at 1540 Northwest Federal Highway, Stuart (Martin County), Florida. This distance was calculated by MapQuest, an internet site providing directions and distances, but was verified by Mark Mourning. The addresses are on the same road, that is to say “Federal Highway” or U.S. 1. One location is simply north of the other. The Respondent is licensed by the Department of Highway Safety and Motor Vehicles and is authorized to sell motorcycles manufactured by various manufacturers. Some confusion in these cases results because the motorcycles are manufactured outside of this country, imported, and may or may not be sold with the same name brands. Essentially, the Respondent maintained it was granted an exclusive right to sell motorcycles described in this record as ZONG, CFHG, and LINH. It is the Respondent’s assertion that Petitioners have been unlawfully selling motorcycles that have been distributed in violation of its exclusive right to sell. Additionally, since the existing dealership is adequately meeting the needs of the geographical area to be served by the Petitioners, the Respondent maintains it should continue to be the sole approved dealership for the area. According to the Respondent’s most recent sales data, 78 percent of its sales are within 20 miles of the proposed dealership. If allowed to sell motorcycles at the proposed location, the Petitioners will in all likelihood take sales away from the existing dealer. The Petitioners have presented no evidence to support the new point location. The motorcycles at issue in this case may bear the names of customized sellers. That is to say, unlike automobiles, the manufacturers and distributors of these types of vehicles are inclined to “name” the cycle based upon the seller’s preference. The Respondent maintains that it has exclusive right to sell the motor vehicles based upon the manufacturers and distributors regardless of the vehicle’s ultimate sales “name.” The Petitioners presented no evidence to refute this assertion. The new point dealership would be located in St. Lucie County, Florida, a county of less than 300,000 population, according to the latest population estimates of the University of Florida, Bureau of Economic and Business Research.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a Final Order denying the new point dealership sought by the Petitioners. DONE AND ENTERED this 5th day of September, 2007, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings 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 this 5th day of September, 2007. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Mark Mourning WenMark, Inc. d/b/a All the Wheel Toys, Inc. 1540 Northwest Federal Highway Stuart, Florida 34994 Mathu Solo LS MotorSports, LLC 2550 East Desert Inn, No. 40 Las Vegas, Nevada 89121 Jim Buchheit Best Buy Vehicles, Inc. 3525 South US 1 Fort Pierce, Florida 34982 Judson M. Chapman, General Counsel Department of Highway Safety And Motor Vehicles Neil Kirkman Bldg 2900 Apalachee Parkway Tallahassee Fl 32399-0500 Electra Theodorides-Bustle Executive Director Department of Highway Safety And Motor Vehicles Neil Kirkman Bldg 2900 Apalachee Parkway Tallahassee Fl 32399-0500
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel Manry an Administrative Law Judge of the Division of Administrative Hearings , a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon a Second Joint Status Report. On October 2, 2009, the Department received a copy of the Respondent's Withdrawal of Protest. Accordingly, it is hereby ORDERED that the Dealer Agreement between American Suzuki Motor Corporation and Con's Cycle Center, Inc. d/b/a House of Power is terminated. Filed October 23, 2009 9:48 AM Division of Administrative Hearings. DONE AND ORDERED this 22 ay of October, 2009, in Tallahassee, Leon County, Florida. tor Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 2,:. .ct. Filed with the Clerk of the Division of Motor Vehicles this n day of October, 2009. Vlriaylllc,O... Admlnlslrlltor NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Alex Kurkin, Esquire Kurkin Brandes, LLP 4300 Biscayne Boulevard, Suite 300 Miami, Florida 33137 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
The Issue The issue presented here concerns the question of whether the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, should grant the Petitioner, Ross Chevrolet, Inc. (Ross), an amendment to its motor vehicle dealer license in accordance with Section 320.642, Florida Statutes, on the basis that the Petitioners in this cause, Ross and General Motors Corporation, GMC Truck and Coach Division (GMC), in the face of the challenge to Ross's licensure offered by the Respondent, Hunt Truck Sales and Service, Inc. (Hunt), have proven that the existing GMC heavy-duty truck dealers in the territory or community are providing inadequate representation for GMC. 1/
Findings Of Fact Case History On June 4, 1980, the Petitioner GMC entered into a Heavy-Duty Truck Addendum with Petitioner Ross to amend Ross's Dealer Sales and Service Agreement to enable Ross to sell Series 80 and Series 90 model heavy-duty trucks produced by GMC. The heavy-duty truck dealership would be located at Ross's existing heavy-duty truck facility, 2530 30th Avenue North, St. Petersburg, Florida. The Respondent Hunt having learned of GMC's intentions to grant a franchise to Ross, protested Ross's licensure before the Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, that protest having been made in keeping with the terms of Section 320.642, Florida Statutes. After receiving the Respondent Hunt's protest, the Division of Motor Vehicles forwarded the case to the State of Florida, Division of Administrative Hearings for a hearing pursuant to Section 120.57(1), Florida Statutes. A formal hearing was held on February 25 and 26, 1981, following the succeeding prehearing matters. Several theories were advanced prior to hearing on the subject of the ability of the Director, State of Florida, Department of Highway Safety and Motor Vehicles, to consider the issue of granting the Petitioner Ross the motor vehicle dealer's license requested of that Division and the opportunity for the Respondent Hunt to protest the grant of that license. In the logical order of the treatment of these questions, they were presented as follows: The Respondent Hunt's Motion to Dismiss this action on the theory that Ross's application for licensure from the Division was premature, in that the community or territory proposed for this licensure had not been established through the application process. The Petitioners' Motion to Dismiss or in the Alternative, Motion for Summary Recommended Order on the grounds that: The application by the Petitioner Ross was a replacement application and, therefore, not subject to protest under the terms of Section 320.642, Florida Statutes, such protest being by the Respondent Hunt. Hunt was not a dealer within the same community or territory as Ross; consequently, the Ross application was not subject of protest by Hunt, in