The Issue The issue in this case is whether Vista Motors' new BMW dealership at 4401 West Sample Road, Coconut Creek, resulted from a relocation and reopening of Vista Motors' former BMW dealership at 700 North Federal Highway, Pompano Beach, in compliance with Section 320.642(5)(b), Florida Statutes, which grants certain "reopening" dealers an exemption from protest.
Findings Of Fact In 1996, Intervenor BMW of North America, LLC ("BMW NA")2 unveiled a "market strategy" to all of the BMW dealers doing business in Palm Beach, Broward, and Miami-Dade Counties (hereafter, collectively, the "South Florida Dealers") whereby each of them would be granted an additional or "satellite" BMW dealership3 provided, among other conditions, that each dealer agreed to waive its protest rights under Section 320.642, Florida Statutes, with regard to these satellite dealerships.4 The South Florida Dealers comprised three distinct business enterprises, which were often identified with reference to their respective principals: Norman Braman, Charles Dascal, and J. S. Holman. Mr. Braman held interests in BMW dealerships located in Miami and West Palm Beach. One of Mr. Braman's companies was (and is) Petitioner Palm Beach Imports, Inc., d/b/a Braman Motorcars ("Braman"), which is the dealer operating in West Palm Beach. Mr. Dascal held interests in BMW dealerships located in Broward County and in Miami. One of Mr. Dascal's companies was (and is) Intervenor Pompano Imports, Inc., d/b/a Vista Motors ("Vista"), which operated a BMW dealership in Pompano Beach until October 7, 2003, and now does business as a BMW dealer in the City of Coconut Creek, Florida. Mr. Holman was a principal in Ft. Lauderdale Imports, Ltd. ("Lauderdale"), a dealer doing business in Ft. Lauderdale. For ease of reference the South Florida Dealers will be referred to individually as Braman, Vista, and Lauderdale.5 As originally conceived and formally presented to the South Florida Dealers in December 1996, BMW NA's market strategy called for Braman to be awarded a satellite dealership in Delray Beach, a municipality which is situated in the southern part of Palm Beach County, on the coast. Vista and Lauderdale, under the original plan, would have been offered satellite locations in Broward County west of the Turnpike. BMW NA and the South Florida Dealers never reached an agreement regarding this particular strategy, however, because Vista objected to the proposed Braman satellite in Delray Beach. Notwithstanding the absence of an agreement involving all of the South Florida Dealers, at some point in 1997 Vista and BMW NA revisited the possibility, which had been discussed from time to time over the past several years, of relocating Vista's BMW dealership in Broward County from its Pompano Beach location to a better location. Vista's facility in Pompano Beach, whose street address was 700 North Federal Highway ("N. Federal Hwy"), had become outdated and cramped, having been built decades earlier, and BMW NA and Vista wanted Vista to have a larger, more modern shop. Also, moving westward would place the dealership closer to Interstate 95 and the Turnpike, making it more accessible to customers. Thus, relocation made sense for a number of reasons. In mid-1997, BMW NA approved a plan to move Vista's BMW dealership to a location in the City of Coconut Creek, Florida, which is in western Broward County. Acquiring the property to which Vista's dealership would relocate took time. An initial deal fell through due to title defects. In late 1998, Vista entered into a contract to purchase the "Lyons Creek piece," an 11-acre parcel located near the intersection of West Sample and Lyons Roads in Coconut Creek. A few months later, by letter dated March 24, 1999, BMW NA notified Braman that Vista had requested permission to relocate its dealership to this property. In the meantime, Vista launched another project: the expansion of its service department at 700 N. Federal Hwy. To accomplish this, Vista rented property, via a lease dated February 1, 1999, from a neighboring automobile dealership operated by Daewoo Motor America, Inc. ("Daewoo"). The Daewoo dealership's address was 744 N. Federal Hwy. Through its lease with Daewoo, Vista obtained the right to use 24 "work stalls" located in an automobile service center at 744 N. Federal Hwy. This arrangement increased Vista's service capacity, allowing the BMW dealership to handle a larger volume of the lucrative maintenance and repair business than had previously been possible. Vista's customers probably were not aware of the expansion, however, since all consumer transactions continued to take place at 700 N. Federal Hwy. By letter dated May 12, 1999, BMW NA notified Respondent Department Of Highway Safety and Motor Vehicles (the "Department") that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to the Lyons Creek piece. BMW NA and Vista took the position that, pursuant to Section 320.642(5), Florida Statutes,6 the proposed reopening of Vista's dealership at the new location in Coconut Creek should not be considered subject to competing dealers' administrative protests. Vista finally obtained title to the Lyons Creek piece in March 2000. Throughout the rest of the year 2000, Vista proceeded to take steps towards relocating its BMW dealership, having architectural plans for the new facilities drawn up and applying for the necessary permits. In late 2000, a new opportunity arose for Vista. A piece of property located at 4401 West Sample Road ("W. Sample Rd") in Coconut Creek became available at an attractive price. This property, which comprised approximately 19 usable acres, suited Vista's needs better than the Lyons Creek piece because, in addition to being larger, it included existing dealership facilities, having once been the location of an AutoNation dealer. Within a short time, Vista entered into a contract to purchase the property at 4401 W. Sample Rd. Now, plans to relocate Vista's BMW dealership to the Lyons Creek piece were shelved in favor of moving to AutoNation's former location. In July 2001, Vista acquired title to the land and buildings at 4401 W. Sample Rd. While Vista worked to ready the property at 4401 W. Sample Rd for use as a BMW dealership, it also pursued a deal to purchase the Daewoo property at 744 N. Federal Hwy, which was adjacent to its existing dealership. In May 2002, Vista reached a verbal agreement to buy this real estate, but Daewoo's bankruptcy complicated the deal. Litigation to enforce the oral contract ensued. In August 2002, BMW NA signed a letter of intent approving Vista's request to relocate its BMW dealership to 4401 W. Sample Rd. Soon thereafter, by letter dated September 13, 2002, BMW NA notified the Department that Vista intended to relocate its BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd in Coconut Creek. Just as in May 1999, BMW NA and Vista took the position that this relocation should be considered exempt, pursuant to Section 320.642(5), Florida Statutes, from the protest provisions of Section 320.642. Pursuant to Section 320.642(1)(d), Florida Statutes, the Department caused BMW NA's September 13, 2002, notice of relocation to be published in the September 27, 2002, edition of the Florida Administrative Weekly. On September 27, 2002, also in accordance with Section 320.642(1)(d), the Department mailed copies of BMW NA's September 13, 2002, notice of relocation to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. Within two weeks, however, the Department mailed letters to these same dealers explaining that the proposed reopening of Vista's BMW dealership at 4401 W. Sample Rd would not be a "protestable" event after all. In November 2002, BMW NA presented the South Florida Dealers with a draft Market Action Agreement in an attempt to resurrect the market strategy that had died on the vine in 1996. The draft agreement referred to the relocation of Vista's dealership to 4401 W. Sample Rd, which was under way, and raised the possibility of Vista's resuming BMW dealership operations at 700 N. Federal Hwy at some unspecified point in time after the pending relocation. Specifically, the draft contract stated: Prior to the execution of this Agreement, Vista Motor Company has requested that BMW NA approve a relocation of its BMW [dealership] from [700 North Federal Highway] to a facility that is under development at 4401 West Sample Road, Coconut Creek, Florida (the "Sample Road Location"). This request has been approved and BMW NA provided notice of the relocation to the [Department]. It also has been approved by the [Department]. Immediately upon completion of this relocation from [700 North Federal Highway] to the Sample Road Location, the North Federal Highway Location will become an additional proposed location that is the subject of this agreement not to protest. The draft Market Action Agreement offered Braman the opportunity to open a satellite dealership in north Palm Beach County, suggesting the Town of Jupiter as the likeliest spot. Braman had already determined that zoning restrictions in Jupiter effectively forbade the opening of an automobile dealership there, however, and Braman was not interested in establishing a satellite dealership in another area north of its West Palm Beach site, preferring instead to open an additional BMW dealership in Delray Beach, which BMW NA would not approve. Thus, Braman rejected the draft Market Action Agreement of November 2002. In March 2003, BMW NA notified Braman that the proposed Market Action Agreement had failed for lack of the South Florida Dealers' unanimous consent and that BMW NA intended to move forward anyway on plans to establish satellite dealerships for Vista and Lauderdale. Braman was invited to pursue the opportunity to open a satellite dealership in north Palm Beach County. By letter dated April 14, 2003, Vista formally requested BMW NA's permission to open a satellite dealership at 744 N. Federal Hwy, where the Daewoo dealership had been located. Vista had not yet secured title to that property but was getting close. Vista asked that it be allowed to "operate out of the current facility" at 700 N. Federal Hwy if the effort to purchase the Daewoo property failed, "provided [the current facility] is renovated in accordance with BMW corporate identity standards." On April 29, 2003, BMW NA and Vista entered into a Letter of Intent authorizing Vista to open a satellite dealership at the "Satellite Location," which was defined as 700 N. Federal Hwy and 744 N. Federal Hwy. This Letter of Intent called for Vista to sell new BMW automobiles at 744 N. Federal Hwy and to sell "Certified Pre-Owned" (used) vehicles at 700 N. Federal Hwy. By letter dated May 5, 2003, BMW NA notified the Department that Vista planned to establish an additional or "supplemental" BMW dealership at 744 N. Federal Hwy, to be opened on or after June 30, 2003. As required by statute, the Department not only caused a notice to be published in the May 16, 2003, edition of the Florida Administrative Weekly regarding this putative supplemental dealership, but also it mailed copies of BMW NA's May 5, 2003, notice to all existing BMW dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. No dealer timely protested Vista's intended opening of a supplemental dealership at 744 N. Federal Hwy. Ordinarily, following an "unprotested" notice, the Department enters a final order authorizing the issuance of a license for the proposed additional or relocated dealership upon the applicant's satisfaction of all other requirements for licensure. In this case, however, before the entry of such an order, the Department learned that 744 N. Federal Hwy and 700 N. Federal Hwy were contiguous properties. Based on this information, the Department informed BMW NA and Vista, by letter dated July 10, 2003, of its decision that because Vista was still operating a BMW dealership at 700 N. Federal Hwy, and because 744 N. Federal Hwy was immediately adjacent to the existing dealership, the proposed supplemental dealership at 744 N. Federal Hwy would be deemed an "expansion" of the existing dealership, as opposed to an "additional" dealership. The Department further concluded that: (1) a license was not needed and hence would not be issued for the expansion of Vista's dealership into 744 N. Federal Hwy; (2) the opening of the dealership that Vista proposed to establish at 4401 W. Sample Rd, which would come into being as Vista's existing dealership expanded, could not be considered exempt from protest, as previously thought, for no "relocation" would be occurring; and (3) notice and an opportunity to protest would need to be provided with respect to 4401 W. Sample Rd before a license for an additional dealership at that location could be issued. BMW NA and Vista each requested a hearing to challenge the Department's findings and conclusions, initiating, respectively, DOAH Case Nos. 03-2969 and 03-2970. These cases were subsequently consolidated, and Braman was allowed to intervene in them. On September 18, 2003, while the above-mentioned administrative litigation was pending, Vista filed an application with the Department for modification of its license, to reflect the relocation of Vista's BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd. Vista asserted that the planned reopening at 4401 W. Sample Rd would not be subject to protest, noting in its cover letter to the Department, dated September 12, 2003, that BMW NA had previously "notified [the Department] of the applicability of [the Section 320.642(5)] exemption via correspondence . . . dated September 13, 2002."7 On September 30, 2003, before the final hearing in the consolidated administrative proceeding, the Department, BMW NA, and Vista (but not Braman) entered into a settlement agreement. Upon being advised of the settlement, the presiding administrative law judge (not the undersigned) closed DOAH's files in Case Nos. 03-2969 and 03-2970 and relinquished jurisdiction to the Department. Pursuant to the referenced settlement agreement, Vista notified the Department by letter dated October 7, 2003, that Vista would cease all BMW dealership operations at 700 N. Federal Hwy at the close of business that day and would commence BMW dealership operations at 4401 W. Sample Rd on October 8, 2003. Promptly upon receipt of this notice, the Department modified Vista's motor vehicle dealer license to permit Vista to conduct BMW dealership activities at 4401 W. Sample Rd. This modification effectively "de-licensed" Vista as a BMW dealer at 700 N. Federal Hwy. On October 7, 2003, as promised, Vista stopped selling and servicing BMW automobiles at 700 N. Federal Hwy. and moved its dealership to 4401 W. Sample Rd.8 To effect the move, Vista relocated its inventory of new and used BMW vehicles, along with other line-make used automobiles that had been taken in trade for BMW vehicles, plus BMW-specific equipment, tools, and parts. Employees of Vista's BMW dealership were transferred to the new worksite. On October 8, 2003, Vista started selling and servicing BMW passenger cars and BMW light trucks at 4401 W. Sample Rd.9 It is undisputed that from October 8, 2003, through the final hearing in this cause, Vista did not conduct any BMW- related dealership operations at the N. Federal Hwy location. In other words, Vista's BMW dealership was continuously "closed" during that period of time.10 By letter dated October 15, 2003, in accordance with the settlement agreement referenced above, the Department notified BMW NA and Vista that it intended not to issue Vista a license to operate a BMW dealership at 744 N. Federal Hwy unless and until (a) Vista first relocated to 4401 W. Sample Rd and thereafter BMW NA gave the Department another notice of its intent to allow Vista to open a dealership at 744 N. Federal Hwy, which notice would, upon publication, create a new point of entry for substantially affected dealers to protest the latter project; and (b) all other legal requirements for licensure were met, including the failure of any protest that might timely be filed. BMW NA and Vista each timely challenged the Department's preliminary determination, initiating DOAH Case Nos. 03-4250 and 03-4277, respectively, which were consolidated and tried together before the undersigned on February 10, 2004. The resulting Recommended Order urged the Department to proceed in accordance with its previously announced intention. See BMW of North America, LLC v. Department of Highway Safety and Motor Vehicles, DOAH Case Nos. 03-4250 and 03-4257, 2004 WL 833605, *10 (Fla.Div.Admin.Hrgs. Apr. 15, 2004). On May 3, 2004, the Department adopted the Recommended Order as its Final Order. See Final Order No. HSMV 