Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Jessica E. Varn, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. DONE AND ORDERED this AY day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 4 day of May, 2013. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: Dean Bunch, Esquire Nelson, Mullins, Riley and Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john.forehand@southmotors.net David Seymour Leibowitz, Esquire Braman Management Association 2060 Biscayne Boulevard, 2"! Floor Miami, Florida 33137 davidl|@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com Jessica E. Varn Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BMW OF NORTH AMERICA, LLC, Petitioner, vs. SOUTH MOTOR COMPANY OF DADE COUNTY, d/b/a SOUTH MOTORS BMW, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. POMPANO IMPORTS, INC., Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. POMPANO IMPORTS, INC., Respondent. a a aU OOOO ee Oe eee Case No. Case No. Case No. 12-3385 12-3386 12-3387 BMW OF NORTH AMERICA, LLC, Petitioner, vs. Case No. 12-3389 SARASOTA AUTOMOTIVE MANAGEMENT, LLC, d/b/a BMW OF SARASOTA BERT SMITH OLDSMOBILE, INC., d/b/a BERT SMITH INTERNATIONAL CAPITAL EUROCARS, INC., d/b/a CAPITAL BMW IMPORT CITY, INC., d/b/a QUALITY BMW REEVES IMPORT MOTORCARS, INC., Respondents. BMW OF NORTH AMERICA, LLC, _ Petitioner, vs. Case No. 12-3390 BRAMAN MOTORS, INC., d/b/a BRAMAN BMW PALM BEACH IMPORTS, INC., d/b/a BRAMAN MOTORCARS, Respondents. ORDER CLOSING FILES AND RELINQUISHING JURISDICTION This case came before the undersigned on the Petitioner's Notice of Withdrawal of Proposed Dealer Agreement from Consideration by Respondents and Motion to Dismiss as Moot, filed January 29, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for May 13 through 17, 2013, is canceled. 2. The files of the Division of Administrative Hearings are closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this llth day of February, 2013, in Tallahassee, Leon County, Florida. aw JESSICA E. VARN 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 February, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 John W. Forehand, Esquire South Motors Automotive Group 16165 South Dixie Highway Miami, Florida 33157 john. forehand@southmotors.net Dean Bunch, Esquire Nelson, Mullins, Riley, and Scarborough LLP Suite 202 3600 Maclay Boulevard, South Tallahassee, Florida 32312 dean.bunch@nelsonmullins.com David Seymour Leibowitz, Esquire Braman Management Association 2nd Floor 2060 Biscayne Boulevard Miami, Florida 33137 davidl@bramanmanagement.com Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 rsox@dealerlawyer.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS BMW OF NORTH AMERICA, LLC, Petitioner, v8. Case No. 12-3385 SOUTH MOTOR COMPANY OF DADE COUNTY, d/b/a SOUTH MOTORS BMW, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. Case No. 12-3386 POMPANO IMPORTS, INC., d/b/a Vista BMW of Pompano Beach, Respondent. BMW OF NORTH AMERICA, LLC, Petitioner, vs. . Case No. 12-3387 POMPANO IMPORTS, INC., d/b/a Vista BMW of Coconut Creek, Respondent. Filed January 29, 2013 8:53 AM Division of Administrative Hearings BMW OF NORTH AMERICA, LLC, Petitioner, vs. SARASOTA AUTOMOTIVE MANAGEMENT, LLC, d/b/a BMW OF SARASOTA; BERT SMITH OLDSMOBILE, INC., d/b/a" BERT SMITH INTERNATIONAL; CAPITAL EUROCARS, INC., d/b/a CAPITAL BMW; IMPORT CITY, INC., d/b/a QUALITY BMW; and REEVES IMPORT MOTORCARS, INC., Respondents. BMW OF NORTH AMERICA, LLC, Petitioner, vs. BRAMAN MOTORS, INC., d/b/a BRAMAN BMV, and PALM BEACH IMPORTS, INC., d/b/a BRAMAN MOTORCARS, Respondents. Case No. 12-3389 Case No. 12-3390 NOTICE OF WITHDRAWAL OF PROPOSED DEALER AGREEMENT FROM CONSIDERATION BY RESPONDENTS AND MOTION TO DISMISS AS MOOT Comes now BMW of North America, LLC ("BMW NA") and notifies the Administrative Law Judge that it has withdrawn its notice to Respondents concerning the proposed dealer agreement which is the subject of this proceeding. withdrawal of notice, BMW NA moves to dismiss this matter as moot. motion, BMW NA states: As a result of this In support of its 1. On July 17, 2012, BMW NA notified Respondents of its intent to offer them the superseding/merged BMW Center Agreement for BMW passenger cars and BMW light trucks ("the Merged Agreement"), which was proposed to supersede, modify and replace the existing BMW Dealer Agreement for BMW passenger cars and the existing BMW SAV Center Agreement for BMW light trucks (collectively "the Existing Agreements"). 