keeping with the authority of Section 320.642, Florida Statutes. A hearing was held on these jurisdictional motions on October 10, 1980, wherein evidence was presented. The Hearing Officer issued a Recommended Order which recited the fact that Ross's application for a GMC heavy-duty truck franchise resulted from Chevrolet's discontinuation of their heavy-duty truck marketing effort. The Order held that, for the purposes of heavy-duty trucks, Pinellas and Hillsborough Counties are within the same "territory or community." The Order went on to suggest that the dealer franchise sought by Ross was a replacement, not a new dealer license thereby depriving the Respondent agency of subject matter jurisdiction within the meaning of Section 320.642, Florida Statutes, and necessarily depriving the Respondent of standing to challenge the licensure. See Southside Motor Company, etc. v. Askew, 332 So.2d 613 (Fla. 1976). On December 15, 1980, John D. Calvin, Director, Division of Motor Vehicles, issued an "Order on Jurisdiction" which rejected the Recommended Order finding that Ross is a new dealer not a replacement dealer, but accepting the Recommended Order insofar as its finding that Pinellas and Hillsborough Counties are within the same "territory or community." Calvin remanded the case to the Hearing Officer for a final hearing on the issue of adequacy of representation as set forth in Section 320.642, Florida Statutes. On January 6, 1981, this Hearing Officer accepted the case on remand from Calvin upon Calvin's conclusion that "there is subject matter jurisdiction to consider the opposition to the motor vehicle application." GMC and Ross filed a petition for review of non-final agency action, pursuant to Section 120.68(1), Florida Statutes, requesting that the Second District Court of Appeal, State of Florida, review Calvin's Order on Jurisdiction. Subsequent to the filing of the appeal, Hunt filed a Motion for Continuance with the Hearing Officer and a Motion to Stay Order on Jurisdiction directed to the Division of Motor Vehicles. The Motion for Continuance was denied by the Hearing Officer and the Motion to Stay Order on Jurisdiction was granted by Calvin on February 17, 1981. After having heard oral argument and receiving written citations of authority from the parties, the Hearing Officer, on February 23, 1981, ruled that the hearing would proceed as scheduled. On February 24, 1981, the day prior to the date set for the final hearing, Respondent Hunt filed a Motion to Confirm Stay in Case No. 81-82, Second District Court of Appeal, which was then pending upon Petitioners GMC and Ross's appeal, and a Petition for Writ of Prohibition and Show Cause Order and Motion for Emergency Stay directed to the Hearing Officer, Case No. 81-359, seeking to prevent the conducting of the final hearing herein. All relief sought by Respondent Hunt was denied by the Second District Court of Appeal on February 24, 1981, and the final hearing on the merits in this matter proceeded as scheduled February 25 and 26, 1981. This Recommended Order results from that hearing. Parties Petitioner GMC is a truck manufacturer that offers for sale light, medium and heavy-duty trucks in the United States primarily through retail outlets owned and operated by independent business entities. The model line which is the subject of this proceeding-includes only heavy-duty trucks in GMC's 80 and 90 Series. The Petitioner Ross was the holder of a heavy-duty truck addendum to sell Chevrolet trucks for General Motors Corporation. The Chevrolet heavy-duty truck line is no longer produced by that manufacturer and Ross now seeks a Florida dealer license for permission to sell GMC heavy-duty trucks at the aforementioned location in Pinellas County, Florida. The Despondent Hunt is a truck dealership, licensed by the State of Florida, to handle (NC light, medium and heavy-duty trucks, as well as White, Freightliner, Volvo, and Mercedes-Benz heavy-duty trucks. Hunt's dealership is located at 8211 Adano Drive, Tampa, Florida, within Hillsborough County. . 14. The Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, is an agency of the State of Florida which has among other functions the responsibility to evaluate and issue motor vehicle dealer licenses to those applicants who intend to sell motor vehicles in the State of Florida. This responsibility is mandated by Chapter 320, Florida Statutes. As an adjunct to this process, the Respondent, Division must act in accord with the provisions of Section 320.642, Florida Statutes, which creates the opportunity for ongoing dealers in the community or territory of a proposed dealer to protest the grant of the prospective dealer's license, in keeping with prior decisions of the agency and court opinions that have spoken to the issue of the Division's function in this specified requirement. Marketing The "primary area" of responsibility as designated and defined in the GM Dealer Sales and Service Agreement related to the existing franchisee Hunt, is constituted of Pinellas, Hillsborough, and Pasco Counties, Florida. Should Ross be approved for licensure by the State of Florida it has also been offered that same "primary area" of responsibility by GM. Petitioner's Exhibit No. 10 depicts the physical location of the Hunt operation in Tampa, Florida, and of the facility of Ross in St. Petersburg, Florida. The distance between those two dealerships is approximately 27 miles and the driving time necessary to traverse that distance is approximately 45 minutes. In the "primary area" of responsibility for Hunt and prospectively for Ross, there are 8 heavy-duty truck manufacturers represented to include: GMC, Volvo, Freightliner, White, Mark, International, Ford, and Kenworth. At Present all of those manufacturers have dealerships in Hillsborough County, Florida. There are 8 GMC heavy-duty truck dealerships in the State of Florida, which is part of the Atlanta zone for GMC, which has a total of 20 heavy-duty dealerships in four states to include Florida. Three of the GMC heavy-duty truck dealerships in Florida are located on the west coast of Florida. There are 281 GMC heavy-duty dealerships nationally. As reflected in Petitioner's Exhibit No. 1, heavy-duty truck registrations for all manufacturers for Hillsborough, Pinellas and Pasco Counties for the period 1975 compared to 1979 grew by 125 percent from 605 units to 1362 units. That same exhibit indicates registrations in Pinellas County, referring to that time period 1975 through 1979, to be: 1975-78; 1976-108; 1977-113; 1978-240; 1979-275. During the period of those full reporting years reflected in Petitioner's Exhibit No. 1 in the aforementioned three-county area, that is 1975 through 1979, the number of Chevrolet heavy-duty trucks sold was 6, 19, 13, 24 and 55 respectively as opposed to 106, 74, 215, 266 and 191, respectively for GMC heavy-duty trucks in those counties. Petitioner's Exhibit No. 1 shows, when comparing GMC registrations in Pinellas County to those in Hillsborough County, that for