04-224-FOF-DMV (Fla.Dept. H.S.M.V. May 3, 2004). As of the final hearing in this case, no new notice had been provided to the Department of BMW NA's intention to permit Vista to establish an additional BMW dealership at 700- 744 N. Federal Hwy. Nevertheless, the evidence introduced at hearing shows that, as of early May 2004, BMW NA and Vista were still planning for Vista someday to open a BMW dealership at the former location. Vocabulary To facilitate the ensuing discussion, it will be helpful to develop a vocabulary tailored to the facts and issues presented. As used herein, the term "source site" will refer to the location (i.e. the place) from which a dealership has been, or will be, moved. Thus, 700 N. Federal Hwy is (or is claimed to be) a source site. The term "source dealership" shall mean a dealership that will be relocated to another place. Thus, a source dealership exists, as such, only at a source site. In this case, the BMW dealership that Vista operated at 700 N. Federal Hwy until October 7, 2003, was (or is claimed to have been) a source dealership. The term "target site" shall refer to any location to which a source dealership has been, or will be, moved. Here, then, 4401 W. Sample Rd is (or is claimed to be) a target site. A dealership established, or proposed to be opened, at a target site will be called a "target dealership." Thus, a target dealership exists, as such, only at a target site. Vista's presently licensed BMW dealership at 4401 W. Sample Rd is (or is claimed to be) as target dealership. It should be kept in mind that the terms "source dealership" and "target dealership" refer to two sides of the same coin——not to two separate coins. This is because, to speak of relocating or moving a dealership from one place to another is to imply, necessarily, that the source dealership and the target dealership are in some meaningful senses the same dealership (call it the "source-target dealership"), located first at one place (the source site), then at another (the target site). Indeed, § 320.642(5) requires that the reopening dealership be the same dealership11 (if it is not a successor dealership12) for the exemption to apply.13 The bottom line is, if the source dealership and the target dealership are not the same dealership, then the exemption cannot apply. Id. Imagining the source-target dealership as a unity is difficult, however, because one of the chief characteristics that define any dealership is its location. (Other distinguishing features include, without limitation, the identity of the dealer and the line-make vehicles being offered for sale.) Indeed, most people would consider a dealership located at one place to be separate and distinct from a dealership located somewhere else, even if the two were owned and operated by the same dealer and authorized to sell the same line-make vehicles. Of course, location cannot be moved, which raises the question: How can the source dealership and the target dealership really be the same dealership? Without attempting to answer that question completely, it is clear that maintaining the unity of the source-target dealership requires minimally that the source-target dealership have an effective market presence——that is, be licensed to operate and open for business——at but one place at a time, either the source location or the target location. In other words, however this "coin" is ultimately defined, logically it must be, at any given moment, either "heads" up or "tails" up, not heads and tails simultaneously. Therefore, whatever else a true "relocation" entails, i.e. however that term and its cognates are ultimately defined, it can be said at a minimum that a true relocation is not complete until the source dealership disappears as such, having been turned into the target dealership. One more term before moving on: "backfill dealership" shall refer to a dealership that is or will be: (a) opened at a source site after the relocation from that site of the source- target dealership; (b) owned and operated by, or under the effective control of, the same dealer who owns and operates or effectively controls the source-target dealership, which dealership is now present in the marketplace solely as a target dealership; and (c) offering for sale the same line-make vehicles as the source-target dealership. In this case, the BMW dealership that Vista plans to open at 700-744 N. Federal Hwy would be a backfill dealership. Having formulated a vocabulary, the central disputes in this case can easily be identified. It should be readily apparent that an attempt to establish a backfill dealership calls into question the genuineness of the previous relocation of the source-target dealership from the source site to the target site. This is because the opening of a backfill dealership results in the market presence of two symbiotic dealerships——an outcome not obviously distinguishable from that which would obtain if, instead of relocating the source-target dealership, the dealer had simply opened an additional dealership to complement his existing dealership. Put another way, to continue with the earlier metaphor, the net result is the presence of two coins where before there was one. The question thus becomes whether these coins should be labeled, respectively, (a) backfill dealership and source-target dealership or (b) existing dealership and additional dealership. Incipient Policies BMW NA and Vista are the first distributor and dealer to attempt to execute an exempt relocation-backfill maneuver in Florida. In the course of responding to the issues raised by this novel use of Section 320.642(5), the Department has developed several policies that interpret this exemption as applied to the facts at hand. For purposes of discussion, the relevant incipient policies can be fairly described14 as follows: A dealership that is opened at a site contiguous to the source site from which a source dealership of the same line-make was relocated will be treated as a backfill dealership, provided the two dealerships are under common ownership or control. Establishing a backfill dealership does not necessarily defeat a prior claim of relocation-exemption; rather, under certain circumstances, a dealer can take advantage of the relocation-exemption and also establish a backfill dealership. A backfill dealership does not defeat a prior claim of relocation-exemption if the following requirements are met: There was a "relocation in fact" of the source dealership from the source site to the target site. A "relocation in fact" has occurred when, at a minimum, all of the following have happened: The source dealership's license was modified to show that dealership operations are now permitted only at the target site. Dealership operations at the source site completely stopped (i.e. the source dealership closed and did not reopen in the ordinary course of business). There was an actual, physical move that entailed, but was not necessarily limited to, the relocation of inventory to the target site. Notice regarding the establishment of the backfill dealership was given to the Department after the "relocation in fact" had occurred. Dealership operations at the source site were not resumed (i.e. the backfill dealership did not open to the public for business) until after the protest period associated with the backfill dealership formally concluded and a license authorizing the backfill dealership was issued. Braman's Theory of the Case The linchpin of Braman's theory of the case is its contention that, for a relocation to fall within the Section 320.642(5) exemption, the distributor and the dealer claiming the exemption must have formed, as of the date of notifying the Department about the relocation, a specific intent regarding the dealer's future plans vis-à-vis the source site——or at least they must not have formed certain intentions relative thereto. Stating the requisite intention affirmatively, Braman suggests that the distributor and dealer must intend to "abandon" the source site, i.e. to leave the source site with the intention of never again establishing another dealership there of the same line-make as the source dealership. Alternatively, Braman argues that, at a minimum, the distributor and dealer must not have formed the intention of opening a backfill dealership. On the foregoing premise, Braman argues that BMW NA and Vista never intended for Vista to "relocate" its BMW dealership to 4401 W. Sample Rd within the strictures of Section 320.642(5), because they intended, alternatively, (a) for Vista's BMW dealership at N. Federal Hwy to remain open and never close; (b) for Vista's BMW dealership at N. Federal Hwy to open simultaneously with the opening of a BMW dealership at 4401 W. Sample Rd; or (c) for Vista's BMW dealership at N. Federal Hwy to open as soon as possible after the opening of a BMW dealership at 4401 W. Sample Rd. Braman asserts that the intentions of BMW NA and Vista render the BMW dealership at 4401 N. Federal Hwy ineligible for the relocation-exemption. Braman then goes a step farther, contending that BMW NA's September 13, 2002, notice to the Department, which announced that Vista would relocate its BMW dealership from 700 N. Federal Hwy to 4401 W. Sample Rd, was false and even fraudulent. Proof of this alleged deception, according to Braman, reached the Department in May 2003 in the form of BMW NA's notice regarding the proposal to establish Vista's backfill dealership at 744 N. Federal Hwy. Braman claims that when the Department received Braman's May 5, 2003, notice, it should immediately have published a notice in the Florida Administrative Weekly that Vista's BMW dealership at 4401 W. Sample Rd was subject to protest. Although Braman has expended a great deal of effort trying to depict BMW NA's September 13, 2002, notice as "false" and accusing BMW NA and Vista of intentionally deceiving the Department regarding their "true" plans, Braman's "deception theory" is subordinate to its contention that the relocation- exemption can only be claimed properly by distributors and dealers having a specific intent. That Braman's "deception theory" is dependent on its "specific intent theory" is shown by observing that if the specific intent theory were legally correct, and if further (as Braman asserts) BMW NA and Vista did not in fact have the requisite specific intent, then it would be irrelevant whether BMW NA and Vista also sought to deceive the Department15, for their intentions regarding 700-744 N. Federal Hwy would render Section 320.642(5) inapplicable, no matter what.16 On the other hand, if Braman were wrong concerning the specific intent requirement it advocates, then BMW NA's notice to the Department regarding the relocation of Vista's BMW dealership could not have been false in the way Braman contends it was. In short, then, Braman effectively has staked its case on the proposition that the relocation-exemption requires a specific intent. The deception theory lends little, if any, support to Braman's primary position and therefore will not be given further attention herein. That said, Braman's "specific intent theory" logically concedes an important point, by necessary implication, which is that backfill dealerships do not necessarily defeat prior assertions of the relocation-exemption. This is because if the establishment of a backfill dealership always undid the dealer's previous reliance on the relocation-exemption, thereby exposing his target dealership to protest, then the dealer's intentions regarding the source site, whatever they might have been, would never be relevant. Simply put, to urge explicitly (as Braman does) that having the "wrong" intentions regarding the source site makes Section 320.642(5) inapplicable is to admit implicitly that harboring the "right" intentions regarding the source site keeps alive the possibility that the dealer can take advantage of the relocation-exemption and also establish a backfill dealership some day. Consequently, having put all of its eggs in the specific intent basket, Braman is not in a position to disagree with the Department's Incipient Policy "B" as described above.17 Indeed, while Braman has taken issue broadly with most of the Department's incipient policies, its only promising lines of attack proceed along two fronts. One is a somewhat secondary thrust: Braman complains that the Department's incipient policies permit the opening of a backfill dealership within 12 months after the closure of the source dealership, which opening (Braman argues) would itself be exempt from protest under Section 320.642(5). Thus, Braman asserts that the Department's Incipient Policy "C(3)," which purports to make backfill dealerships "protestable," contravenes the plain statutory language. With regard to this point, while the possibility certainly exists, it is not altogether clear that the Department would permit a backfill dealership to open within 12 months after the closure of a source dealership, because the Department has not been confronted with such a scenario. Moreover, there is no reasonable possibility that Vista will open a BMW dealership at 700-744 N. Federal Hwy on or before October 7, 2004. Therefore, although Braman has raised an interesting question about Incipient Policy "C(3)," which the undersigned will revisit below, the issue cannot be outcome determinative, because it addresses a contingency that has not occurred (and will not occur) in this case. Braman's real dispute with the Department, when all is said and done, is that the Department has chosen not to impose the specific intent requirement that Braman champions. Indeed, with the possible exception of some modifications to Incipient Policy "C(3)" to correct for the potential problem just identified, Braman could not object to the Department's incipient policies if they included a "C(1)(d)" as follows: As of the date the Department was notified about the relocation, the distributor and the dealer who claimed the relocation- exemption either specifically intended for the dealer to leave the source site and never again open another dealership there of the same line-make as the source dealership or, alternatively, had no intentions of establishing a backfill dealership. The question whether Braman's specific intent theory holds thus becomes the threshold legal issue. If the answer were negative, then Braman cannot prevail here.18 If the answer were affirmative, it would then be necessary to make ultimate factual determinations regarding BMW NA and Vista's intentions concerning 700-744 N. Federal Hwy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order confirming that Vista's new BMW dealership at 4401 W. Sample Rd, having resulted from the relocation and reopening of Vista's former BMW dealership at 700 N. Federal Hwy, which reopening occurred within 12 months after the closure of the former dealership and at a location meeting the geographical requirements of Section 320.642(5)(b), Florida Statutes, cannot be considered an additional motor vehicle dealership subject to protest. DONE AND ENTERED this 10th day of September, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2004.
The Issue The issue in the case is whether an application for a motor vehicle dealer license filed by LS Motorsports, LLC, and Michael J. Konczal, Inc., should be approved.
Findings Of Fact LS MotorSports is seeking to establish a new point motor vehicle dealership in St. Petersburg, Florida, for line- make LINH. The Respondent is an existing franchise motor vehicle dealer for line-make LINH, located within 12.5 miles of the proposed new point motor vehicle dealership location. The majority of the Respondent's vehicle sales come from within a 12.5-mile radius of the proposed dealership. The Respondent timely filed a protest of LS MotorSports’ proposed dealership. There is no evidence that the Respondent is not providing adequate representation within the territory of the motor vehicles at issue in this proceeding.
Recommendation Based on the foregoing Finding 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 3rd day of April, 2009 in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles 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 Chris Densmore Scooter Escapes, LLC, d/b/a Scooter Escapes 1450 1st Avenue North St. Petersburg, Florida 33705 Mathu Solo LS Motorsports, LLC 10215 South Sam Houston Parkway West, Suite 100 Houston, Texas 77071 Michael Konczal Michael J. Konczal, Inc. 1801 28 Street North St. Petersburg, Florida 33715
The Issue Whether the existing same line-make dealers are providing adequate representation for General Motors Corporation/GMC Truck Division in the community or territory.