2. Respondents filed complaints with the Department of Highway Safety and Motor Vehicles ("DHSMV"), contesting the terms of the proposed Merged Agreement. These complaints were transferred by the DHSMV to the Division of Administrative Hearings. 3. On January 29, 2013, BMW NA, by letters attached hereto as Exhibit A, notified Respondents, as follows: BMW of North America, LLC ("BMW NA") hereby withdraws its notice, transmitted to you on July 17, 2012, with respect to the superseding/merged BMW Center Agreement (‘Agreement’) for BMW passenger cars and BMW light trucks. You and your successors may remain on your current forms of: dealer agreements: the BMW Dealer Agreement for BMW passenger cars (‘Old Agreement’) and the BMW SAV Center Agreement for BMW light trucks (‘SAV Center Agreement') or sign the Agreement which was offered to you, at any time in the future. 4. Inasmuch as BMW NA has withdrawn the July 17, 2012 notice that entitled Respondents to file their protests, and confirmed to Respondents that they and their successors', have the option to remain on the Existing Agreements unless, at any time in the future, they elect to sign the Merged Agreement, Respondents’ protests should now be dismissed as moot. ' Motor vehicle dealerships, and equity interests therein, are transferable to buyers as provided in Section 320.643, Florida Statutes. 3 Respectfully submitted, Lh. bL Dean Bunch dean.bunch@nelsonmullins.com C. Everett Boyd, Jr. everett. boyd@nelsonmullins.com Nelson Mullins Riley & Scarborough LLP 3600 Maclay Blvd., S., Suite 202 Tallahassee, FL 32312 Telephone: (850)907-2505 Attorneys for BMW of North America, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that the forgoing was served by electronic transmission, this at day of January, 2013, upon the following: | Jennifer Clerk, Agency Clerk clark. jennifer@hsmv.state.fl.us Dept. of Highway Safety Neil Kirkman Bldg., Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, FL 32399 John W. Forehand, Esq. john. forehand@southmotors.net 16165 South Dixie Highway Miami, FL 33157 Richard N. Sox, Esq. rsox@dealerlawyer.com Nicholas A. Bader, Esq. nbader@dealerlawyer.com 2822 Remington Green Circle Tallahassee, FL 32308 David Leibowitz, Esq. davidl@bramanmanagement.com Timothy Grecsek, Esq. timothyg@bramanmanagement.com Braman Management Association 2060 Biscayne Bivd., Second Floor Miami, FL 33137 ~ Attorney
The Issue Whether the proposed dealership should be approved.
Findings Of Fact On August 1, 2008, in the Florida Administrative Weekly, Volume 34, Number 31, a Notice of Publication for a New Point Franchise Motor Vehicle Dealer in a County of Less than 300,000 Population was published. The notice provided that Vento North America, LLC, intended to allow the establishment of H. Long Investments Corp. d/b/a Tropical Scooters of Vero, as a dealership for the sale of motorcycles manufactured by Qianjaing Motorcycle Group Corp. (QINJ) at 4901 North U.S. Highway 1, Unit J, Vero Beach (Indian River County), Florida. On August 12, 2008, the Respondent timely filed a protest of the establishment of the Petitioner's dealership and represented that 25 percent of its retail sales were within a 20-mile straight line distance of the proposed dealership during any 12-month period out of the 36-month period immediately preceding the filing of the protest. Based upon the Petitioner's evidence, its proposed dealership location is not less than 21.51 miles from the Respondent's dealership. The Respondent did not establish that any of its sales are within 20 miles of the proposed dealership. The Respondent did not establish that it currently markets any motorcycle to be sold by the proposed dealership. More specifically, the Respondent did not offer evidence that it has an agreement for the same line-make vehicle to be sold by the proposed dealer. Vento North America, the distributor of the motorcycle brand/model to be sold at the proposed dealership, did not attend the hearing. Notice of the formal hearing was provided to all parties of record at their addresses of record. The Respondent did not timely contest the location, date, or time for the hearing.