the full year periods 1975 through 1979, Pinellas County registrations were considerably less. Pasco County registrations for GMC were even less significant when this comparison is made. Petitioner's Exhibit No. 5 entered into evidence, is a printout of retail sales made by Hunt and reports part of the calendar year 1976, all of the calendar years 1977, 1978, 1979, and part of the calendar year 1980. This information is based upon data provided by Hunt to GMC. When contrasting this exhibit with Petitioner's Exhibit No. 3, admitted into evidence, which is a summarization from R. L. Polk Company data related to truck registrations in the rePorting years 1977 through 1979, one additional sale by Hunt is reflected in Petitioner's Exhibit No. 5 as contrasted with the Petitioner's Exhibit No. 3, related to registrations. There are also some minimal differences in the registration data in Petitioner's Exhibit No. 1 compared to Petitioner's Exhibit (These differences should be evaluated in conjunction with the following paragraph.) Turning to an examination of Respondent's Exhibit No. 3, which Respondent Hunt contended represented additional sales by Hunt not reflected in Petitioner's Exhibit No. 5, it should be noted that this exhibit, Respondent's Exhibit No. 3, expands the reporting period of Petitioner's Exhibit No. 5. Taking as correct the stated purpose of Respondent's Exhibit No. 3 to be one of demonstrating additional truck sales in Pinellas County bade by Hunt which are not reflected in Petitioner's Exhibit No. 5, data provided by Hunt; those sales as shown on pages 2, 4, 5, 13, 17, 18, 26, 29 and 32 of Respondent's Exhibit No. 3, add nothing to the total in that they were made by Pinellas Truck Sales, Inc., a light and medium-duty truck franchisee for GMC, not part of the Hunt Addendum with GMC to sell heavy-duty trucks. In addition those sales reflected in pages 10 and 14 of the Respondent's Exhibit No. 3 were not made in Pinellas County. Those sales in Respondent's Exhibit No. 3 found at pages 9, 12 and 16 are excluded for reasons that they are already reflected in Petitioner's Exhibit No. 5. Those sales at pages 19 and 33 of Respondent's Exhibit No. 3, are excluded because they are intradealer sales and should not be counted in marketing analysis. Finally, that sale by Pinellas Truck, which is reflected at cage 17 of Respondent's Exhibit No. 3, is also shown in the Petitioner's Exhibit No. 5, at page 12, line 31, and should be removed from Petitioner's Exhibit No. 5 as part of the count. Likewise, that intradealer transfer or sale reflected on page 19 of Respondent's Exhibit No. 3 is reported at page 13, line 41 of Petitioner's Exhibit No. 5, and should reduce the Pinellas County sales in Petitioner's Exhibit No. 5 by one unit. In summary, of the 35 additional sales which the Respondent Hunt claims to have made in Pinellas County which are not reflected in the Petitioner's Exhibit No. 5, 16 of those sales are disallowed and Petitioner's Exhibit No. 5 is reduced by 2 units. Again, considering Petitioner's Exhibit No. 1 it indicates that at the time Chevrolet had a heavy-duty truck dealership in Pinellas County, Florida, its performance was stronger in that county than in Hillsborough County, Florida, and the same observation can be made of GMC's heavy-duty truck performance, in that their performance in Hillsborough County had been stronger than its Pinellas County performance in a circumstance wherein GMC had a heavy- duty dealership in Hillsborough County. This indicates a sales advantage for the dealerships in the counties where they are found, particularly when you consider the similarity between GMC and Chevrolet heavy-duty trucks as reflected in the initial Recommended Order in this cause dated October 24, 1980, which findings of fact related to the similarities are incorporated by reference herein. On the subject of the Pinellas County market, historically sales of Chevrolet heavy-duty trucks made by the Petitioner Ross have been more along the lines of non-fleet customers with one or two purchases as contrasted to truck sales by Hunt, which have been more in the way of fleet sales. Most of the Ross accounts are with small customers. To be successful in marketing the product in Pinellas County or elsewhere, the heavy-duty truck business requires selling outside the dealership, in that the marketing is not similar to the sales of automobiles. Customers do not come to the showroom to make the purchase, the dealer must canvass outside the dealership through dealer salesmen. Ross had five salesmen canvassing end soliciting in Pinellas County with emphasis on small fleet buyers, i.e. buyers of one to five trucks. Small customers ordinarily do not do their own maintenance, and location of a dealership for maintenance purposes is an important consideration for that purchaser. This is contrasted with larger buyers who solicit bids with less regard to dealer location and availability of service. Without easily accessible service, the small buyer suffers great business damage when his equipment is down for repair. Hunt has also actively solicited business in Pinellas County and has employed three full-time parts salesmen, and has made substantial sales on accounts receivable in Pinellas County during the year 1980. It has 168 employees, 28 of which are in parts and 19 are salesmen. Pinellas County as a "Community or Territory" In the preliminary jurisdictional decision, from the evidence presented it appears that "primary area" of responsibility as designated by GM for Hunt and Ross to sell GMC heavy-duty trucks and the "community or territory" within the meaning of Section 320.642, Florida Statutes, related to Hillsborough, Pinellas and Pasco Counties were synonymous. After reviewing the facts presented in the expanded hearing held in February, 1981, Pinellas County is found to be a separate and distinct "community or territory," and having decided that Pinellas County constitutes a "community or territory" within the meaning of Section 320.642, Florida Statutes, separate and apart from Hillsborough and Pasco Counties, the following supplemental facts are offered in support of this finding: Pinellas County's population, according to the Bureau of Census in 1970, was 522,329 and it has grown to 721,227 - a growth rate of about 38 percent. Projection by the University of Florida, Division of Population Studies, Bureau of Economic Analysis, indicate a growth rate for the next decade of around 29 percent. According to the Center for Economic Management Services, there were 224,000 persons employed in Pinellas County in August, 1980. Principal industries in Pinellas County are tourism, construction and light manufacturing. The 1977 Census of Economic Activities by the US. Bureau of the Census indicated 803 manufacturing firms in Hillsborough County as contrasted with 866 of those firms in Pinellas County. A smaller number and percentage in Pinellas County were classified by this census as being large firms with 20 or more employees.