Findings Of Fact J.O. Stone Buick/GMC Truck, Inc. (Stone) seeks to establish a GM truck dealership in the vicinity of Palm Harbor, Florida. The proposed location is within an area identified by GM as the StPete/Clearwater Multiple Dealer Area (MDA). An MDA represents a single area of primary responsibility (APR) assigned by GM pursuant to its dealer sales and service agreement to more than one GMC truck dealer. Also included within the MDA are GMC truck dealers Bayview Buick GMC/Truck, Inc. (Bayview), Port Richey; Charlie Harris Pontiac, Inc. (Harris), Clearwater; and Crown Oldsmobile GMC/Truck, Inc. (Crown), St. Petersburg. "Fringe dealers" are GMC truck dealers whose APR is adjacent to or touching the MDA. There are five (5) fringe dealers whose area is adjacent to or touching the MDA. Buyer behavior or cross-sell is a means of determining whether areas associated with fringe dealers are connected from a marketing perspective to the MDA, thereby forming a single inter-connected marketing area for a particular line of motor vehicles. Experience has demonstrated that for a fringe area to be connected to an MDA from a marketing perspective, at least 30% of the fringe dealers new vehicle sales should be to MDA consumers. In this case, no fringe dealer makes 30% of their sales to MDA consumers. Courtesy GMC's percentage is highest at only 10.9%, far below the minimum required for inclusion. Accordingly, none of the fringe dealer areas are part of the relevant community or territory. Buyer behavior or cross-sell information is also useful to determine whether the areas contained within the MDA form a single interconnected marketing area. However, the MDA boundary is entitled to "great weight" in making any such determination. The MDA consists of four Areas of Geographic Sales and Service Advantage (AGSSA), each associated with an existing GMC truck dealer of the proposed dealer location; Bayview, AGSSA 8, Harris, AGSSA 9; Crown, AGSSA 10; and the proposed Stone location, AGSSA 14. An AGSSA is an area in which a dealer has a convenience advantage over other dealers of the same line-make due solely to proximity of its location to consumers residing there. These boundaries are verified using road networks, locations and buyer behavior to determine if there are any barriers that may raise a question about geography assignment. In this case, there was no basis to question the area assignment by distance. All vehicle registrations are collected by R. L. Polk & Company. They are organized in areas as large as the nation and as small as census tracts. Sales by individual dealers are reported to GMC and can be subsequently traced to the place of registration. Buyer behavior shows that AGSSA 8 is not connected to the rest of the MDA from a marketing perspective. This is so as only 3.5% of all GMC truck registrations in AGSSA 8 were attributable to Harris or Crown. Conversely, only 10.8% of Bayview's 1990 GMC truck sales were registered in the combination of AGSSAs 9, 10 and 14. Through September of 1991, only one registration in the remainder of the MDA was attributable to a sale by Bayview. This fact, combined with a stretch of approximately 18 miles between the proposed location and Bayview in Port Richey, confirms that AGSSA 8 should not be included in the community or territory for the proposed dealer. Contrawise, 75.7% of Harris' and 78.6% of Crown's nationwide retail registrations are in the balance of the MDA, that is AGSSAs 9, 10 and 14. Thirty-four percent of Harris' sales are registered inside AGSSA 9 and 41% are registered outside AGSSA 9 but inside the balance of the MDA. Thus, Harris satisfies the test for inclusion in any community or territorial definition for a Palm Harbor GMC/Truck Division. AGSSA 10, however, is somewhat more difficult to determine. As example, 23% of the GMC truck customers in AGSSA 9 went to Crown. This level is considerably higher than Port Richey but is still below the 30% criteria. Sixty percent of Crown's sales are registered in AGSSA 10 which is somewhat higher than normal in a connected market. Nineteen percent of Crown's sales are registered outside AGSSA 10 but inside AGSSAs 9 and 14. This percentage does not change the fact that AGSSA 8 is included, further demonstrating that AGSSA 8 is not connected, from a marketing perspective, to the remainder of the MDA. While 19% and 20% do not meet the 30% test, it is still considerably higher than Bayview's participation and it is possible that enhanced intrabrand competition, by the addition of a dealer in Palm Harbor, could stimulate additional cross- sell between the other AGSSAs sufficient to raise Crown's level of participation to 30%. Given that fact, AGSSA 10 is included within the MDA boundary, which must be afforded great weight, and since it is not possible to unequivocally state the area is unconnected, it is appropriate therefore to regard AGSSA 10 as part of any community or territory for the proposed GMC truck dealership. Accordingly, AGSSAs 9, 10 and 14 form the relevant community or territory for this proceeding with AGSSA 14 representing an identifiable plot within the community or territory. Alternatively, AGSSA 14 would be an identifiable plot of any community or territory comprised of the entire MDA. Market share or penetration is one of the most commonly used standards for evaluating dealer network performance. As between state and national averages, national average forms the starting point. A lower state average may affect statewide network deficiencies that would improperly lower the standard to a level of inadequacy measuring adequate performance. National average includes both adequately and inadequately represented and unrepresented markets. It therefore represents a conservative measure for gauging adequate performance. In this case, national average has surpassed the Florida average at least since 1988. Statistical evidence introduced herein, reveals that about two-thirds of this shortfall is due to network deficiencies. Florida is not only below national average, but also below 38 other states and, on average, there are fewer GMC truck dealers in Florida in relation to intrabrand competition. Accordingly, national average is a reasonable starting point for developing a standard to evaluate performance in the community or territory. To properly evaluate dealer network in a given area, the evaluation standard should consider the influence of unique market characteristics. These characteristics may be accounted for by adjusting performance standards according to local area consumer preferences for various types of vehicles, independent of brand, resulting in a minimum expectation or penetration. Depending on a particular brand's performance in a given area, minimum expectations could be either greater or less than overall national average penetration. GM has segmented the light truck industry into ten categories that contain vehicles that are viewed by consumers as relatively more interchangeable than vehicles outside the segment. Differences in segment popularity between the nation and the community or territory result in lowering minimum expectations to account for unique characteristics. Specifically, these expectations are as follows: 6.33% for the community or territory; 6.21% for AGSSA 14 alone; and 6.36% for the MDA, each of which is lower than the national average of 7.41%. GMC truck performs best in the full-size pickup, truck wagon and full-size panel van segments which constitute a smaller portion of the truck market in the community or territory or AGSSA 14 alone accounting for reduced expectation in those segments. Seventeen (17) Florida GMC truck markets in 1990 and twenty-three (23) through September of 1991 met or exceeded expected penetration for the area. That several other Florida markets exceed expected penetration calculated in the same manner confirms its reasonableness as a standard for dealer network evaluation. Of significant note was the fact that the community or territory in AGSSA 14 however not only failed to reach the minimum expected averages but ranked in the bottom fifth of all Florida markets in terms of expected performance in 1990 with AGSSA 14 ranking next to last through September of 1991. Gain tracts are census tracts in which GMC truck market share exceed expected penetration calculated for that specific census tract. Analysis of gain tracts in the community or territory confirms the reasonableness of expected penetration. However, given the low average performance of the community or territory, there are relatively few gain tracts overall and their existence demonstrates that such a standard can be achieved in this area. Additionally, those that do exist tend to be clustered around existing dealer locations in AGSSAs 9 and 10 with only one in AGSSA 14 demonstrating that convenience may be a factor in the ability to achieve expected averages. Analysis of age and income distribution also confirms the reasonableness of expected penetration for measuring performance in the community or territory in AGSSA 14. Based on that analysis, GMC truck's expected market share in the community or territory in AGSSA 14 alone or the MDA is about 20% higher than expected based on product popularity. The performance standards however, should not be changed to reflect these increases as expected penetration, based on what line-makes consumers actually purchased, is more reliable than any standard derived from analysis predicting what consumers should do given certain characteristics. The effects of lease transactions on GMC truck performance in the community or territory or AGSSA 14 was insignificant and did not impact the validity of the evaluation standard or otherwise explain GMC truck's relatively poor performance in AGSSA 14 or the community or territory. The community or territory, AGSSA 14 and the MDA have continuously performed well below minimum expectations since 1988. The community or territory has steadfastly declined from only 74.4% of expected in 1988 to 56.3% of expected through September of 1991. AGSSA 14's level of performance has been worse, declining from 72% of expected in 1988 to a low of 34.2% through September of 1991. Finally, the MDA as a whole has failed to meet its minimum performance requirement decreasing from 78.8% of expected in 1988 to 54.1% through September of 1991. Additionally, GMC truck performance in AGSSA 14 has been below a standard derived from the balance of the community or territory (AGSSAs with dealers or the balance of the MDA). In contrast to the remainder of the community or territory, AGSSA 14 declined from 94.9% in 1988 to 53.5% through September of 1991, and from 87.7% to 56% during the same period for the remainder of the MDA. None of the AGSSAs with dealers are meeting minimum performance expectations. In 1990, AGSSA 8 achieved 64% of the minimum expected; AGSSA 9 - 58% and AGSSA 10 - 61%. Thus, AGSSA 14 is performing at levels that are inadequate even in comparison to a standard derived from inadequately represented markets. Inadequate representation stems from either an improperly designed dealer network or inadequately operated dealerships within the network or both, which may result in an inability to provide effective intra or interbrand competition. Effective competition results in an increased awareness of the product through advertising and convenient presence where consumers shop thereby stimulating additional sales. There has been significant population growth in the community or territory in each of the three AGSSAs with concentrations through AGSSAs 9 and 10 and extensive clustering of growth in AGSSA 14 around the proposed Stone location. Specifically, the southern half of AGSSA 10 shows a decline in households while a greater number of areas in the northern half reflect increases. Areas reflecting an increase in households predominate in AGSSA 9 with only a few census tracts reflecting a decline. All but one census tract in AGSSA 14 reflect an increase in households in higher concentration than observable in AGSSAs 9 and 10 with the greatest concentration around the proposed location. AGSSA 14's growth has been the most dramatic increasing more than 300% from 1970 through 1991. AGSSA 9's increase of 121,755 households during the same period is sufficient and these growth trends are predicted to continue through 1996. Respecting growth in household trends, AGSSA 14 households grew more than 425% during the period and is predicted to grow more than 508% by 1996. AGSSA 9 households too, have increased significantly to approximately 179% from 1970 to 1980 and more than 200% through 1991. A similar trend exists throughout the community or territory and the MDA and this trend is also projected to continue. Based on these growth trends, increased congestion persists which makes it necessary, more than ever, to establish a dealer network conveniently located to adequately service the area consumers. Average household income throughout the entire community or territory consists of middle and upper income levels. Only two census tracts located in AGSSA 10 had household income levels below $15,000.00. These income levels demonstrate strong potential for new vehicle sales. The employment trends in the area mirrors population growth demonstrating strength in the economy with expanding opportunities for new vehicles sales. Retail light truck registrations in the community or territory essentially followed the pattern of household and population density with heavy concentrations in AGSSAs 9 and 10 and around the proposed location in AGSSA 14. Since 1982, light truck registrations have increased 148% in AGSSA 14. Retail light truck registrations in the community or territory have more than doubled during that same time, to wit, 4,866 to 10,095. The community or territory offers more opportunity per existing GMC truck dealer than all but two markets in Florida. Even with the addition of a third dealer, market opportunity per GMC dealer remains higher than that available in 37 other markets providing sufficient opportunity for an additional dealer. Similarly, the marketing network is not too large for the existing network to provide adequate representation. In each significant category, driving age population, household population, and registrations, the rate of growth in AGSSA 14 during the relevant period has surpassed the national rate several fold. To a lesser extent, the rate of growth in the area has surpassed the nation in every category except registration which reflects an increase of almost 6%. To keep pace with the growth rate in the community or territory, an additional dealership should have been added to the community or territory during 1980. Only 14.3% of the markets that exceed 225 expected registrations per GMC truck dealer meet or exceed expected penetration. Based on this inadequacy, the dealer network is too small to provide adequate intra and interbrand competition in the market. To have a reasonable chance of meeting expected penetration, the network should be redesigned to exceed the critical signs of 225 expected registrations per dealer. As it presently exists, the GMC truck dealer network in the community or territory is configured to 320 expected registrations per dealer which is 95 additional registrations over the target number of 225 expected registrations. Respondent Harris' sales are concentrated in AGSSA 9 with some registrations in both AGSSA 10 which has a dealer and AGSSA 14. Respondent Harris' has demonstrated an inability to obtain a reasonable share of the light truck business at distances within close proximity of its dealership and its sales penetration dropped to about 1% of the available business at distances beyond 4 miles of the dealership. Likewise, Crown has demonstrated an inability to penetrate the market in any significant way. Specifically, community or territory registrations attributable to Crown are concentrated in AGSSA 10 with fewer in AGSSA 9 where Respondent Harris is located. While Crown's ability to penetrate the market within two miles of the dealership is slightly better than Respondent Harris, it immediately drops off to less than 2% after six miles and next to nothing at distances closer to the proposed location. Without the proposed dealer, AGSSA 14 consumers are disadvantaged compared to consumers in AGSSAs 9 and 10 with respect to a conveniently located GMC