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 dismissing the protest filed by the Respondent and approving the dealership proposed by this Petitioner. DONE AND ENTERED this 16th day of December, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2008. 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 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Jim Buchheit Best Buy Vehicles, Inc. 3525 South US Highway 1 Fort Pierce, Florida 34982 Heidi S. Long H. Long Investments, Corp. Tropical Scooters of Vero 4901 North US highway 1, Unit J Vero Beach, Florida 32967 Alma Gonzalez Vento North America 6190 Cornerstone Court E, Suite 200 San Diego, California 92121
Findings Of Fact The Parties. Chrysler is a manufacturer of trucks and automobiles, including Jeep trucks and Eagle automobiles. Milton Dodge is a proposed dealer/operator of a proposed new Jeep-Eagle dealership. Milton Dodge currently sells Chrysler, Plymouth, Dodge and Dodge trucks. Don Dawson is an existing franchised Jeep-Eagle dealership located on U. S. 29, Pensacola, Escambia County, Florida. Don Dawson is located approximately 17.5 miles from the proposed Milton Dodge dealership location. Santa Rosa County, where the new dealership is to be located, has a population of less than 300,000 persons. All of the parties have standing to participate in this proceeding. The Application for A New Dealership. Chrysler has sought a permit to establish an additional Jeep-Eagle dealership for the sale of Jeep trucks and Eagle automobiles in Milton, Santa Rosa County, Florida. Don Dawson filed a timely protest to Chrysler's application pursuant to Section 320.642, Florida Statutes. The Community or Territory. The Milton Dodge proposed new dealership is to be located on U. S. 90, West of Milton, Santa Rosa County, Florida. Chrysler assigns its franchised dealerships a primary area of responsibility called a "sales locality." The sales locality of each dealer is specified in the dealer agreement between the dealer and Chrysler. Each sales locality consists of post office towns. A post office town is an area within which mail is delivered from a particular post office. Post office towns are not limited to political boundaries. The sales locality for Milton Dodge, the Milton sales locality, consists of the towns of Milton, Bagdad, and Harold, all of which are located in Santa Rosa County, Florida. To the west and southwest of the Milton sales locality is the Pensacola sales locality. The Pensacola sales locality consists of the towns of Molino, Cantonment, Gonzalez, Gulf Breeze, Lillian and Pensacola. All of the towns, except Lillian, Alabama, are located in Escambia County, Florida. Pursuant to its dealer agreement with Chrysler, Don Dawson is located in the Pensacola sales locality. To the east and southeast of the Milton sales locality is the Fort Walton Beach sales locality. This sales locality consists of the towns of Niceville, Shalimar, Destin, Mary Esther, Valparaiso and Fort Walton Beach, and Eglin Air Force Base, all of which are located in Okaloosa County, Florida. There is a Jeep-Eagle dealership, Lee Jeep Eagle, located in Fort Walton Beach. The sales locality assigned to a dealer is representative of the area in which the dealer is expected to have a competitive advantage over the same line-make dealers simply because of location. The Milton sales locality and the Pensacola sales locality are separate and distinct markets. The evidence proved, and the Petitioners and Don Dawson both agreed in their proposed recommended orders, that the relevant community or territory in this proceeding is the Milton sales locality. Adequacy of Representation. General. Once the community or territory has been identified, Section 320.642, Florida Statutes, requires a determination as to whether existing dealers have been providing "adequate representation" of the line-make of the new dealership. In order to determine whether there has been adequate representation in the Milton sales locality of Jeep trucks and Eagle automobiles, eleven factors set out in Section 320.642(2)(b), Florida Statutes, are to be considered. In order to determine whether existing dealers have been providing adequate representation, a reasonable standard of performance may be determined as a measure of proper performance. The standard(s) for comparison in this matter is described, infra, in section II.D. of this Recommended Order. Section 320.642(2)(b)1, Florida Statutes; Impact on Existing Dealers. Only the possible impact on Don Dawson, the protesting dealer in this proceeding, may be considered in applying this factor. New vehicle transactions, including sales, servicing, parts' sales and financing and insurance, represent approximately 70% of Don Dawson's income. In 1990, Don Dawson sold new motor vehicles to persons whose addresses were within the Milton sales locality. In 1989, Don Dawson sold nine automobiles and trucks (5% of its total 178 sales) to customers whose addresses were within the Milton sales locality. In 1989, approximately 59% of Don Dawson's total sales were to persons whose addresses were within the Pensacola sales locality. During 1990, approximately 55% of Don Dawson's new motor vehicle sales were to persons whose addresses were within 20 miles of the proposed new dealership location. In 1989, Don Dawson had a gross profit per new vehicle of $1,322.00. Don