The Issue The issue is whether Petitioners are entitled to motor vehicle dealerships that are proposed to be located in Orange County, Florida.
Findings Of Fact Based on the Notices of Publication, Respondent's protest letters which were forwarded to DOAH, and the testimony presented at the final hearing, the following Findings of Fact are made: Respondent is an existing franchised dealer for motorcycles manufactured by Benzhou Vehicle Industry Group Company, Ltd. Petitioners have proposed the establishment of new dealerships to sell the same line-make of motorcycles as those sold by Respondent. Respondent's dealership is located at 3838 John Young Parkway, Orlando, Orange County, Florida. Petitioners' dealerships are proposed to be located in Orange County, Florida, at: 4535 34th Street, Orlando, Florida (Case No. 09-3489); and 2650 West Fairbanks Avenue, Winter Park, Florida (Case Nos. 09-3499 and 09-4750). The proposed dealerships are within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealerships. No evidence was presented showing that Respondent was "not providing adequate representation" of the same line-make vehicles in the community or territory.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the establishment of Petitioners' proposed franchise dealerships for Case Nos. 09-3489, 09-3499, and 09-4750. DONE AND ENTERED this 12th day of November, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 12th day of November, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 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 Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Jude A. Mitchell Jude's Cycle Service Post Office Box 585574 Orlando, Florida 32858 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Randy Lazarus Scooter City USA, LLC 4535 34th Street Orlando, Florida 32811 Bobbette Lynott Classic Motorcycles and Sidecars, Inc. Post Office Box 969 Preston, Washington 98050 Lou Ronka Scooter City USA, LLC 2650 West Fairbanks Avenue Winter Park, Florida 32789
The Issue The issue is whether GMC Truck Division of General Motors Corporation is receiving adequate representation in the community or territory where General Motors proposes to add an additional dealer.
Findings Of Fact The Relevant Community or Territory Coral Oldsmobile-GMC Truck, Inc. ("Coral") seeks to establish a GMC dealership in the vicinity of Coral Springs, Florida. The location chosen is within an area which GM has identified as the Fort Lauderdale multiple dealer area ("MDA"). The MDA is an area of primary responsibility ("APR") assigned by GM in its Dealer Sales and Service Agreements to more than a single GMC truck dealer. The three protesting dealers, Sheehan, located at Lighthouse Point, King in Fort Lauderdale and Scott in Hollywood, already have been assigned to sell GMC trucks in the Fort Lauderdale MDA. The Fort Lauderdale MDA comprises a large portion of the land area of Broward County, and its boundaries are defined U.S. Census Tracts. GMC truck dealers located in nearby APRs which touch the Fort Lauderdale MDA are known in the industry as "fringe dealers." No fringe dealer makes enough truck sales to consumers who register their vehicles in the Fort Lauderdale MDA so that any fringe dealer could be considered to fall within the community or territory at issue here. Information about the addresses where new car or truck owners register vehicles is available and can then be aggregated by census tracts or other geographic designations such as zip code areas. Nationally, from 62% to 85% of the sales made by each dealer within an MDA are made to persons who register the vehicles within the MDA boundary. General Motors has designated areas surrounding each dealer within an MDA as an "Area of Geographic Sales and Service Advantage" ("AGSSA"). The boundaries of each AGSSA is also defined by census tracts. For the Fort Lauderdale MDA, AGSSA 1 is located in the northeastern county, and has been assigned to Sheehan, in Lighthouse Point. AGSSA 2 is the central portion of the county, its dealer is King, in Fort Lauderdale. AGSSA 3 is in the southern portion of the county, its dealer, Scott, is in Hollywood. Each AGSSA is designed as the area in which its dealer has a convenience advantage over other dealers of the same line-make because of its proximity to consumers residing in that area. The proposed AGSSA to be created for the Coral dealership in the Fort Lauderdale MDA is designated as AGSSA 10 [why this is not designated AGSSA 4 is not clear, but it is also not significant]. Eighty four percent (84%) of customers registering new trucks in the area to comprise AGSSA 10 purchased their GMC trucks from dealers in the Fort Lauderdale MDA. King and Sheehan sell GMC trucks that are registered throughout the MDA. A significant number of consumers go outside the Sheehan AGSSA 1 and King AGSSA 2 to purchase GMC trucks from other MDA dealers. It is undisputed that AGSSAs 1, 2 and 10 should be included within the definition of the relevant community or territory. The dispute centers on whether AGSSA 3 is also part of the community or territory. Eighty-six percent (86%) of all GMC truck registrations in AGSSA 3 were attributable to sales by dealers in the Fort Lauderdale MDA, which includes sales by Scott. Of the registrations which were not generated by sales at Scott, 72% were from other Fort Lauderdale MDA dealers. Thirty-six percent (36%) of those registering GMC trucks in AGSSA 3 (the Scott AGSSA) purchased them from other Fort Lauderdale MDA dealers. AGSSA 3, therefore, does not perform like an isolated, unconnected market. Based on consumer behavior, the Fort Lauderdale MDA, including AGSSAs 1, 2, 3, and 10, perform as a large market shared by multiple dealers. The test commonly used for determining whether markets are so connected as to form an appropriate community or territory to use as a unit of analysis requires that there be cross-sell of at least 30% in both directions. In other words, at least 30% of a dealer's sales should be made to consumers outside of the dealer's AGSSA but inside the MDA, as well as at least 30% of the consumers inside the dealer's AGSSA should buy from the other dealers in the MDA. The Scott dealership, in the southern portion of Broward County, does not fit this classic definition. The Scott data for the most recent year show that for Scott, 33 sales were made to persons registering vehicles in other AGSSA's within the Fort Lauderdale MDA. Scott's nationwide retail sales were 241 units, so only 13.7% of Scott's