truck dealer. Without the proposed dealer, consumers are on average approximately nine miles from the nearest GMC truck dealer. This is twice as far as the convenience offered customers in AGSSAs 9 or 10. With the proposed dealer in AGSSA 14, convenience will improve to 3.48 miles on average without changing the level of convenience offered consumers in AGSSAs 9 and 10. Likewise, without the proposed dealer, GMC truck offers consumers in AGSSA 14 the worst level of convenience of most brands that offer light trucks placing GMC truck at an interbrand competitive disadvantage. With the proposed dealer, convenience levels reflecting that similar to the interbrand competitors, would be provided. The inadequate penetration in AGSSA 14 is based on the significant growth in that area coupled with poor convenience levels which can only be improved by redesigning the network to add new representation to improve convenience levels in AGSSA 10. Anderson conducted an optimal location analysis which shows that the proposed location is best suited to maximize convenience and improve the level of interbrand competition. Gross registration loss is a measure of the opportunity available inside a market which has been lost both to existing dealers and the manufacturer. It represents the number of registrations needed to raise each census tract to its expected penetration as adjusted for segment popularity. In the case sub judice, the combined gross registration loss for the community or territory is 296 units. Insell are GMC truck sales by dealers outside the community or territory that are registered inside the community or territory representing loss opportunity to existing community or territory dealers though not to the manufacturer. Ninety-seven (97) registrations throughout the community or territory are from insell. Thus, the total loss opportunity to Respondent and Crown is three hundred ninety-three (393) units. Assuming that Stone had been in business in 1990 at the proposed location and performed similar to Respondent and Crown, it would have been responsible for eighty-six (86) GMC truck registrations or approximately 21.9% of the total loss opportunity. This number reflects only 21.9% of the total loss opportunity in the community or territory and is achievable without taking a single sale from existing dealers. Likewise, substantial additional opportunity would remain for existing dealers in areas where they have a competitive advantage, provided they compete for that opportunity. Assuming that Stone had been in business in 1990 and performed the average of all fringe dealers, which is considerably higher than the average for Respondent and Crown, Stone would have registered an additional 186 units reflecting 47.3% of the total loss opportunity and more than 100 units less than gross registration loss alone. The loss opportunity calculation reflects a conservative measure of the opportunity available since it is premised upon the number of sales needed to reach minimum expectation. To realistically measure the opportunity available to an aggressive network, it would be appropriate to include only those markets that are meeting minimum expectations and therefore are being adequately represented. If gross registration losses calculated according to a standard derived from Florida markets that meet or exceed an expected standard, the total loss opportunity increases to 576 units in 1990. The projected sales for the new dealer represent only a fraction of this assessment of the reasonable opportunity available using either community or territory or fringe dealer profiles. This situation remains whether opportunity is calculated within the community or territory or only within a larger 20-mile radius. Previous experience demonstrates that under such marketing conditions, the new dealer sales will come from loss opportunity and not existing dealers in the MDA. As example, when a new GMC truck dealership was added to the West Palm Beach MDA, GMC truck penetration efficiency increased from 17.8% before to 84% after the addition. During that period, sales by existing dealers remained level while the new dealer registered an additional 278 units. Likewise, while the number of registrations for MDA dealers increased, insell declined sharply demonstrating that sales by dealers outside the area represent opportunity to dealers inside the area. Similar GMC truck experiences have been noted (in Florida) where the addition of a GMC truck dealer to a market substantially enhances GMC truck performance often causing performance to increase beyond minimum expected levels. Specifically, in Venice, Florida, with the addition of a new dealer, a resultant increase in performance efficiency was noted from 55.8% going to 158.5% of expected. In Fernandina Beach, efficiency increased from 37.5% to 176.1% of expected. And, in Mount Dora and Fort Pierce, efficiencies increased from 65% to 108% and from 52% to 115.6%, respectively. Respondent's GMC truck operation generated an operating profit of $453,876.00 in 1990. Respondent's dealership is principally devoted to the Pontiac line which comprises 85% of its total operation. Losses from the Pontiac operation accounted for the dealers loss position in 1989 and 1990. A review of Respondent's financial records suggest that existing profit opportunities stem from operational inefficiencies. After adjusting deferred income from previous years is taken into account, the dealership as a whole made approximately $96,000.00 before consideration of the sole owner's salary, leaving nearly two million dollars of undeclared deferred income in the dealership. Respondent's dealership, which was built in 1967 as a Pontiac dealership, added the GMC truck line in 1975. With the addition of the GMC truck line, Respondent made no discernible capital investment. Respondent's permanent investment in land, buildings, and equipment in its dealership is approximately $462,989.00. Most of its assets are relatively liquid and if liquidated in an orderly manner, the owners would receive approximately $4.1 million. If only the liquid assets were converted, the owners would receive approximately $3.7 million, leaving the land, buildings and equipment available for sale, lease or other investment opportunities. Dr. Lyman Ostlund, an expert in automotive retailing, determined that the relevant community or territory for this case consist of the StPete/Clearwater MDA including AGSSA 8. Dr. Ostlund eliminated fringe areas and included AGSSA 8 based on his determination that the level of cross-sell warranted such a configuration. However, he excluded the area occupied by Courtesy in Tampa with 28 registrations while including AGSSA 8 which had only 10 registrations. Likewise, Dr. Ostlund related that a single registration by Bayview in 1991 reflects a sufficient level of cross-sell to regard AGSSA 8 as connected with the rest of the MDA from a marketing respective. Dr. Ostlund's reasoning and analysis is flawed for several reasons and is rejected. Noteworthy was Dr. Ostlund's inclusion of AGSSA 8 in the community or territory when in another case, he found it puzzling that Port Richey would be considered the same market along with Tampa and St. Petersburg. He considered the drive as a long and arduous one concluding that no one in its right mind would take that drive two or three times in their lifetime. Likewise, Dr. Ostlund attributes low GMC truck market share as being reflective of declining interest in GMC truck products. However, he failed to provide any statistical information that he relied upon as supportive of that claim. To the contrary, during the period of GMC truck's decline in the community or territory, GMC truck's marketshare in the nation and Florida increased. Similarly, Dr. Ostlund related that there are three possible causes for market efficiencies below zone or national average: the network; dealership operations; and unique demographic or other characteristics. While pointing to these factors as support for the possible causes for below market efficiency, Dr. Ostlund performed no statistical analysis to determine whether unique consumer characteristics were in any manner based on GMC's declining marketshare in the community or territory leaving dealer operations or network deficiencies as possible causes of low marketshare. Dr. Ostlund rejects consideration of insell as a component of opportunity. However, there was no empirical data provided to support the rejection of insell. Dr. Ostlund ignores the fact that in properly designed network markets, insell is reduced. Dr. Ostlund also concluded there was insufficient opportunity to support an additional dealer based upon a "5-mile ring" analysis. That analysis is likewise flawed since it uses the subject area as a standard for measuring its own performance which, as noted herein, has an inadequate number of dealers. Additionally, while acknowledging that dealer sales are made throughout the area, Dr. Ostlund's analysis ignores opportunities existing elsewhere in the community. Upon consideration of Dr. Ostlund's analysis, the lack of significant data to support his analysis and the flawed methodology used in support of both the definition of the market and the financial impact in his analysis, his inclusion of markets which were not properly in the community or territory and in other instances, included such markets, his entire analysis including his financial calculations. Finally, Dr. Ostlund relied on a "pump- in" and "pump-out" calculation. His theory that a low pump-in/out number reflects adequate representation is likewise rejected. A study of this calculation shows it to be as consistent with inadequate representation as it is with adequate representation with no particular relationship to either. His suggestion that there are too many GMC truck dealers in the community or territory because the MDA has the lowest ratio of truck dealer/GMC truck registrations of all GMARS markets misses the point completely and lends support to GM's contention that there are too few dealers to adequately serve the area. Low registrations per dealer has been found and demonstrated to be more consistent with operational problems and inadequate representation than it is with "over dealering." Significantly, Dr. Ostlund failed to explain why the Orlando market, which is about the same size as measured by industry registration and which has four dealers to the StPete/Clearwater MDA 3, is able to achieve 353 GMC registrations per dealer while the StPete/Clearwater MDA achieves only 150. Dr. Ostlund related that Respondent's level of advertising, being five times above average, reflects attempts to lure customers. He failed, however, to segment out the amount of such expenses which were attributable to GMC advertising and he admitted that those expenses were in combination with Pontiac, which represents 85% of the dealership business. The advertising analysis was at best superficial and did not shed relevance to the adequacy of representation issue. Similarly, Dr. Ostlund presented Respondent's Customer Satisfaction Index (CSI) score of 100 for the three-month period ending November 1991 as reflective of superior performance. That survey, which was based on four responses, was unreliable. Respondent's CSI for the preceding twelve-month period was below average in virtually every CSI category, including overall satisfaction with warranty service, delivery condition, sales staff, and service comebacks. Specifically, as of December 19, 1991, Respondent was ranked 379 out of 399 (with a numerical rank of one being the best). In this case, the community or territory and AGSSA 14, as an identifiable plot, failed to achieve minimum performance standards and there is adequate and sufficient opportunity for an additional GMC truck dealer. The addition of the proposed dealer, under these circumstances, will result in greater customer convenience and enhanced inter and intrabrand competition. The addition would also be in the interest of the public, the manufacturer, and existing dealers and would likely stimulate and maintain effective levels of competition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Respondent, Department of Highway Safety and Motor Vehicles, enter a Final Order approving Petitioner's application to establish the Stone GMC Truck Dealership in the vicinity of Palm Harbor, Florida. DONE and ENTERED this 4th day of August, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of August, 1992. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner General Motors Corporation/GMC Truck Division Proposed Recommended Order. Paragraph 71, rejected, not probative and unnecessary. Paragraph 74, rejected as conclusionary and not a finding of fact. Rulings on Respondent Charlie Harris Pontiac, Inc. Proposed Recommended Order. Paragraph 5, adopted as modified, Paragraphs 4, 5 and 6, Recommended Order. Paragraph 6, rejected, contrary to the greater weight of evidence, Paragraphs 5 and 9-12, Recommended Order. Paragraph 7, adopted as relevant, Paragraph 3, Recommended Order. Paragraph 9, rejected, irrelevant and not probative. Paragraph 10, rejected, irrelevant and not probative. Paragraph 11, rejected, contrary to the greater weight of evidence, Paragraphs 9-12, Recommended Order. Paragraph 12, rejected, unnecessary and not probative. Paragraph 13, adopted as modified, Paragraphs 21, 22 and 23, Recommended Order. Paragraph 14, rejected, unnecessary and not probative. Paragraph 15, rejected, contrary to the greater weight of evidence and calls for consideration of an inappropriate standard. Paragraph 16, rejected, contrary to the greater weight of evidence and calls for consideration of an inappropriate standard, Paragraphs 23 and 24, Recommended Order. Paragraph 18, rejected, contrary to the greater weight of evidence, Paragraphs 26-33, Recommended Order. Paragraph 19, rejected, not probative. Paragraph 20, rejected, not probative. Paragraph 21, rejected, contrary to the greater weight of evidence, Paragraphs 34, 35, 44, 46 and 56, Recommended Order. Paragraph 23, rejected, contrary to the greater weight of evidence. Paragraph 24, rejected, calls for consideration of an inappropriate standard. Paragraph 25, rejected, contrary to the greater weight of evidence and calls for consideration of an inadequate standard. Paragraph 26, rejected, contrary to the greater weight of evidence and calls for consideration of an inadequate standard. Paragraph 27, rejected, contrary to the greater weight of evidence, Paragraphs 48 and 49, Recommended Order. Paragraph 28, adopted as modified, Paragraph 48, Recommended Order. Paragraph 29, rejected, irrelevant. Paragraph 30, rejected, unnecessary. Paragraph 31, rejected, contrary to the greater weight of evidence, Paragraph 43, Recommended Order. COPIES FURNISHED: EDWARD W RISKO ESQ GENERAL MOTORS CORPORATION NEW CENTER ONE BLDG 3031 W GRAND BLVD DETROIT MI 48232 DEAN BUNCH ESQ CABANISS BURKE & WAGNER 851 E PARK AVE TALLAHASSEE FL 32301 MARK HERRON ESQ AKERMAN SENTERFITT EDISON & MOFFITT PO BOX 10555 TALLAHASSEE 32302 2555 DANIEL E MYERS ESQ WALTER E FOREHAND ESQ FOREHAND AND MYERS 402-B N OFFICE PLAZA DR TALLAHASSEE FL 32301 MICHAEL J ALDERMAN ESQ DEPT OF HIGHWAY SAFETY AND MOTOR VEHICLES A432 NEIL KIRKMAN BLDG TALLAHASSEE FL 32399 0500 CHARLES J BRANTLEY/DIRECTOR DIVISION OF MOTOR VEHICLES DEPT OF HIGHWAY SAFETY AND MOTOR VEHICLES NEIL KIRKMAN BLDG TALLAHASSEE FL 32399 0500 ENOCH J WHITNEY ESQ GENERAL COUNSEL DEPT OF HIGHWAY SAFETY AND MOTOR VEHICLES NEIL KIRKMAN BLDG TALLAHASSEE FL 32399 0500
The Issue The issue in these cases is whether an application for motor vehicle dealer licenses filed by SunL Group, Inc., and Auto Stop, Inc., d/b/a Motorsports Depot, should be approved.
Findings Of Fact There was no evidence presented at the hearing to establish that Scooter Depot has a franchise agreement to sell or service Chunl Motorcycle Manufacturing Co. Ltd. (CHUA) motor vehicles, a line-make to be sold by Motorsports Depot. There was no evidence presented at the hearing to establish that Scooter Depot has a franchise agreement to sell or service Shanghai Meitan Motorcycle Manufacturing Co. Ltd. (MEIT) motor vehicles, a line-make to be sold by Motorsports Depot. There was no evidence presented at the hearing that the Scooter Depot dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new point franchise motor vehicle dealerships.