Dawson lost $101,004.00 on the sale of 179 new vehicles. Don Dawson was profitable in 1990 ($13,102.00; gross profit per new vehicle of $1,503.00 on 195 new vehicles) and the first eight months of 1991. During 1990, Don Dawson paid a total of $75,000.00 to $80,000.00 to its equity owners. Although the evidence supports a conclusion that it is possible that Don Dawson may suffer some loss in sales of Jeep trucks and/or Eagle automobiles, the weight of the evidence failed to prove what the total or general financial impact of the proposed new dealership might be on Don Dawson. Based upon the findings of fact, infra, concerning inadequate market penetration in the Milton sales locality, it is likely that the addition of the proposed new dealership will not negatively impact on Don Dawson's sales opportunities. Section 320.642(2)(b)2, Florida Statutes; Investment and Obligations of Existing Dealers. Don Dawson has a considerable investment in tools, parts and improvements to the property it leases from Chrysler. The evidence failed to prove that Don Dawson's investment is inadequate. Section 320.642(2)(b)3, Florida Statutes; Reasonably Expected Market Penetration for the Community or Territory. In analyzing the proper performance in a market, it is appropriate to compare the market share or market penetration of vehicle registrations within a target market with the share of vehicle registrations in an appropriate comparison market. It is appropriate to use a "segmented" approach in comparing markets. For example, in order to determine Jeep truck (or Eagle automobiles) market share, the total truck industry (or similar automobiles to those manufactured by Eagle) are compared. Jeep and Eagle market penetration in the nation as a whole and in Florida sales localities is represented by national averages and Florida sales locality averages. National markets and markets in the Florida sales localities include adequately and inadequately represented Jeep and Eagle represented markets. Therefore, these averages are very conservative. In light of the fact that the averages are the conservative it is reasonable to use the higher of the national or the Florida sales localities averages as a starting point. For Jeep, the higher standard is the national average penetration. For Eagle, the higher standard is the Florida sales localities average penetration. Florida penetration is based upon all of Florida except four small towns which are included in Alabama sales localities. It also includes one town in Alabama included in the Pensacola sales locality. After determining the national and Florida averages, it is appropriate to compare how other areas lived up to these standards. Of 68 sales localities in Florida, 32 performed above national averages for Jeep. Thirty of those that performed above national average and all that are above the Florida average (12 sales localities) have Jeep representation. A similar result is reached when Eagle penetration is reviewed. A consideration of demographics and lifestyle characteristics, based upon a comparison of the relative popularity of various vehicle types in the Milton sales locality, independent of brand type, compared to the relative popularity of the same vehicle types in Florida and nationally, confirms the reasonableness of the use of Florida and national average penetration rates as a standard. A reasonable market share expectation for Jeep for the Milton sales locality is 4.74%. A reasonable market share expectation for Eagle for the Milton sales locality is 0.95%. As is discussed, infra, Jeep-Eagle penetration in the Milton sales locality has been below these expected penetration rates indicating inadequate representation in the community or territory. The proposed new dealership location is part of a geographic area designated by Chrysler as the New Orleans Zone. This zone consists of part of the panhandle area of Florida (the northwest portion of Florida), Alabama, Mississippi and Louisiana. Like Florida and the nation as a whole, there are areas within the New Orleans Zone that do not have Jeep-Eagle dealers. Unlike Florida, where there are only 38 sales localities and 20 markets without a Jeep-Eagle dealer, there are 111 sales localities and 47 markets in the New Orleans Zone where there is no Jeep-Eagle dealer. Each Jeep-Eagle dealership is in effect assigned a minimum sales responsibility review. This review is based upon a comparison of a dealer's sales with average sales in the zone the dealer is assigned to. The weight of the evidence, however, failed to prove that dealers who meet their minimum sales responsibility are necessarily providing adequate representation. Although a comparison of sales performance of each dealer in the New Orleans Zone is made by Chrysler with the average performance within the zone as a whole, and the proposed new dealership location is within the New Orleans Zone, the weight of the evidence failed to prove that the penetration rate in the New Orleans Zone is the appropriate standard for measurement of adequate representation. The New Orleans Zone is an area established for administrative convenience. The New Orleans Zone was not established for marketing comparisons. The evidence did not prove that, other than geographic proximity, the zone is comparable. Section 320.642(2)(b)4, Florida Statutes; Actions of the Licensee Denying Existing