sales were to persons residing in the Fort Lauderdale MDA, but outside of the Scott AGSSA. On the other hand, as pointed out in the prior Finding, 86% of all registrations in the Scott AGSSA were attributable to dealers in the Fort Lauderdale MDA (including sales made by Scott). Scott does not sell vehicles into the other AGSSAs of the MDA very well, but the customers in the Scott AGSSA are going to other MDA dealers to buy trucks more than they were going to dealers in any other area. On balance, this evidence demonstrates that it is appropriate to include the Scott AGSSA, AGSSA No. 3, in the Fort Lauderdale MDA, and that the Fort Lauderdale MDA defines the community or territory which should be the unit of analysis here. Standard of Evaluation The next question is whether the existing GM dealers are providing "adequate representation" in the relevant community or territory, i.e., the Fort Lauderdale MDA. Since 1988 GMC Truck sales performance in the Fort Lauderdale MDA as a whole and in AGSSA 10 have steadily declined. The most common measure for evaluating the performance of a dealer network is analysis of market penetration data. GMC Truck has a 7.41% market share nationally. National data includes markets where GM is inadequately represented, where it has no dealers at all, and markets where it is represented adequately. National data is, of course, only a starting point. There are variations in consumer preferences for different types of vehicles, and even a dealership network in an area which fails to match the 7.41% market penetration for the nation as a whole may be adequately representing GM in its area, if consumers there tend to prefer different types of vehicles, something which even the most efficient dealer cannot change. Conversely, the dealer or dealership network selling at the national average may be inadequately representing GM if it reaches no more than the national average market penetration in an area where the type of vehicle under consideration is quite popular with the area's consumers. Historically, GMC truck has had greater market penetration in the large pick-up truck, truck wagon and full size panel van segments of the market than in the small pick-up truck segment. In places where large pick-up trucks are popular (agricultural areas, for example, where trucks commonly are used on farms) market conditions are favorable to GM. Taking into account the different popularity of distinct segments of the truck market nationally and in the Fort Lauderdale MDA, GM expects the Fort Lauderdale MDA to achieve a market penetration of 6.45%, which is somewhat lower than the national average for market penetration. Applying the same analyses to AGSSA 10 (the proposed new dealership) shows an expected market penetration of about a 6.04%, or about 80% of the National average. (Anderson testimony, at 31.) These percentages are computed by identifying demand shown by actual consumer purchases in the Fort Lauderdale MDA and in AGSSA 10 for each segment of the product category (i.e., large pick-ups, small pick-ups, and mid-size vans, panel vans, etc.) and applying to those sales the national average GM achieves for each of those segments. This produces an expected number of registrations for the dealer according to the local popularity of each product segment. This standard of comparison is useful because it takes into account unique characteristics of the local market. In 1988 AGSSA 10 achieved 95.5% of its expected penetration. Performance declined to 76.6% of expected penetration by 1990. Analyzing AGSSA 10 based on age distribution of the area's population rather than on truck market segment popularity, shows that GMC truck projects a 7.59% market penetration in AGSSA 10 and in the Fort Lauderdale MDA, which is somewhat higher than the national average and the expected penetration described in Finding 13. When one takes into account income distributions in the area, GM projects a market penetration of 7.41% in the Fort Lauderdale MDA and 7.43% in AGSSA 10, which is quite close to the national average market penetration, and higher than AGSSA 10's projected market penetration based upon product segment popularity. See Finding 13, above. Expected penetration calculations for other markets in Florida show that 17 areas of Florida actually exceed their expected market penetration, which is evidence that the expected penetration calculation produces a reasonable expectation, and has not been manipulated by GM to become an extreme standard which dealers could not actually meet. Sheehan, in AGSSA 1 had sales equal to almost 150% of its expected penetration in 1990. It is significant that in census tracts within the Fort Lauderdale MDA that meet or exceed the expected penetration, based on product segment popularity, the average distance of the purchasing consumer from the nearest dealer is 3.4 miles. This confirms that convenience of dealer location affects consumers' purchasing decisions in an important way. Consumers in AGSSA 10 are, on average, now 8.7 miles from the nearest GMC Truck dealer. This increased distance is a very persuasive explanatory factor for the low sales in AGSSA 10 now, which fall below expected market penetration. The expert for the protesters, Dr. Mizerski, challenged GM's use of national averages to assess dealer performance in AGSSA 10 and the Fort Lauderdale MDA. Dr. Mizerski would have used as the standard for assessing the adequacy of representation of the GMC truck products by the protesting dealers market penetration in the State of Florida, on the theory that the State of Florida data more closely matches AGSSA 10 and the Fort Lauderdale MDA than national data does. This theory has some initial appeal, but it fails to take into account the question of whether Florida itself has a disproportionate share of inadequately represented markets. This could come from the substantial growth in Florida in recent years. Florida falls below the national average, and below 34 states in the ratio of GMC Truck dealers to all other dealers. More than half the Florida markets have penetration below that expected based on product segment popularity, which is an indication that Florida has a disproportionate share of inadequately represented markets. There is no proof that the number of sale points (i.e., dealerships) has increased in proportion as Florida's population has increased. (See Finding 30, below, as to Broward County). If market penetration for GMC truck products in Florida is lower than the national