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 dismissing the protests filed by Mobility Tech, Inc., d/b/a Charlie's Scooter Depot, in these cases. DONE AND ENTERED this 5th day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 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 Mei Zhou SunL Group, Inc. 8551 Ester Boulevard Irving, Texas 75063 Carlos Urbizu Mobility Tech, Inc., d/b/a Charlie’s Scooter Depot 5720 North Florida Avenue, Unit 2 Tampa, Florida 33604 Robert L. Sardegna Auto Shop, Inc., d/b/a Motorsports Depot 17630 US 41 North Lutz, Florida 33549 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 Whether the proposed relocations of the existing Fort Lauderdale sales and service operations of Petitioner Holman Automotive, Inc. (Holman) for BMW passenger cars, BMW light trucks, and MINI passenger cars, as more particularly described in the notices of intent published by BMW of North America, LLC (BMW NA) in the Florida Administrative Weekly, should be permitted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the factual stipulations set forth in the parties' Pre-hearing Stipulation: BMW NA is a Florida-licensed importer and distributor of BMW passenger cars and BMW light trucks (hereinafter referred to collectively as "BMW Vehicles"), as well as MINI passenger cars (MINIs). BMW passenger cars, BMW light trucks, and MINIs constitute three separate line-makes. In 2007, BMW Vehicles competed in the following luxury passenger and light truck segments: entry compact (against Acura, Audi, Saab, and Volvo models); compact wagon (against Audi, Jaguar, Saab, and Volvo models); compact sedan (against Acura, Audi, Infiniti, Jaguar, Lexus, Mercedes, Saab, and Volvo models); compact coupe (against Infiniti and Mercedes models); compact performance (against Audi models); compact convertible (against Audi, Mercedes, Saab, and Volvo models); midsize sedan (against Acura, Audi, Infiniti, Jaguar, Lexus, Mercedes, Saab, and Volvo models); midsize super performance (against Audi, Jaguar, and Mercedes models); midsize performance (against Audi, Infiniti, Jaguar, Lexus, Mercedes, and Volvo models); midsize wagon (against Audi, Mercedes, Saab, and Volvo models); specialty roadster/coupe (against Audi, Mercedes, and Porsche models); prestige sedan (against Audi, Jaguar, Lexus, and Mercedes models); prestige convertible coupe (against Jaguar, Lexus, and Mercedes models); super convertible/coupe (against Audi, Mercedes, and Porsche models); and prestige SUV (against Acura, Cadillac, Infiniti, Land Rover, Lexus, Mercedes, Porsche, Saab, Volkswagen, and Volvo models). In 2007, the MINI Cooper competed against Smart and Volkswagen models; the MINI Cooper S competed against Chevrolet, Honda, Mitsubishi, Scion, Subaru, Volkswagen and Volvo models; the MINI Cooper convertible competed against Chrysler, Pontiac, Saturn, Smart, and Volkswagen models; and the Cooper Convertible S competed against Mazda, Pontiac, Saturn, and Volkswagen models. BMW NA distributes vehicles in the United States and Puerto Rico through a network of franchised dealers. Its dealers not only sell new vehicles, they service them as well. BMW NA's free maintenance program brings customers back to the dealership for service on a regular basis. BMW NA maintains a policy of limiting the supply of vehicles available to its dealers in order to maintain pricing power. Allocation of product to each dealer is based, in part, on the Sales Planning Guide (SPG) BMW NA assigns the dealer. The higher the SPG, the greater the supply of product the dealer will be able to receive. Each dealer is assigned a "Primary Market Area" (PMA) for which it is responsible pursuant to the terms of its franchise agreement with BMW NA. The dealer's PMA is the geographic "area [comprised of aggregated zip codes] designated by BMW NA in which [the] [d]ealer is expected to focus its activities under [its] [d]ealer [a]greement [with BMW NA]. Evaluation of [the] [d]ealer's performance [under its agreement is] primarily based upon [the] [d]ealer's activities in its [PMA]." Another factor, among others, that BMW NA considers in evaluating its dealers is the "feedback from [the] [d]ealers' customers measured by the results of customer satisfaction surveys provided to [the] dealer by BMW NA." From these survey results, a Customer Satisfaction Index (CSI) is constructed in various categories for each dealer. Some dealers have more than one dealership location in the PMA for which they are responsible. These dealers exercise their discretion to determine how the product they receive from BMW NA (for their PMAs) should be divided. In 2007, in the United States and Puerto Rico, there were approximately 340 PMAs represented by BMW Vehicle dealers and 83 PMAs represented by MINI dealers. The BMW Vehicle PMAs, collectively, cover virtually the entire United States and Puerto Rico. Contrastingly, there are significant land areas in the United States and Puerto Rico that are not included in the 83 MINI PMAs. These are referred to as "unrepresented" areas. Florida has 21 BMW Vehicle PMAs (in which there are 26 dealership locations) and 8 MINI PMAs (half of which are in two counties, Broward and Miami-Dade). Holman and Vista are each Florida BMW Vehicle and MINI dealers with operations in Broward County. There are no other BMW Vehicle or MINI dealers located in Broward County. Holman's BMW Vehicle PMA covers the southern portion of Broward County and extends just over the border (to the south) into northeastern Miami-Dade County. Vista's BMW Vehicle PMA covers the northern portion of Broward County and extends just over the border (to the north) into southern Palm Beach County. The two PMAs cover Broward County in its entirety. Holman's MINI PMA covers the southeastern portion of Broward County and extends just over the border into northeastern Miami-Dade County. Vista's MINI PMA covers the northern portion of Broward County and extends just over the border into southern Palm Beach County. The southwestern portion of Broward County is unrepresented by any dealer. There are two BMW Vehicle dealers and two MINI dealers located south of Broward County in Miami-Dade County. Braman Miami operates a BMW Vehicle dealership (Braman Miami BMW) and a MINI dealership (Braman Miami MINI) from a location on Biscayne Boulevard (U.S. Route 1/Federal Highway) in the area of downtown Miami. (At this location, Braman Miami is building a "five- story parking deck with service on two floors," which will "significant[ly] expan[d]" its service capability.) To the south, there is another BMW Vehicle dealership and another MINI dealership, both run by South Motors3 (South Motors BMW and South Motors MINI, respectively). These are the only BMW Vehicle and MINI dealership locations in Miami-Dade County. Braman Miami's BMW Vehicle PMA and its MINI PMA cover most of northern Miami-Dade County. South Motors' BMW Vehicle PMA covers the southern portion of Miami-Dade County and all of Monroe County (which has no BMW Vehicle dealerships). South Motors' MINI PMA covers the remaining represented portions of Miami-Dade County (that is, those represented areas not represented by Holman's MINI PMA or Braman Miami's MINI PMA). (Monroe County has no MINI representation.) In Palm Beach County, immediately to the north of Broward County, there is one BMW Vehicle dealership location and one MINI dealership location. Both dealerships (Braman West Palm Beach BMW and Braman West Palm Beach MINI) are run by the Braman organization. Compared to Miami-Dade County and Palm Beach County, Broward County has two and four times, respectively, as many BMW Vehicle dealership locations. It has the same number of MINI dealership locations as Miami-Dade County and twice as many as Palm Beach County. Holman has two BMW Vehicle dealership locations in Broward County, a "primary" location in the downtown Fort Lauderdale area (Holman BMW Fort Lauderdale) and a "satellite" location in Pembroke Pines (Holman BMW Pembroke Pines). Holman BMW Fort Lauderdale's sales facility is located at 1400 South Federal Highway, 21.5 miles (by air) north of Braman Miami BMW (22.3 miles, if driving). This location puts it on a well traveled north-south pathway to downtown Fort Lauderdale. Holman BMW Fort Lauderdale's sales facility is staffed by 16 new BMW Vehicle sales consultants, the maximum amount the facility can accommodate. Saturdays are particularly busy days at the facility. To decrease the amount of time customers have to wait to be helped, Holman has "ma[d]e it mandatory for every sales consultant to work every Saturday," a move that was not well received by the sales consultants, but one that Holman believed "from a business perspective [it had to make] so that [it] had enough people on hand to handle the volume of customers that were coming through the door." The sales facility's air-conditioned showroom has enough space to display no more than seven BMW Vehicles, less than what is necessary to "have a representative sample of every [vehicle] that [Holman] sell[s]." Customers must go outside and deal with the sometimes uncomfortable south Florida weather to view other display vehicles. Customer parking at the sales facility is limited. Holman BMW Fort Lauderdale's service facility is located at 1812 South Andrews Avenue, several blocks away from its sales facility. Holman BMW Fort Lauderdale has had these separate sales and service locations since the 1980s. Having sales and service facilities at different locations makes it more difficult for the sales staff to take advantage of the marketing opportunities that exist when customers come in to have their vehicles serviced, but this has not prevented Holman BMW Fort Lauderdale from being a successful and profitable dealership. (In 2007, for example, Holman BMW Fort Lauderdale's business operations generated a net profit of $15 million for Holman.) Holman BMW Pembroke Pines' sales and service facilities are located at 14800 Sheridan Street in Pembroke Pines, 18.8 miles (by air) north of Braman Miami BMW (23.5 miles, if driving) and 14 miles (by air) from Holman BMW Fort Lauderdale's sales facility (18.3 miles, if driving). These facilities occupy 11 acres of a 17.5 acre parcel. The remainder of the parcel is occupied by a Lincoln-Mercury dealership owned by Holman. Holman BMW Pembroke Pines' service facility has 45 service stalls. Holman has a single MINI dealership location in Broward County (Holman MINI). Holman MINI's sales facility is located at 1440 South Federal Highway in Fort Lauderdale. It sits on the same 1.5 acre parcel that Holman BMW Fort Lauderdale's sales facility and pre-owned vehicle operation also occupy (Holman Fort Lauderdale Parcel). There is room on the Holman Fort Lauderdale Parcel for 40 new BMW Vehicles and MINIs. Holman BMW Fort Lauderdale and Holman MINI typically have a combined new vehicle inventory of 225 vehicles. Those new vehicles for which there is no room on the Holman Fort Lauderdale Parcel are stored off-site at a location about three miles away, near where Holman operates a Honda dealership. Also located off-site, at 1777 South Andrews Avenue in Fort Lauderdale, is Holman's in-house accounting department. Sales consultants "need[ing] to pull a deal file to get information [about] a previous customer" or needing other documents held by the accounting department are not able to retrieve them as quickly and reliably as they would if the accounting department were housed on-site. The customer parking at Holman MINI's sales facility is even more limited than it is at Holman BMW Fort Lauderdale's sales facility (where most MINI customers wind up having to park). There is room to display no more than three vehicles in Holman MINI's showroom. The display area is located right next to where the sales consultants sit down and talk to customers, resulting in the possibility that conversations concerning personal financial information and other private matters may be overheard by those looking at vehicles in the display area. Holman MINI shares the service facility used by Holman BMW Fort Lauderdale (Holman Fort Lauderdale Service Facility). The Holman Fort Lauderdale Service Facility has a small, four-lane combined service drive for BMW Vehicles and MINIs, which often gets "back[ed] up" in the morning when customers drop off their vehicles, as well as at the end of the day when vehicles are picked up. The facility has 37 service stalls for the BMW Vehicles and MINIs that are brought in to be serviced. In the interest of "[c]ustomer convenience," Holman has given Enterprise Rent-A-Car space in the facility to conduct rental car operations. There is a parts department located at the facility, but the space it occupies is not "big enough to store all the parts" it needs to be fully operational. As a result, parts are also kept in a "remote warehouse" located where the new vehicle inventory is stored (near the Holman Honda dealership), as well as at a body shop that Holman operates in Hollywood, Florida, near the corner of U.S. Route 1/Federal Highway and Sheridan Street. There are a total of 150 spaces available for parking vehicles at or around the Holman Fort Lauderdale Service Facility, 79 of which are across the street from the facility (on the west side of Andrews Avenue) and are used for employee parking and to "stage the [vehicles] waiting to be [serviced]." These 79 spaces are leased on a month-to-month basis. Under the terms of the lease, no overnight parking is allowed, so any vehicles in these spaces must be moved to the service facility before closing time. As a general rule, customers can get same day appointments to have their vehicles serviced at the Holman Fort Lauderdale Service Facility. There are "always . . . enough slots to handle emergencies," but "from time to time," during busy periods, it may take as long as two weeks to get an appointment for a regularly scheduled maintenance visit. Vista, like Holman, has two BMW Vehicle dealership locations in Broward County, a "primary" location in Coconut Creek (Vista BMW Coconut Creek) and a "satellite" location in the downtown Pompano Beach area (Vista