Dealers Opportunity for Reasonable Growth, Market Expansion or Relocation. The weight of the evidence failed to prove that Chrysler has taken any action to deny Don Dawson or any other exiting dealer opportunity for reasonable growth, market expansion or relocation. The site that Don Dawson is located at is controlled by Chrysler. Don Dawson must negotiate a lease of its facilities from Chrysler and must get approval from Chrysler to add additional vehicle types. Don Dawson has had difficulty at times getting certain vehicle types from Chrysler. The weight of the evidence, however, failed to prove that any of these facts constituted any action by Chrysler to prevent Don Dawson from growing or expanding its market, or that these facts relate to any request of Don Dawson to relocate. Section 320.642(2)(b)5, Florida Statutes; Attempts by the Licensee to Coerce Existing Dealers into Consenting. The weight of the evidence failed to prove that this factor is relevant in this proceeding. Section 320.642(2)(b)6, Florida Statutes; Geographic Factors. It is approximately 17.5 miles from the proposed Milton Dodge dealership location and Don Dawson. It takes approximately 29 minutes to travel by automobile from Milton Dodge to Don Dawson. It takes approximately 51 minutes to drive the 40.4 miles from Milton Dodge to Lee Jeep Eagle in Fort Walton Beach. Jeep Eagle buyers in Pensacola and Fort Walton Beach must travel fairly extensive distances to comparison shop. Evidence concerning relevant geographic factors support approval of the new Milton Dodge dealership. Section 320.642(2)(c)7, Florida Statutes; Benefits to Consumers. Consumers in the Milton sales locality will benefit because they will not have to travel to Pensacola or Fort Walton Beach if they are interested in Jeep-Eagle vehicles. It will be easier for consumers in Pensacola to comparison shop. There will be some slight benefit to consumers in the Milton sales locality because Jeep trucks and Eagle automobiles will be more readily accessible to them if a new dealership is located in the proposed new location. The possible benefits to consumers supports approval of the proposed new dealership. Section 320.642(2)(b)8, Florida Statutes; Compliance with Dealer Agreements. The weight of the evidence failed to prove that any existing dealers are not in full compliance with the dealer agreements with Chrysler. Section 320.642(2)(b)9, Florida Statutes; Adequate Inter- and Intra-Brand Competition. There is a lack of intra-brand competition in the Milton sales locality. This contributes to inadequate representation for Jeep-Eagle vehicles in the Milton sales locality. The negative impact of the lack of proximity of a Jeep-Eagle dealer to the Milton sales locality on representation is evidenced, in part, by a comparison of market penetration in Milton compared with market penetration in Pensacola, where a dealer is located. Existing Jeep-Eagle dealers are not providing adequate intra-brand competition in the Milton sales locality. Because of high population growth in Santa Rosa County and high inter- brand competition in the Milton sales locality, representation of Jeep-Eagle is inadequate based upon inter- and intra-brand competition. Adding a Jeep-Eagle dealership to the Milton sales locality is a reasonable solution to the inadequate representation in the Milton sales locality when the performance of similar line-makes with dealerships located in the Milton sales locality are compared to national and Florida average penetration rates. Line-makes not represented in the Milton sales locality have low penetration rates. Section 320.642(2)(b)10, Florida Statutes; Economic and Marketing Conditions. On a nationwide basis there have been significant declines of approximately 21% in the sales of Jeep trucks and Eagle automobiles between 1989 and 1990. Looking at the trend in sales of Jeep and Eagle vehicles over a longer period of time, however, indicates the very cyclical nature of vehicle sales. Although the current condition of vehicle sales and the economy as a whole gives reason to consider the new dealership with some skepticism, the weight of the evidence failed to prove that the recent trend in the economy or vehicle sales should be determinative in this case. Pensacola, Milton and the surrounding areas have experienced a significant growth between 1980 and 1990. Santa Rosa County, where Milton is located, is projected through 1995 to experience substantial growth in total population, population 16 (the driving age) and over, and in household trends. Although much of the projected growth will occur along the Gulf of Mexico coast, as opposed to around Milton, Santa Rosa, including Milton, should continue to be an attractive area for vehicle sales. This finding is based upon the data concerning income of the population and the favorable economic conditions existing and forecasted for the area (see Petitioner's proposed finding of fact 73). Section 320.642(2)(b)11, Florida Statutes; Volume of Registrations By the Existing Dealer in the Community or Territory of the Proposed Dealer. The penetration by Jeep in the Milton sales locality during the period 1987-1990 was significantly less that the penetration which reasonably could be expected (see finding of fact 39) based upon national and Florida penetration rates. Although Eagle performed a little better in more recent years than Jeep, the penetration by Eagle during the period 1987-1990 was also significantly less that the penetration which reasonably could be expected based (see finding of fact 39) upon national and Florida penetration rates. Conclusion. Based upon a balanced consideration of the factors of Section 320.642(2)(b), Florida Statutes, the proposed new Jeep-Eagle dealership should be approved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order approving the application to establish a new Jeep-Eagle dealership on 800 West Highway 90, Milton, Santa Rosa County, Florida. DONE and ENTERED this 18th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 18th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Chrysler's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 and 6. 