average not because of unique characteristics of the Florida market, but because of network inadequacies, it makes no sense to use that inadequate network as the standard for evaluating the adequacy of dealer performance. On balance, the expected penetration standard advocated by GM based on product segment popularity is more persuasive than the "actual penetration" standard advocated by Dr. Mizerski. The penetration achieved in AGSSA 10 in 1990 was only 4.63%, which is well below the expected penetration of 6.04%, the national average of 7.41%, the Florida average of 5.8%, and the Florida MDA average of 5%. It began to fall below expected penetration in 1988 and performance has declined since then. Performance in the Fort Lauderdale MDA as a whole was also below expected penetration in 1989 and 1990. If lease registrations are included within the definition of the retail market, the figures are essentially the same. Consumer lease transactions are not distorting performance data. All Fort Lauderdale MDA dealers have not had trouble meeting expected penetration projections. The performance by Sheehan in AGSSA 1 is almost 150% of its expected penetration. Existing dealers have not been able to penetrate the market in AGSSA 10 adequately from their current locations. The most likely cause of the low penetration is the lack of a GMC Truck dealership in the geographic area. Market Characteristics The three existing dealers are located in what was the densely populated eastern or coastal half of Broward County in 1980. The Broward population has grown significantly from 1980 through 1990 in the western half of the Fort Lauderdale MDA, especially near the proposed location for the Coral dealership. The population in AGSSA 10 rose nearly 200,000 from 1970 to 1980, and rose 129,000 from 1980 to 1990. The 1990 population of 357,958 is about nine times the 1970 population, and twice the 1980 population. There have been similar increases in the number of households and an observable increase in household density in western Broward. This population growth in AGSSA 10 should continue into the future, reaching an estimated 530,554 within the next 10 years. This growth rate is five times greater than that of Broward County as a whole, which itself is growing at twice the national rate. Despite the significant increase in population in AGSSA 10 and in the western two thirds of AGSSA 3, there is no local GMC truck dealer to serve this growing population. The growth has not been limited to AGSSA 10. The entire Fort Lauderdale MDA had grown in terms of population, household and driving age population during the same period. Each AGSSA in the Fort Lauderdale MDA had population increases and increases in the number of households both in absolute numbers and on a percentage basis from 1970 to 1980. AGSSA 10 had the largest percentage increases (500% in population, 600% in households), although the entire Fort Lauderdale MDA grew very significantly. From 1980 to 1990 the population of AGSSA 10 grew 56.24% and households grew 66.66% and it became the second largest AGSSA in Fort Lauderdale MDA. The population of AGSSA 1 grew 10.92% and 19% in number of households during 1980-1990. AGSSA 3 increased 22.58% in population and 28.48% in households. AGSSA 2 population remained basically stable (decreasing by about 1.84%) and the number of households increased only moderately, 5.33%. The very significant growth in the Fort Lauderdale MDA and in AGSSA 10 has two implications. It has offered greater opportunities for sales of GMC trucks and also highlights the need for expansion of the dealer network so that dealers will be conveniently located to the new residents of the western areas of Broward County. AGSSA 10 currently holds strong prospects for additional sales due to its household incomes. Sales potential is better predicted by a household's income than by individual income. Areas of average household incomes below $15,000 generate few new vehicle sales, while household incomes of greater than $15,000 have significant potential for new vehicle sales. The average household income in AGSSA 10, and throughout the entire Fort Lauderdale MDA, are predominately of middle and upper income levels. Only one census tract in AGSSA 2 and one in AGSSA 3 have household income levels of below $15,000. The employment figures in the decade from 1980 to 1990 in Broward County are consistent with its population growth. The increases in employment and real income in Broward County have been significantly higher than those of the United States as a whole, and Broward's rate of unemployment has been lower. This economic strength is predicted to continue throughout the next decade. These facts indicate that the large growth in the Fort Lauderdale MDA and in AGSSA 10 is of a type likely to provide significant opportunities for sales of new GMC Trucks. As the population increased, light truck registrations have increased too. From 1982-1990, retail light truck registrations in the Fort Lauderdale MDA increased 112%, and in AGSSA 10 increased 213%. These increases in population, households, income and employment also point to an increased potential for traffic congestion in areas where current dealers are located, as individuals use the road networks to travel to and from work. Providing convenience to consumers by locating new dealerships in areas experiencing growth is important. See Findings 15 and 24. Areas which experience rapid development can outgrow the ability of the dealer network to provide adequate service to potential customers. The Fort Lauderdale MDA offers more sales opportunity per existing GMC truck dealer than all but three markets in Florida. Even with the proposed additional dealer, the opportunity per dealer would remain higher than that available in 39 other Florida markets. Merely to increase dealers in proportion to increases in the number of households, an additional dealer should have been added as long ago as in 1983, and another likely will be needed by 1995 in the Fort Lauderdale MDA. Based on GMC's experience over the years, the existing dealer network cannot continue to expand to fulfill the needs of Broward's increased population and especially the population of the Fort Lauderdale MDA. A dealer network designed to produce more than 225 expected GMC Truck registrations per dealer fails to achieve the minimum expected registrations 86% of the time. Thus, to have a reasonable chance of meeting expected market penetration, the network should not exceed