BMW Pompano Beach). (Although they each have two BMW Vehicle dealership locations in Broward County, Vista and Holman are assigned only one PMA each.) Vista BMW Coconut Creek's sales and service facilities are located at 4401 Sample Road in Coconut Creek, which is 33 miles (by air) from Braman Miami BMW (34.7 miles, if driving); 12.1 miles (by air) from Holman BMW Fort Lauderdale's sales facility (14.5 miles, if driving); and 19.7 miles (by air) from Holman BMW Pembroke Pines (25.8 miles, if driving). Vista BMW Pompano Beach's sales and services facilities are located at 744 North Federal Highway in Pompano Beach, which is 31 miles (by air) from Braman Miami BMW (32.8 miles, if driving); 9.5 miles (by air) from Holman BMW Fort Lauderdale's sales facility (10.5 miles, if driving); 21 miles (by air) from Holman BMW Pembroke Pines (26.8 miles, if driving); and 5.6 miles (by air) from Vista BMW Coconut Creek (8 miles, if driving). The service facility at this location has 34 service stalls. Vista has a single MINI dealership location in Broward County (Vista MINI). Vista MINI and Holman MINI are currently the two closest MINI dealerships in the State of Florida. Vista MINI's sales and service facilities are located at 4401 Sample Road in Coconut Creek (on the same campus as Vista BMW Coconut Creek). Vista has a total of 51 service stalls on its Coconut Creek campus. Prior to 2002, in Broward County, there were only two BMW Vehicle dealership locations and no MINI dealership locations. The two BMW Vehicle dealership locations were both east of I-95. One was Holman BMW Forth Lauderdale. The other was a Vista dealership operation at 700 North Federal Highway in Pompano Beach. Holman MINI and Vista MINI were opened in March 2002 and October 2003, respectively. Holman's decision to house its MINI operations at its existing BMW Vehicle facility in the downtown Fort Lauderdale area resulted in a reduction in the amount of space it had available there for BMW sales and service operations. BMW NA prefers (but does not require) that its MINI dealerships with sales volumes similar to that of Holman MINI be located in exclusive facilities and not co-located with BMW operations. In October 2003, Vista also moved its BMW Vehicle dealership (which at the time had only one location) from 700 North Federal Highway in Pompano Beach to newly-constructed facilities at 4401 Sample Road in Coconut Creek (the present site of Vista BMW Coconut Creek). Vista spent $21 million to build the Coconut Creek campus that houses its BMW Vehicle and MINI dealerships. In December 2003, a third BMW Vehicle dealership location, Holman BMW Pembroke Pines, was opened in Broward County. In November 2004, the Department entered a Final Order authorizing Vista to establish an additional dealership location at 744 North Federal Highway in Pompano Beach, which was "next door" to, and just north of, the site it had vacated when it had moved its BMW Vehicle dealership to Coconut Creek in October 2003. An "old Daewoo facility" had been located at 744 Federal Highway. Vista purchased and subsequently renovated the site, at a cost of $5.5 million. In April 2006, Vista opened Vista BMW Pompano Beach (the authorized additional dealership location), bringing to four the total number of BMW dealership locations in Broward County, two east of I-95 (Holman BMW Fort Lauderdale and Vista BMW Pompano Beach) housed in smaller, older facilities typical of urban dealerships and two in the faster-growing area west of I-95 (Holman BMW Pembroke Pines and Vista BMW Coconut Creek) housed in large, modern, state-of-the-art facilities. Although it opened the Pompano Beach dealership location, Vista still had "additional plans for expansion and renovation" for which it needed local governmental approval. Vista has only recently obtained this approval, and it has not yet begun this planned expansion and renovation project. Since returning to the Pompano Beach area in April 2006, after a two-and-a-half-year absence, Vista has attempted to build back up its business in that part of the county. These efforts, which are ongoing, have included making substantial expenditures for advertising. In reconfiguring and expanding the BMW Vehicle dealer network in Broward County to make its products and services more conveniently accessible to customers in the area, and in adding MINI representation in the county, BMW NA worked with its existing dealers, Vista and Holman, in an effort to allow them to grow with the market. Calendar year 2007 was the first complete calendar year that Broward County had as many BMW Vehicle dealership locations as it presently has.4 It was also the most recent period for which a full, calendar year's worth of sales data was available at the time of the final hearing. In 2007, there were 3,664 new BMW passenger cars registered in Holman's BMW Vehicle PMA, 2,126 of them sold by Holman, 801 of them sold by Vista, 356 of them sold by Braman Miami, 108 of them sold by South Motors, and 89 of them sold by Braman West Palm Beach. In 2007, there were 3,388 new BMW passenger cars registered in Vista's BMW Vehicle PMA, 2,101 of them sold by Vista, 563 of them sold by Braman West Palm Beach, 402 of them sold by Holman, 61 of them sold by Braman Miami, and 24 of them sold by South Motors. In 2007, there were 4,008 new BMW passenger cars registered in Braman Miami's BMW Vehicle PMA, 1,792 of them sold by Braman Miami BMW, 939 of them sold by South Motors, 595 of them sold by Holman, 382 of them sold by Vista, and 70 of them sold by Braman West Palm Beach. In 2007, there were 2,587 new BMW passenger cars registered in South Motors' BMW Vehicle PMA, 1,548 of them sold by South Motors, 636 of them sold by Braman Miami, 144 of them sold by Holman, 111 of them sold by Vista, and 36 of them sold by Braman West Palm Beach. In 2007, there were 2,048 new BMW passenger cars registered in Braman West Palm Beach's BMW Vehicle PMA, 1,457 of them sold by Braman West Palm Beach, 261 of them sold by Vista, 49 of them sold by Holman, 23 of them sold by Braman Miami, and 13 of them sold by South Motors. In 2007, Holman sold a total of 3,392 new Florida- registered BMW passenger cars. Of this number, 62.68% were registered in its BMW Vehicle PMA; 17.54% were registered in Braman Miami's BMW Vehicle PMA; 11.85% were registered in Vista's BMW Vehicle PMA; 4.25% were registered in South Motors' BMW Vehicle PMA; and 1.44% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Holman's BMW Vehicle PMA purchasing new BMW passenger cars, 58.02% did so from Holman; 21.86% did so from Vista; 9.80% did so from Braman Miami; 2.95% did so from South Motors; and 2.43% did so from Braman West Palm Beach. In 2007, Vista sold a total of 3,726 new Florida- registered BMW passenger cars.5 Of this number, 56.39% were registered in its BMW Vehicle PMA; 21.50% were registered in Holman's BMW Vehicle PMA; 10.25% were registered in Braman Miami's BMW Vehicle PMA; 7% were registered in Braman West Palm Beach's BMW Vehicle PMA; and 2.98% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Vista's BMW Vehicle PMA purchasing new BMW passenger cars, 62.01% did so from Vista; 16.62% did so from Braman West Palm Beach; 11.87% did so from Holman; 1.80% did so from Braman Miami; and 0.71% did so from South Motors. In 2007, Braman Miami sold a total of 2,917 new Florida-registered BMW passenger cars. Of this number, 61.43% were registered in its BMW Vehicle PMA; 21.80% were registered in South Motors' BMW Vehicle PMA; 12.31% were registered in Holman's BMW Vehicle PMA; 2.09% were registered in Vista's BMW Vehicle PMA; and 0.79% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Braman Miami's BMW Vehicle PMA purchasing new BMW passenger cars, 44.71% did so from Braman Miami; 23.43% did so from South Motors; 14.85% did so from Holman; 9.53% did so from Vista; and 1.75% did so from Braman West Palm Beach. In 2007, South Motors sold a total of 2,681 new Florida-registered BMW passenger cars. Of this number, 57.74% were registered in its BMW Vehicle PMA; 35.02% were registered in Braman Miami's BMW Vehicle PMA; 4.03% were registered in Holman's BMW Vehicle PMA; 0.90% were registered in Vista's BMW Vehicle PMA; and 0.48% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in South Motors' BMW Vehicle PMA purchasing new BMW passenger cars, 59.84% did so from South Motors; 24.58% did so from Braman Miami; 5.57% did so from Holman; 4.29% did so from Vista; and 1.39% did so from Braman West Palm Beach. In 2007, Braman West Palm Beach sold a total of 2,389 new Florida-registered BMW passenger cars. Of this number, 60.99% were registered in its BMW Vehicle PMA; 23.57% were registered in Vista's BMW Vehicle PMA; 3.73% were registered in Holman's BMW Vehicle PMA; 2.93% were registered in Braman Miami's BMW Vehicle PMA; and 1.51% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Braman West Palm Beach's BMW Vehicle PMA purchasing new BMW passenger cars, 71.14% did so from Braman West Palm Beach; 12.74% did so from Vista; 2.39% did so from Holman; 1.12% did so from Braman Miami; and 0.63% did so from South Motors. In 2007, in terms of total sales of new BMW passenger cars, Vista, Holman, Braman Miami, South Motors, and Braman West Palm Beach were the number one, two, three, six, and eight dealers, respectively, in the United States. (In 2006, Vista was number one, Holman was number two, Braman West Palm Beach was number four, Braman Miami was number five, and South Motors was number seven. In 2008, as of October 9, 2008, Vista was number one, Holman was number two, Braman Miami was number three, South Motors was number six, and Braman West Palm Beach was number nine.) In 2007, there were 848 new BMW light trucks registered in Holman's BMW Vehicle PMA, 494 of them sold by Holman, 202 of them sold by Vista, 70 of them sold by Braman Miami, 21 of them sold by South Motors, and 20 of them sold by Braman West Palm Beach. In 2007, there were 672 new BMW light trucks registered in Vista's BMW Vehicle PMA, 430 of them sold by Vista, 95 of them sold by Braman West Palm Beach, 78 of them sold by Holman, 17 of them sold by Braman Miami, and 4 of them sold by South Motors. In 2007, there were 1,103 new BMW light trucks registered in Braman Miami's BMW Vehicle PMA, 510 of them sold by Braman Miami, 256 of them sold by South Motors, 147 of them sold by Holman, 86 of them sold by Vista, and 18 of them sold by Braman West Palm Beach. In 2007, there were 567 new BMW light trucks registered in South Motors' BMW Vehicle PMA, 363 of them sold by South Motors, 96 of them sold by Braman Miami, 37 of them sold by Vista, 34 of them sold by Holman, and 10 of them sold by Braman West Palm Beach. In 2007, there were 445 new BMW light trucks registered in Braman West Palm Beach's BMW Vehicle PMA, 342 of them sold by Braman West Palm Beach, 50 of them sold by Vista, 6 of them sold by Holman, 4 of them sold by Braman Miami, and 1 of them sold by South Motors. In 2007, Holman sold a total of 772 new Florida- registered BMW light trucks. Of this number, 63.99% were registered in its BMW Vehicle PMA; 19.04% were registered in Braman Miami's BMW Vehicle PMA; 10.10% were registered in Vista's BMW Vehicle PMA; 4.40% were registered in South Motors' BMW Vehicle PMA; and 0.78% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Holman's BMW Vehicle PMA purchasing new BMW light trucks, 58.25% did so from Holman; 23.82% did so from Vista; 8.25% did so from Braman Miami; 2.48% did so from South Motors; and 2.36% did so from Braman West Palm Beach. In 2007, Vista sold a total of 824 new Florida- registered BMW light trucks. Of this number, 52.18% were registered in its BMW Vehicle PMA; 24.51% were registered in Holman's BMW Vehicle PMA; 10.44% were registered in Braman Miami's BMW Vehicle PMA; 6.07% were registered in Braman West Palm Beach's BMW Vehicle PMA; and 4.49% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Vista's BMW Vehicle PMA purchasing new BMW light trucks, 63.99% did so from Vista; 14.14% did so from Braman West Palm Beach; 11.61% did so from Holman; 2.53% did so from Braman Miami; and 0.60% did so from South Motors. In 2007, Braman Miami sold a total of 706 new Florida- registered BMW light trucks. Of this number, 72.24% were registered in its BMW Vehicle PMA; 13.60% were registered in South Motors' BMW Vehicle PMA; 9.92% were registered in Holman's BMW Vehicle PMA; 2.41% were registered in Vista's BMW Vehicle PMA; and 0.57% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in Braman Miami's BMW Vehicle PMA purchasing new BMW light trucks, 46.24% did so from Braman Miami; 23.21% did so from South Motors; 13.33% did so from Holman; 7.80% did so from Vista; and 1.63% did so from Braman West Palm Beach. In 2007, South Motors sold a total of 648 new Florida- registered BMW light trucks. Of this number, 56.02% were registered in its BMW Vehicle PMA; 39.51% were registered in Braman Miami's BMW Vehicle PMA; 3.24% were registered in Holman's BMW Vehicle PMA; 0.62% were registered in Vista's BMW Vehicle PMA; and 0.15% were registered in Braman West Palm Beach's BMW Vehicle PMA. In 2007, of the consumers in South Motors' BMW Vehicle PMA purchasing new BMW light trucks, 64.02% did so from South Motors; 16.93% did so from Braman Miami; 6.53% did so from Vista; 6.00% did so from Holman; and 1.76% did so from Braman West Palm Beach. In 2007, Braman West Palm Beach sold a total of 516 new Florida-registered BMW light trucks. Of this number, 66.28% were registered in its BMW Vehicle PMA; 18.41% were registered in Vista's BMW Vehicle PMA; 3.86% were registered in Holman's BMW Vehicle PMA; 3.49% were registered in Braman Miami's BMW Vehicle PMA; and 1.94% were registered in South Motors' BMW Vehicle PMA. In 2007, of the consumers in Braman West Palm Beach's BMW Vehicle PMA purchasing new BMW light trucks, 76.85% did so from Braman West Palm Beach; 11.24% did so from Vista; 1.35% did so from Holman; 0.90% did so from Braman Miami; and 0.22% did so from South Motors. In 2007, in terms of total sales of new BMW light trucks, Vista, Braman Miami, Holman, and South Motors, were the number one, three, four, and five