3 and 6. 3 3-5 and 7. Conclusions of law. See 19-21. Conclusions of law. Hereby accepted. 7 9-10. 8 12-13. 9 11 and 14. Cumulative. 16 and hereby accepted. 12-14 Cumulative. 15 24 and hereby accepted. 16-18 Hereby accepted. 19-22 Although these findings of fact are correct, it is unnecessary to consider the alternative community or territory of the Milton/Pensacola area identified by Chrysler. 23 See 18. Don Dawson did not have the burden of proof. 24 19. 25 See 47, 53-54 and 57. See 47. Hereby accepted. See 57. No a finding of fact. 30 32-33. 31 Don Dawson did not have the burden of proof. Don Dawson did provide some proof concerning this issue. 32 32-34. 33 35. 34 37. 35 37 and hereby accepted. 36-38 Subordinate facts. 39-41 See 38. 42 39. 43-44 Not necessary. See proposed findings of fact 19-22. 45-46 39 and hereby accepted. Not necessary. See proposed findings of fact 19-22. Subordinate fact. See 69. 50 69. 51-53 Cumulative facts. Not necessary. See proposed findings of fact 19-22. Cumulative facts. Not necessary. See proposed findings of fact 19-22. Hereby accepted. 58 See 41-44. 59 43-44. 60 41. 61 Hereby accepted. 62 See 41-44. 63-64 Hereby accepted. 65 See section K. 66 61. 67 Hereby accepted. 68 See 61, 66-67. 69 66-67. 70 67. 71-72 68 and hereby accepted. Cumulative facts. 66 and hereby accepted. 75-76 59 and hereby accepted. 77 58 and 60. 78-79 Too speculative. 80 48-49. 81 51. 82 61. See 58-62 and hereby accepted. See 59 and hereby accepted. 85 62. 86 Hereby accepted. 87 See 45-46. 88 22. 89 26. 90 See 28. 91 29. 92-93 Hereby accepted. Cumulative facts. See 35. 96 See 30-31. 97 Not relevant. Don Dawson's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 9. 2 11-12. 3 Hereby accepted. 4 17. 5* 24. 6* 48. 6* See 18. 5* 32. 6* 33 and hereby accepted. 7 40. See 42. Hereby accepted. Not supported by the weight of the evidence. See 42- 44. Not relevant. Not supported by the weight of the evidence. Based on hearsay. Not relevant. See 42-44. Not relevant. 15 63. 16 Not relevant. At issue is the penetration rate in the Milton sales locality. 17 25-26. 18 27. 19 See 46. 20 23. 21 30. 22 Not relevant. Nor did the evidence prove why the offer was withdrawn. 23 2. 24-26 Not supported by the weight of the evidence. 27 See 25-26. The last sentence is not supported by the weight of the evidence. * These duplicative numbered findings of fact all appear on page 4 of Don Dawson's proposed recommended order.e COPIES FURNISHED: Dean Bunch, Esquire Cabaniss, Burke & Wagner, P.A. 851 East Park Avenue Tallahassee, Florida 32301 Edward H. Weeby, Esquire Office of General Counsel Chrysler Corporation 12000 Chrysler Drive Detroit, Michigan 48288 John L. Fiveash, Jr., Esquire Rhodes Building, Suite 106 41 North Jefferson Street Pensacola, Florida 32501-5643 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Myers & Forehand 402 North Office Plaza Drive Suite B Tallahassee, Florida 32301 Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles Room A432 Neil Kirkman Building Tallahassee, Florida 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0500
The Issue The issues in this case are whether Petitioner has standing to protest the establishment of an additional motorcycle dealership; and, if so, whether Petitioner is adequately representing this line of motorcycles in the relevant territory or community pursuant to section 320.642, Florida Statutes (2018).1/
Findings Of Fact Tropical Scooters is located at 11594 Seminole Boulevard, Largo, Florida 33778. It has been in the business of selling scooters and other motorized vehicles for ten years. Michele Stanley is the owner and manager of Tropical Scooters and she has knowledge regarding its purchasing and franchise agreements, inventory, and sales figures. Although no franchise agreement was offered into evidence, Ms. Stanley testified Petitioner has an agreement with a distributor, Pacific Rim International, d/b/a Ice Bear ATV (Ice Bear), to sell YNGF motorcycles. Ice Bear has been supplying Petitioner with YNGF motorcycles for approximately two and a half years. Tropical Scooters has had a good relationship with this distributor and has encountered no problems selling the YNGF line. In the last 18 months, Tropical Scooters has sold 137 YNGF units and currently has 23 units at its showroom. Ms. Stanley discovered that Respondents had applied with the Department to establish a YNGF motorcycle dealership at 9145 66th Street North, Pinellas Park, Florida 33782, from the February 22, 2018, notice published by the Department in the Florida Administrative Register.2/ Subsequently, Tropical Scooters filed a timely complaint with the Department challenging Respondents’ application. Ms. Stanley was familiar with the proposed location of the new dealership and stated that it was four miles “as the crow flies” from the Tropical Scooters showroom. Tropical Scooters is an existing dealership that sells YNGF motorcycles and is within 12.5 of the location proposed by Powersports and Motrac for the new dealership. Therefore, Tropical Scooters has standing to bring this challenge pursuant to section 320.642(3). There was no evidence that Tropical Scooters’ representation of the YGNF line of motorcycles was inadequate in its community or territory as described in section 320.642(2)(b).