a critical size of 225 expected GMC Truck registrations per dealership. This 225 registration goal is not a measure of total sales at a dealership. GMC Trucks are sold from dealerships which also sell other GM lines. The 225 registrations applies only to GMC Truck products. In the absence of the proposed new dealer in AGSSA 10, the GMC Truck network is configured to expect 365 registrations per dealer, which is much above critical optimum design capacity of 225. The Fort Lauderdale MDA simply has grown too large for a three dealer network. Appropriate planning by GM requires redesigning the network to allow for at least four and as many as five dealers. Perhaps the most telling facts are those showing selling success at distances. The existing dealers' market penetration is strongest close to their dealership locations, but declines as the distance from the dealerships increase. This makes intuitive sense. Sheehan has been able to meet or exceed the expected penetration within four miles of its dealership and has only moderate impact on GMC truck sales performance at distances near the proposed location for Coral in AGSSA 10. King does not penetrate the market significantly beyond four miles from its dealership, and has even less impact on GMC truck penetration at the proposed location, which is 10 miles away from King. Scott is not penetrating the market significantly at a distance, achieving only a 3/10 of one percent of its sales at a distance equal to that of the proposed new Coral dealership. Because there is no dealer in AGSSA 10, potential customers residing there are 8.7 miles from the nearest GMC truck dealer, on average. This is almost three times the average distance in AGSSA 1 (2.8 miles), twice the distance in AGSSA 2 (3.5 miles), and 2 and 1/2 miles farther than in AGSSA 3. If the proposed new dealership is established in AGSSA 10, convenience is improved to 4.1 miles on the average, which still is not as good as that provided in AGSSAs 1 and 2. Of course, the convenience GM offers to consumers residing in AGSSAs 1, 2 and 3 remains the same whether or not a new dealer is added in AGSSA 10. Other manufacturers of light trucks offer higher degrees of convenience to residents of AGSSA 10, which places GM at a competitive disadvantage. Performance of GMC truck in AGSSA 10 fell below minimum expected penetration in 1988 (see Finding 13). That year a light truck competitor, Dodge, established a dealership there. GMC truck performance has continued to decline in the area as other light truck manufacturers established representation in the area in 1989 (Id.). Based upon their distance from AGSSA 10 consumers, the existing Fort Lauderdale dealers are unable to overcome the convenience disadvantage they face in attracting consumers residing in AGSSA 10, and consequently have been unable to provide adequate inter-brand competition. This is partially the result of the design of Broward County roadways, which carry traffic better north-south than east-west. The problem is inherent in the current design of the GM sales network, and the solution is to add a GMC truck dealer in AGSSA 10 to improve convenience to consumers. Based on previous experience, this improvement in convenience should result in increased efficiency and additional sales. Impact on Existing Dealers GM computes a gross registration loss, which is the number of registrations which would raise each area within the MDA to the expected penetration level (see Finding 13). This is a conservative measure of possible additional sales because it is based upon the expected penetration, which is a minimum standard, not the maximum number of sales which might be achieved by effective dealers such as Sheehan. For 1990, the gross registration loss for GMC trucks in the Fort Lauderdale MDA was 295 units, which was mostly concentrated in AGSSA 10, and in the western 2/3 of AGSSA 3. If the proposed Coral dealership had been operating in 1990, and if it had performed at the average of the performance levels of the existing Sheehan, King and Scott dealerships, it would have produced a total of 313 registrations within a 20 miles radius of the dealership, which includes some areas beyond the boundary of the Fort Lauderdale MDA. This is 18 registrations more than the gross registration loss in the entire Fort Lauderdale MDA. Computed on the same basis, sales to the more relevant group of persons registering vehicles in the Fort Lauderdale MDA would have been 286 sales. This shows a new dealer in AGSSA 10 could theoretically make 286 sales without supplanting a single sale from existing dealers in the MDA. Moreover, in 1990 151 sales were made to persons who registered the vehicles within the Fort Lauderdale MDA from sales by dealers outside the Fort Lauderdale MDA. These sales represent additional potential sales to be captured by the three existing dealers.
Recommendation It is RECOMMENDED that the application to establish the GMC Truck dealership at Coral Oldsmobile be granted. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of October 1992. WILLIAM R. DORSEY, JR. 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 22nd day of October 1992.
The Issue The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Winter Park, Florida.
Findings Of Fact Respondent is an existing franchised dealer of motorcycles manufactured by Zongshen Industrial Group (ZONG). Petitioners have proposed the establishment of a new dealership to sell the same line and make of motorcycles as those sold by Respondent. Respondent's dealership is located at 306 West Main Street, Apopka, Florida 32712. Petitioners' proposed dealership would be located at 2650 West Fairbanks Avenue, Winter Park, Florida 32789. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order denying the establishment of Petitioners' proposed franchise. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 29th day of May, 2009. COPIES FURNISHED: Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkland 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 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Patricia Fornes Zongshen, Inc. 3511 Northwest 113th Court Miami, Florida 33178 Randy Lozanas Scooter City USA, LLC 2650 West Fairbanks Avenue Winter Park, Florida 32789
The Issue The issue in this case is whether Petitioners' proposed motorcycle dealership would serve a community or territory in which Respondent's dealership is not presently providing adequate representation of the same line-make vehicles that Petitioners would offer.