dealers, respectively, in the United States, with Braman West Palm Beach not making the top ten. (In 2006, Holman was number one, Vista was number two, South Motors was number three, and Braman Miami was number four, with Braman West Palm Beach again not making the top ten. In 2008, as of October 9, 2008, Vista was number one, Holman was number two, Braman Miami was number three, South Motors was number six, and Braman West Palm Beach was number nine.) Broward County is also home to the number one (in total sales volume) Lexus, Infiniti, Porsche, and Volkswagen dealership locations in the United States. In 2007, there were 346 new MINIs registered in Holman's MINI PMA, 182 of them sold by Holman, 67 of them sold by Braman Miami, 66 of them sold by Vista, 11 of them sold by South Motors, and 8 of them sold by Braman West Palm Beach. In 2007, there were 309 new MINIs registered in Vista's MINI PMA, 197 of them sold by Vista, 45 of them sold by Holman, 43 of them sold by Braman West Palm Beach, 10 of them sold by Braman Miami, and 3 of them sold by South Motors. In 2007, there were 804 new MINIs registered in Braman Miami's MINI PMA, 523 of them sold by Braman Miami, 180 of them sold by South Motors, 55 of them sold by Holman, 27 of them sold by Vista, and 6 of them sold by Braman West Palm Beach. In 2007, there were 370 new MINIs registered in South Motors' MINI PMA, 231 of them sold by South Motors, 99 of them sold by Braman Miami, 19 of them sold by Holman, 16 of them sold by Vista, and 3 of them sold by Braman West Palm Beach. In 2007, there were 247 new MINIs registered in Braman West Palm Beach's MINI PMA, 179 of them sold by Braman West Palm Beach, 40 of them sold by Vista, 11 of them sold by Holman, and 7 of them sold by Braman Miami. South Motors sold none of these new MINIs. In 2007, Holman sold a total of 457 new Florida- registered MINIs.6 Of this number, 39.82% were registered in its MINI PMA; 12.04% were registered in Braman Miami's MINI PMA; 9.85% were registered in Vista's MINI PMA; 4.16% were registered in South Motors' MINI PMA; and 2.41% were registered in Braman West Palm Beach's MINI PMA. In 2007, of the consumers in Holman's MINI PMA purchasing new MINIs, 52.60% did so from Holman; 19.36% did so from Braman Miami; 19.08% did so from Vista; 3.18% did so from South Motors; and 2.31% did so from Braman West Palm Beach. In 2007, Vista sold a total of 419 new Florida- registered MINIs. Of this number, 47.02% were registered in its MINI PMA; 15.75% were registered in Holman's MINI PMA; 9.55% were registered in Braman West Palm Beach's MINI PMA; 6.44% were registered in Braman Miami's MINI PMA; and 3.82% were registered in South Motors' MINI PMA.. In 2007, of the consumers in Vista's MINI PMA purchasing new MINIs, 63.75% did so from Vista; 14.56% did so from Holman; 13.92% did so from Braman West Palm Beach; 3.24% did so from Braman Miami; and 0.97% did so from South Motors. In 2007, Braman Miami sold a total of 789 new Florida-registered MINIs. Of this number, 66.29% were registered in its MINI PMA; 12.55% were registered in South Motors' MINI PMA; 8.49% were registered in Holman's MINI PMA; 1.27% were registered in Vista's MINI PMA; and 0.89% were registered in Braman West Palm Beach's MINI PMA. In 2007, of the consumers in Braman Miami's MINI PMA purchasing new MINIs, 65.05% did so from Braman Miami; 22.39% did so from South Motors; 6.84% did so from Holman; 3.36% did so from Vista; and 0.75% did so from Braman West Palm Beach. In 2007, South Motors sold a total of 467 new Florida-registered MINIs. Of this number, 49.46% were registered in its MINI PMA; 38.54% were registered in Braman Miami's MINI PMA; 2.36% were registered in Holman's MINI PMA; and 0.64% were registered in Vista's MINI PMA. There were no registrations in Braman West Palm Beach's MINI PMA. In 2007, of the consumers in South Motors' MINI PMA purchasing new MINIs, 62.43% did so from South Motors; 26.76% did so from Braman Miami; 5.14% did so from Holman; 4.32% did so from Vista; and 0.81% did so from Braman West Palm Beach. In 2007, Braman West Palm Beach sold a total of 357 new Florida-registered MINIs. Of this number, 50.14% were registered in its MINI PMA; 12.04% were registered in Vista's MINI PMA; 2.24% were registered in Holman's MINI PMA; 1.68% were registered in Braman Miami's MINI PMA; and 0.84% were registered in South Motors' MINI PMA.. In 2007, of the consumers in Braman West Palm Beach's MINI PMA purchasing new MINIs, 72.47% did so from Braman West Palm Beach; 16.19% did so from Vista; 4.45% did so from Holman; and 2.83% did so from Braman Miami. No purchases were made from South Motors. For purposes of the instant consolidated cases, and solely for the purposes of these cases, BMW NA, through its expert witness, James Anderson, created, as alternatives to the PMAs that BMW NA is contractually obligated to use in its dealings with its dealers, what Mr. Anderson termed, "Areas of Geographic Advantage" (AGAs). An AGA, as described by Mr. Anderson, is a geographic area in which each dealer or dealership location (in those PMAs having more than one dealership location) has a competitive advantage over other dealers or locations of the same line-make due solely to its geographic proximity to customers. Mr. Anderson created AGAs for Holman BMW Fort Lauderdale, Holman BMW Pembroke Pines, Vista BMW Coconut Creek, Vista BMW Pompano Beach, Braman Miami BMW, South Motors BMW, Holman MINI, Vista MINI, Braman Miami MINI, and South Motors MINI. The Holman BMW Fort Lauderdale AGA consists of southeastern Broward County. The Holman BMW Pembroke Pines AGA consists of southwestern Broward County and extends just over the border into northwestern Miami-Dade County. The Vista BMW Coconut Creek AGA consists of northwestern Broward County and extends just over the border into southwestern Palm Beach County. The Vista BMW Pompano Beach AGA consists of northeastern Broward County and extends just over the border into southeastern Palm Beach County. The Vista MINI AGA is very similar to its PMA. The Holman MINI AGA is larger than its PMA, covering almost all of southern Broward County. In 2007, there were 1,326 new BMW passenger cars registered in Holman BMW Fort Lauderdale's AGA, 507 of them sold at Holman BMW Fort Lauderdale, 255 of them sold at Vista BMW Coconut Creek, 181 of them sold at Holman BMW Pembroke Pines, and 141 of them sold at Vista BMW Pompano Beach. In 2007, there were 2,335 new BMW passenger cars registered in Holman BMW Pembroke Pines' AGA, 1,203 of them sold at Holman BMW Pembroke Pines, 312 of them sold at Vista BMW Coconut Creek, 219 of them sold at Holman BMW Fort Lauderdale, and 60 of them sold at Vista BMW Pompano Beach. In 2007, there were 2,297 new BMW passenger cars registered in Vista BMW Coconut Creek's AGA, 1,266 of them sold at Vista BMW Coconut Creek, 174 of them sold at Vista BMW Pompano Beach, 146 of them sold at Holman BMW Fort Lauderdale, and 122 of them sold at Holman BMW Pembroke Pines. In 2007, there were 996 new BMW new passenger cars registered in Vista BMW Pompano Beach's AGA, 399 of them sold at Vista BMW Coconut Creek, 222 of them sold at Vista BMW Pompano Beach, 101 of them sold at Holman BMW Fort Lauderdale, and 22 of them sold at Holman BMW Pembroke Pines. In 2007, there were a total of 1,431 new BMW passenger cars sold at Holman BMW Fort Lauderdale. Of this number, 35.43% were registered in its AGA; 15.30% were registered in Holman BMW Pembroke Pines' AGA; 10.20% were registered in Vista BMW Coconut Creek's AGA; and 7.06% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Fort Lauderdale's AGA purchasing new BMW passenger cars, 38.24% did so from Holman BMW Fort Lauderdale; 19.23% did so from Vista BMW Coconut Creek; 13.65% did so from Holman BMW Pembroke Pines; and 10.63% did so from Vista BMW Pompano Beach. In 2007, there were a total of 1,961 new BMW passenger cars sold at Holman BMW Pembroke Pines. Of this number, 61.35% were registered in its AGA; 9.23% were registered in Holman BMW Fort Lauderdale's AGA; 6.22% were registered in Vista BMW Coconut Creek's AGA; and 1.12% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Pembroke Pines' AGA purchasing new BMW passenger cars, 51.52% did so from Holman BMW Pembroke Pines; 13.36% did so from Vista BMW Coconut Creek; 9.38% did so from Holman BMW Fort Lauderdale; and 2.57% did so from Vista BMW Pompano Beach. In 2007, there were a total of 2,865 new BMW passenger cars sold at Vista BMW Coconut Creek. Of this number, 44.19% were registered in its AGA; 13.93% were registered in Vista BMW Pompano Beach's AGA; 10.89% were registered in Holman BMW Pembroke Pines' AGA; and 8.90% were registered in Holman BMW Fort Lauderdale's AGA. In 2007, of the consumers in Vista BMW Coconut Creek's AGA purchasing new BMW passenger cars, 55.12% did so from Vista BMW Coconut Creek; 7.58% did so from Vista BMW Pompano Beach; 6.36% did so from Holman BMW Fort Lauderdale; and 5.31% did so from Holman BMW Pembroke Pines. In 2007, there were a total of 861 new BMW passenger cars sold at Vista BMW Pompano Beach. Of this number, 25.78% were registered in its AGA; 20.21% were registered in Vista BMW Coconut Creek's AGA; 16.38% were registered in Holman BMW Fort Lauderdale's AGA; and 6.97% were registered in Holman BMW Pembroke Pines' AGA. In 2007, of the consumers in Vista BMW Pompano Beach's AGA purchasing new BMW passenger cars, 40.06% did so from Vista BMW Coconut Creek; 22.29% did so from Vista BMW Pompano Beach; 10.14% did so from Holman BMW Fort Lauderdale; and 2.21% did so from Holman BMW Pembroke Pines. In 2007, there were 291 new BMW light trucks registered in Holman BMW Fort Lauderdale's AGA, 106 of them sold at Holman BMW Fort Lauderdale, 62 of them sold at Vista BMW Coconut Creek, 42 of them sold at Holman BMW Pembroke Pines, and 25 of them sold at Vista BMW Pompano Beach. In 2007, there were 540 new BMW light trucks registered in Holman BMW Pembroke Pines' AGA, 288 of them sold at Holman BMW Pembroke Pines, 77 of them sold at Vista BMW Coconut Creek, 50 of them sold at Holman BMW Fort Lauderdale, and 15 of them sold at Vista BMW Pompano Beach. In 2007, there were 470 new BMW light trucks registered in Vista BMW Coconut Creek's AGA, 291 of them sold at Vista BMW Coconut Creek, 31 of them sold at Holman BMW Fort Lauderdale, 27 of them sold at Vista BMW Pompano Beach, and 19 of them sold at Holman BMW Pembroke Pines. In 2007, there were 185 new BMW light trucks registered in Vista BMW Pompano Beach's AGA, 80 of them sold at Vista BMW Coconut Creek, 29 of them sold at Vista BMW Pompano Beach, 26 of them sold at Holman BMW Fort Lauderdale, and 4 of them sold at Holman BMW Pembroke Pines. In 2007, there were a total of 317 new BMW light trucks sold at Holman BMW Fort Lauderdale. Of this number, 33.44% were registered in its AGA; 15.77% were registered in Holman BMW Pembroke Pines' AGA; 9.78% were registered in Vista BMW Coconut Creek's AGA; and 8.20% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Fort Lauderdale's AGA purchasing new BMW light trucks, 36.43% did so from Holman BMW Fort Lauderdale; 21.31% did so from Vista BMW Coconut Creek; 14.43% did so from Holman BMW Pembroke Pines; and 8.59% did so from Vista BMW Pompano Beach. In 2007, there were a total of 455 new BMW light trucks sold at Holman BMW Pembroke Pines. Of this number, 63.30% were registered in its AGA; 9.23% were registered in Holman BMW Fort Lauderdale's AGA; 4.18% were registered in Vista BMW Coconut Creek's AGA; and 0.88% were registered in Vista BMW Pompano Beach's AGA. In 2007, of the consumers in Holman BMW Pembroke Pines' AGA purchasing new BMW light trucks, 53.33% did so from Holman BMW Pembroke Pines; 14.26% did so from Vista BMW Coconut Creek; 9.26% did so from Holman BMW Fort Lauderdale; and 2.78% did so from Vista BMW Pompano Beach. In 2007, there were a total of 678 new BMW light trucks sold at Vista BMW Coconut Creek. Of this number, 42.92% were registered in its AGA; 11.80% were registered in Vista BMW Pompano Beach's AGA; 11.36% were registered in Holman BMW Pembroke Pines' AGA; and 9.14% were registered in Holman BMW Fort Lauderdale's AGA. In 2007, of the consumers in Vista BMW Coconut Creek's AGA purchasing new BMW light trucks, 61.91% did so from Vista BMW Coconut Creek; 6.60% did so from Holman BMW Fort Lauderdale; 5.74% did so from Vista BMW Pompano Beach; and 4.04% did so from Holman BMW Pembroke Pines. In 2007, there were a total of 146 new BMW light trucks sold at Vista BMW Pompano Beach. Of this number, 19.86% were registered in its AGA; 18.49% were registered in Vista BMW Coconut Creek's AGA; 17.12% were registered in Holman BMW Fort Lauderdale's AGA; and 10.27% were registered in Holman BMW Pembroke Pines' AGA. In 2007, of the consumers in Vista BMW Pompano Beach's AGA purchasing new BMW light trucks, 43.24% did so from Vista BMW Coconut Creek; 15.68% did so from Vista BMW Pompano Beach; 14.05% did so from Holman BMW Fort Lauderdale; and 2.16% did so from Holman BMW Pembroke Pines. Holman's and Vista's inability to obtain vehicles hampered their sales performances in 2007 (as well as in 2005 and 2006). They both could have sold more BMW Vehicles and MINIs during this period had BMW NA supplied them with more product. Subsequent to 2007, with deteriorating macro-economic conditions and slackening nationwide demand, supply constraints affecting Holman and Vista have dissipated, at least with respect to BMW Vehicles. The United States economy has "officially" been in recession since February 2008. There has been a "substantial contraction of economic activity since then," with the rate accelerating following the Lehman Brothers bankruptcy on September 15, 2008, which resulted in "great distress [to] the financial markets" and the "worst financial panic this country has seen since the Great Depression." Statewide, there has been the "sharpest fall in housing starts in our state's history," a record number of foreclosures, and "a very strong deceleration in population growth." Broward County has not been spared from the economic slowdown, as reflected by the fact that it has lost population and the