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department denying the new dealership application of Respondents for the sale and service of Sanmen County Youngfu Machine Co., Ltd., vehicles at 9145 66th Street North, Pinellas Park, Pinellas County, Florida. DONE AND ENTERED this 27th day of July, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 27th day of July, 2018.
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 The issue in this case is whether an application for a motor vehicle dealership filed by Petitioners should be approved.
Findings Of Fact Lance Powersports, Inc., is seeking to establish a new point motor vehicle dealership in Longwood, Florida, for motorcycles manufactured by ZHNG. Action Orlando is an existing franchise motor vehicle dealer for line-make ZHNG, located within 12.5 miles of the proposed new point motor vehicle dealership location. Action Orlando timely filed a protest of Lance Powersports, Inc.’s, proposed dealership. There is no evidence that Acton Orlando is not providing adequate representation within the territory of the motor vehicles at issue in this proceeding.
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 application for establishment of the motor vehicle dealer franchise at issue in this case. DONE AND ENTERED this 5th day of May, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 5th 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 Gene Chang Lance Powersports, Inc. 5200 Ontario Mills Parkway, Suite 100 Ontario, California 91764 Elliot Blackwelder ECO Motor Sports & Scooters, LLC 725 Ronald Regan Boulevard, Suite 100 Longwood, Florida 32750 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Carl A. Ford, Director Division of Motor Vehicles Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Petitioner's applications to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN), should be granted. PRELIMANARY STATEMENT In the Florida Administrative Weekly, Volume 34, Number 21, May 23, 2008, the Department of Highway Safety and Motor Vehicles (DHSMV) published two Notices of Publication for a New Point Franchise Motor Vehicle Dealer in a County of Less than 300,000 Population. Said notices advised that Petitioner Gator Moto, LLC and Gator Moto, LLC (Petitioner) intended to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN). On or about June 3, 2008, Respondent Austin Global Enterprises, LLC, d/b/a New Scooters 4 Less (Respondent) filed two complaints with DHSMV about the proposed new motorcycle dealerships. DHSMV referred both complaints to the Division of Administrative Hearings on June 10, 2008. On July 2, 2008, Respondent filed its Compliance with Initial Order. On July 7, 2008, Petitioner filed Petitioner's Compliance with Initial Order Division of Administrative Hearings (DOAH) Case Nos. 08-2735 and 08-2736. This is the only communication that DOAH has received from Petitioner. On July 23, 2008, Administrative Law Judge Barbara J. Staros entered an Order of Consolidation for DOAH Case Nos. 08-2735 and 08-2736. On July 24, 2008, Judge Staros issued a Notice of Hearing, scheduling a final hearing on December 4, 2008. On November 26, 2008, Respondent filed its Compliance with Pre-hearing Instructions. Petitioner did not respond to the Order of Pre-hearing Instructions. On December 1, 2008, Judge Staros issued an Amended Notice of Hearing. The amended notice only changed the commencement time for the hearing. DOAH subsequently transferred these consolidated cases to the undersigned. On the morning of the December 4, 2008, hearing, DHSMV advised the undersigned's office that DHSMV had failed to arrange for the appearance of a court reporter at the hearing. Accordingly, the undersigned issued an Order Granting Continuance and requiring the parties to confer and provide DOAH with mutually-agreeable dates for re-scheduling the hearing. On December 17, 2008, Respondent filed its unilateral Compliance with Order Granting Continuance. Respondent filed this pleading after an unsuccessful attempt to confer with Petitioner. On December 18, 2008, the undersigned issued a Notice of Hearing and Order of Pre-hearing Instruction. The notice scheduled the hearing for February 9, 2008. On February 3, 2007, Respondent filed its unilateral Compliance with Order of Pre-hearing Instructions. Petitioner did not file a response to the Order of Pre-hearing Instructions. When the hearing commenced, Petitioner did not make an appearance. Respondent made an appearance and presented the testimony of Colin Austin, Respondent's Managing Member. Respondent did not offer any exhibits. The hearing transcript was not filed with DOAH. Neither party filed proposed findings of fact and conclusions of law.