Findings Of Fact On March 14, 2008, an advertisement was published in the Florida Administrative Weekly, which gave notice that, unless a protest were timely filed, the Department of Highway Safety and Motor Vehicles ("Department") intended to approve the application of Petitioner USA Wholesale Scooters, Inc. ("Wholesale Scooters") for a license to establish a new dealership at 2902 East Sunrise Boulevard, Fort Lauderdale, Florida (the "Proposed New Point"), where motorcycles manufactured by Petitioner Chuanl Motorcycle USA, Ltd. ("Chuanl") would be offered for sale. Respondent Power & Play Warehouse, Inc. ("Power & Play"), which is licensed to operate a dealership, under a franchise agreement, for the sale of Chuanl motorcycles in Pompano Beach, Florida (the "Existing Dealership"), timely filed a written complaint with the Department, protesting the intended approval of the Proposed New Point. The Proposed New Point and the Existing Dealership are both situated in Broward County, Florida. It is undisputed that the population of Broward County exceeds 300,000. At the final hearing, the parties stipulated that the Proposed New Point would be located within 12.5 miles of the Existing Dealership. Wholesale Scooters failed to present persuasive evidence demonstrating that the Existing Dealership is not providing adequate representation of Chuanl motorcycles in Fort Lauderdale, Pompano Beach, Broward County, or any other conceivably relevant community or territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Wholesale Scooters' application for a license to operate a new dealership at 2902 East Sunrise Boulevard, Fort Lauderdale, Florida, where Chuanl motorcycles would be offered for sale. DONE AND ENTERED this 3rd day of September, 2008, in Tallahassee, Leon County, Florida. 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2008. COPIES FURNISHED: Noel Farbman USA Wholesale Scooters, Inc. 2902 East Sunrise Boulevard Fort Lauderdale, Florida 33304 Lingbin Chen Chuanl Motorcycle USA Co, Ltd. 9886 Chartwell Drive Dallas, Texas 75243 Thomas McMahon Power & Play Warehouse, Inc. 550 North Flagler Avenue Pompano Beach, Florida 33060 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 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 is whether the Department of Highway Safety and Motor Vehicles should approve the establishment of a proposed dealership by SunL Group, Inc., in Gulfport, Florida.
Findings Of Fact TRM is in the business of selling motor scooters in Gulfport, which is in Pinellas County. TRM is owned by Thomas R. Malin, III. TRM is currently an authorized dealer of scooters manufactured and/or imported by Carter Brothers and Tank Sports. Those scooters sell in the $2,000 to $3,000 price range. TRM is seeking through this proceeding to become an authorized dealer of scooters imported by SunL.1 Those scooters sell in the $1,450 to $1,995 price range. No evidence was presented at the hearing regarding the location or products sold by West Coast, and there is no evidence that West Coast sells SunL scooters. There are no dealers selling SunL scooters in the Pinellas County area, according to Mr. Malin. West Coast was provided due notice of the date, time, and location of the final hearing in this case. No representative of West Coast appeared at the final hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing West Coast’s protest and approving TRM’s proposed SunL dealership in Gulfport. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 12th day of March, 2007.
The Issue The issue is whether Petitioners should be allowed to establish a new point dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co., Ltd. (ZHNG), in Jacksonville, Florida.
Findings Of Fact On October 10, 2008, the Department of Highway Safety and Motor Vehicles (Department) published a notice in the Florida Administrative Weekly. The notice advised that Galaxy Powersports, LLC d/b/a JCL International, LLC, intends to allow the establishment of Putnam City Motors, d/b/a PC Motors, as a dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co., Ltd. (ZHNG) at 7033 Beach Boulevard, Jacksonville, Duval County, Florida, on or after September 29, 2008. By letter received by the Department on October 31, 2008, Respondent, Roadpower USA LLC, opposed the establishment of the dealership selling the same products as Roadpower USA, LLC, within 11 miles from its established dealership. On November 14, 2008, the Department referred this matter to the Division of Administrative Hearings to conduct an evidentiary hearing. By Initial Order entered November 14, 2008, Petitioners and Respondent were required to provide certain information for the scheduling of the final hearing in this cause. None of the parties responded to the Initial Order. A Notice of Hearing by Video Teleconference was entered on December 12, 2008, scheduling this case for final hearing on May 7, 2009, at 1:00 p.m. An Order of Pre-hearing Instructions was entered that same date, which required the parties to exchange witness lists and copies of exhibits no later than seven days prior to the final hearing. Copies of the witness lists were also required to be filed with the Division of Administrative Hearings. No witness lists have been filed. At 1:00 p.m. on May 7, 2009, the final hearing was convened. The only persons present were the court reporter, who was at the Jacksonville site, and the undersigned, who was at the Tallahassee site. The undersigned waited until approximately 1:25 p.m., but neither the Petitioners nor the Respondent appeared for the final hearing. The hearing was adjourned at approximately 1:30 p.m. No one on behalf of Petitioners or Respondent contacted the undersigned’s office with any explanation of their non-appearance before the hearing was adjourned, or thereafter.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioners’ application for the new point dealership at issue in this case. DONE AND ENTERED this 19th day of May, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 19th day of May, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Leo Su Galaxy Powersports, LLC, d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Pete Biltoc Claudio Biltoc Putnam City Motors, Inc. 7033 Beach Boulevard Jacksonville, Florida 32216 Jim Lee Road Power USA, LLC 927 North 3rd Street Jacksonville Beach, Florida 32250