Findings Of Fact Respondent has standing to protest Petitioner's applications pursuant to Section 320.642(3)(a)2., Florida Statutes (2008). According to DHSMV's published notice, Petitioner intended to establish two new motorcycle dealerships at 2106 Northwest 67th Place, Suite 15, Gainesville, Florida, on or after May 9, 2008. This location is only 4.5 miles from Respondent's place of business. At some point in time, Petitioner relocated its business to 7065 Northwest 22nd Street, Suite A, Gainesville, Florida. This location is only 5.3 miles from Respondent's place of business. Petitioner's application indicated that Petitioner intended to establish itself as a dealer of SHEN and JMSTAR motorcycles. Currently, Respondent sells those motorcycles under License No. VF/1020597/1. Respondent currently supplies itself with SHEN and JMSTAR products from a United States distributor. Respondent has a good faith belief that Petitioner intends to import the motorcycles and related products directly from the Chinese manufacturers. In that case, Petitioner would be able to sell the products at a lower price than Respondent and thereby deny Respondent the opportunity for reasonable growth. Petitioner did not notify DOAH about a change of address. DOAH's notices and orders directed to Petitioner at its address of record have not been returned. Petitioner has not communicated with DOAH since filing a response to the Initial Order. Petitioner did not make an appearance at the hearing. Apparently, Petitioner has abandoned its applications to establish the new dealerships.
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 Petitioner's applications. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 16th day of February, 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 Collin Austin Austin Global Enterprise, LLC 118 Northwest 14th Avenue, Suite D Gainesville, Florida 32601 Justin Jackrel Gator Moto, LLC 4337 Northwest 35th Terrace Gainesville, Florida 32605 Justin Jackrel Gator Moto, LLC 2106 Northwest 67th Place, Suite 15 Gainesville, Florida 32653 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 Petitioners should be permitted to establish an additional dealership for the sale of motorcycles manufactured by Zhejiang Taizhou Wangye Power Company, Ltd. ("ZHEJ").
Findings Of Fact Based on the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: On April 17, 2009, the Florida Administrative Weekly published a notice that JCL International intended to allow the establishment of Extreme Motor Sales as a dealership for the sale of motorcycles manufactured by ZHEJ at the Orange Blossom Trail location. The notice also stated that the "new point" location for the proposed dealership is in a "county of more than 300,000 population, according to the latest population estimates of the University of Florida, Bureau of Economic and Business Research." Respondent is an existing franchised dealer of motorcycles manufactured by ZHEJ. Respondent's dealership is located at 306 West Main Street in Apopka, Florida. The driving distance between Respondent's dealership and the location of the new dealership that JCL International proposes to establish is 3.89 miles.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles issue a final order denying Petitioners, Galaxy Powersports, LLC, d/b/a JCL International, LLC, and Extreme Motor Sales, approval to establish a new ZHEJ motorcycle dealership at 1918 South Orange Blossom Trail, Apopka, Florida. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 January, 2010.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by James H. Peterson, III, 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 correspondence filed by Respondent, withdrawing its petition. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Swanders, Inc. d/b/a Swanders Auto Mart be granted a license for the sale of motorcycles manufactured by Qianjiang Motorcycles Group Corporation (QINJ) at 5546 North Lecanto Highway, Beverly Hills (Citrus County), Florida 34465 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed February 26, 2010 8:00 AM Division of Administrative Hearings. DONE AND ORDERED this 2'/'iofFebruary, 2010, in Tallahassee, Leon County, Florida. or Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this 11.5-1- day of February, 2010. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Derick David Affordable ATV's, Inc. d/b/a Axis Powersports 3131 East Gulf to Lake Highway Inverness, Florida 34453 Bobbette Lynott Classic Motorcycles and Sidecars, Inc. Post Office Box 969 Preston, Washington 98050 Carl Swanders Swanders, Inc. d/b/a Swanders Auto Mart 5546 North Lecanto Highway Beverly Hills, Florida 34465 James H. Peterson, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