growth in the number of those employed in the county has almost come to a halt after 16 years of impressive growth. These less than favorable market conditions resulted in fewer BMW Vehicles being sold in the United States (and by Holman and Vista) the first nine months of 2008 compared to the same period in 2007.7 In fact, in 2008, Holman even "gave cars back to BMW [NA]." Responding to these conditions, BMW NA, in or around August 2008, announced production cuts of BMW Vehicles for the United States market of approximately 12%. Production volume for 2009 is anticipated to be about the same as it was for 2008. There no doubt will be an economic recovery, but there is insufficient record evidence upon which to base a finding as to when this recovery will occur, how strong it will be, and whether it will result in the market demand for BMW Vehicles returning to pre-2008 levels. Nationally, MINI sales have bucked the industry trend and increased over the first nine months of 2008, compared to the same period the previous year, with "[v]irtually all dealers asking for more MINIs" and the "factory . . . operating very close to capacity" to keep up with demand in the United States. BMW NA is working with its existing MINI dealers in the United States to enable them "to continue to grow," and it is also "selectively adding new dealers in white [unrepresented] spots around the country where the drive to a MINI dealer would be far too far for someone to consider." Market penetration is a measure of the sales performance of a line-make in a particular geographic area relative to that of competing line-makes. To determine whether a line-make's market penetration in an area has met reasonable expectations, it is necessary to select a reasonable market penetration standard (adjusted using segmentation analysis) against which that performance can be gauged. Comparing the number of actual registrations in the area to the number of expected registrations based on the selected standard yields a registration effectiveness rating (RER), expressed as a percentage. An RER of 100% or above signifies that reasonable expectations in terms of market penetration have been met or exceeded. An RER of less than 100% means that market penetration has been below reasonable expectations. The parties differ as to the market penetration standards that should be used in the instant consolidated cases. With respect BMW passenger cars and light trucks, BMW NA and Holman advocate application of a standard consisting of the average market penetration (as adjusted) of these line-makes in the Braman Miami BMW and South Motors BMW AGAs combined (Miami BMW Standard), while Vista contends that the average market penetration (as adjusted) achieved in Florida as a whole (Florida BMW Standard) should be used. In 2007, only two of the BMW Vehicle PMAs in Florida (those of Sandy Sansing BMW in Pensacola8 and Braman Miami BMW), and less than ten percent of the BMW Vehicle PMAs in the United States, had an RER of 100% or above applying the Miami BMW Standard. The Florida BMW Standard is a lower standard than the Miami BMW Standard; however, the average market penetration of BMW Vehicles has historically been higher in Florida than it has been regionally or nationally. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the area covering Holman's BMW Vehicle PMA, Vista's BMW Vehicle PMA, and Braman Miami's BMW Vehicle PMA combined, the RERs for new BMW passenger cars were 108.73%, 106.44%, and 110.64%, respectively, and the RERs for new BMW light trucks were 120.55%, 120.08%, and 120.80%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the area covering Holman's BMW Vehicle PMA and Vista's BMW Vehicle PMA combined, the RERs for new BMW passenger cars were 104.16%, 103.73%, and 105.58%, respectively, and the RERs for new BMW light trucks were 106.97%, 111.01%, and 111.61%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the area covering Holman's BMW Vehicle PMA and Vista's BMW Vehicle PMA combined, the RERs for new BMW passenger cars were 88.9%, 93.9%, 90.4%, and 96.7%, respectively, and the RERs for new BMW light trucks were 77%, 89.5%, 90.4%, and 93.7%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in Holman's BMW Vehicle PMA, the RERs for new BMW passenger cars were 113.15%, 110.20%, and 111.26%, respectively, and the RERs for new BMW light trucks were 111.59%, 114.85%, and 117.15%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in Holman's BMW Vehicle PMA, the RERs for new BMW passenger cars were 96.7%, 99.7%, 95.3%, and 101.1%, respectively, and the RERs for new BMW light trucks were 80.4%, 92.6%, 95%, and 99.4%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in Vista's BMW Vehicle PMA, the RERs for new BMW passenger cars were 95.59%, 97.41%, and 100%, respectively, and the RERs for new BMW light trucks were 101.87%, 106.74%, and 105.33%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in Vista's BMW Vehicle PMA, the RERs for new BMW passenger cars were 81.5%, 88.3%, 85.5%, and 92.2%, respectively, and the RERs for new BMW light trucks were 73.4%, 86%, 85.3%, and 87%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Holman BMW Fort Lauderdale AGA, the RERs for new BMW passenger cars were 110.26%, 110.61%, and 112.65%, respectively, and the RERs for new BMW light trucks were 109.43%, 119.44%, and 115.08%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman BMW Fort Lauderdale AGA, the RERs for new BMW passenger cars were 94.7%, 74%, 96.7%, and 103.5%, respectively, and the RERs for new BMW light trucks were 78.8%, 96.2%, 93.2%, and 113.2%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Holman BMW Pembroke Pines AGA, the RERs for new BMW passenger cars were 118.19%, 112.48%, and 112.15%, respectively, and the RERs for new BMW light trucks were 112.67%, 115.26%, and 116.41%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman BMW Pembroke Pines AGA, the RERs for new BMW passenger cars were 100.8%, 101.7%, 95.9%, and 101.1%, respectively, and the RERs for new BMW light trucks were 81.1%, 93%, 94.4%, and 90.3%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Vista BMW Coconut Creek AGA, the RERs for new BMW passenger cars were 92.66%, 94.39%, and 95.95%, respectively, and the RERs for new BMW light trucks were 102.04%, 104.21%, and 105.62%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista BMW Coconut Creek AGA, the RERs for new BMW passenger cars were 79%, 85.4%, 81.9%, and 86.1%, respectively, and the RERs for new BMW light trucks were 73.5%, 84.2%, 85.6%, and 86.9%, respectively. Applying the Florida BMW Standard, in 2005, 2006, and 2007, in the Vista BMW Pompano Beach AGA, the RERs for new BMW passenger cars were 97.48%, 104.28%, and 107.56%, respectively, and the RERs for new BMW light trucks were 100%, 114.88%, and 105.11%, respectively. Applying the Miami BMW Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista BMW Pompano Beach AGA, the RERs for new BMW passenger cars were 83.2%, 94.6%, 92.3%, and 102.7%, respectively, and the RERs for new BMW light trucks were 72.1%, 92.8%, 85.3%, and 88%, respectively. The Florida BMW Standard is a reasonable market penetration standard, in contrast to the unreasonably high Miami BMW Standard; and therefore it, not the Miami BMW Standard, should be used to determine the pertinent "reasonably expected market penetration." With respect MINI, BMW NA and Holman urge use of a market penetration standard reflecting MINI's average market penetration (as adjusted) in the Braman Miami MINI and South Motors MINI AGAs combined (Miami MINI Standard). Vista, on the other hand, asserts that the average market penetration attained by MINI in those portions of Florida where there is MINI representation (as adjusted) should be the benchmark (Florida Represented MINI Standard). In 2007, only one MINI PMA in Florida (Braman Miami's MINI PMA) and 16 of the 83 MINI PMAs in the United States had an RER of 100% or above applying the Miami MINI Standard. The Florida Represented MINI Standard is a lower standard than the Miami BMW Standard; however, the average market penetration of MINI has historically been higher in represented areas of Florida than it has been regionally or nationally. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the area covering Holman's MINI PMA, Vista's MINI PMA, Braman Miami's MINI PMA, and the unrepresented portion of southwestern Broward County combined, the RERs for new MINIs were 111.83%, 111.76%, and 107.22%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the area covering Holman's MINI PMA and Vista's MINI PMA combined, the RERs for new MINIs were 97.12%, 91.67%, and 85.96%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the area covering Holman's MINI PMA and Vista's MINI PMA combined, the RERs for new MINIs were 76.8%, 68.1%, 65.4%, and 71.2%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the area covering the Holman MINI AGA and Vista MINI AGA combined, the RERs for new MINIs were 96.01%, 88.79%, and 82.34%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the area covering the Holman MINI AGA and Vista MINI AGA combined, the RERs for new MINIs were 75.9%, 66.1%, 62.9%, and 70.9%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Holman MINI PMA, the RERs for new MINIs were 104.89%, 97.69%, and 100.87%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman MINI PMA, the RERs for new MINIs were 83.9%, 73%, 77.4%, and 79.9%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Holman MINI AGA, the RERs for new MINIs were 102.19%, 93.50%, and 92.21%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Holman MINI AGA, the RERs for new MINIs were 81%, 69.9%, 71%, and 77.8%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Vista MINI PMA, the RERs for new MINIs were 91.47%, 87.36%, and 73.40%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista MINI PMA, the RERs for new MINIs were 71.7%, 64.6%, 55.9%, and 63.9%, respectively. Applying the Florida Represented MINI Standard, in 2005, 2006, and 2007, in the Vista MINI AGA, the RERs for new MINIs were 90.39%, 84.78%, and 72.24%, respectively. Applying the Miami MINI Standard, in 2005, 2006, 2007, and 2008 (through June), in the Vista MINI AGA, the RERs for new MINIs were 70.9%, 62.7%, 55%, and 63.6%, respectively. The Florida Represented MINI Standard is a reasonable market penetration standard, in contrast to the unreasonably high Miami MINI Standard; and therefore it, not the Miami MINI Standard, should be used to determine pertinent "reasonably expected market penetration." BMW NA believes that the market penetration of new BMW Vehicles and new MINIs in the areas that it has identified as the relevant "communit[ies] or territor[ies]" in these cases can be improved if Holman BMW Fort Lauderdale and Holman MINI are relocated to the Proposed Location. Vista (whose Vista BMW Coconut Creek, Vista BMW Pompano Beach, and Vista MINI dealership locations are within a 12.5 mile radius of the Proposed Location) has protested these proposed relocations, and these protests are the subject of the instant cases. BMW NA and Holman are dissatisfied with the sales and service facilities at Holman BMW Fort Lauderdale's and Holman MINI's present locations. For each of these dealerships, they would like to have facilities that are larger, and sales and service operations that are adjacent to, not distant from, each other. They also want to avoid having to make MINI customers (who often stay at the dealership and watch their vehicles being serviced) share service facilities (as they do now) with BMW Vehicle customers (with whom they generally do not share similar interests). BMW NA has established minimum standards that the facilities of its BMW Vehicle and MINI dealers must meet. These standards deal with such things as the "size of [the] showroom," the "size of the new car display area," and the "number of service stalls in the service department," and they are "based on factors such as market potential, units in operation, and potential growth." In PMAs with two dealership locations, in determining whether the dealer has facilities that are in compliance with minimum standards, the facilities at both locations are "combined" and looked at together. Notwithstanding BMW NA's and Holman's dissatisfaction with the existing facilities at the Holman BMW Fort Lauderdale and Holman MINI dealership locations, Holman's BMW Vehicle and MINI facilities in Broward County meet the minimum standards required by BMW NA. Despite the facility-related operational challenges it faces, Holman's CSIs for its BMW Vehicle and MINI franchises are at or slightly above average, with the CSI for Holman BMW Fort Lauderdale being comparable to that for Holman BMW Pembroke Pines. Moreover, Holman is one of the highest volume BMW Vehicle dealers in the United States, and with respect to its new MINI sales, in 2007, these sales exceeded Holman's 400 unit SPG and were greater, by 38, than the new MINI sales of Holman's Broward County intrabrand competitor, Vista, which operated out of newer and more spacious facilities. According to Daniel Villani, the general manager of Holman BMW Fort Lauderdale, selling 175 new BMW Vehicles per month (2,100 per year) "pushes right up against" the limit of "what th[at] facility can handle" to "maintain an appropriate sales experience for the customers." In 2007, Holman BMW Fort Lauderdale sold a total of "a little less" than 1,800 new BMW Vehicles (1,748 of which were registered in Florida). Its sales declined in 2008. Holman made an extensive, good faith, but unsuccessful, effort over several years to find a reasonable and feasible way to have the sales and service facilities it wants for Holman BMW Fort Lauderdale and Holman MINI without having to relocate these dealerships outside a two-mile radius of their present locations. Holman purchased the Proposed Location (for $27 million) only after having engaged in this exhaustive search. The Proposed Location is a 10-acre site that is large enough to accommodate the facilities that Holman wants to construct for Holman BMW Fort Lauderdale and Holman MINI. These facilities would be considerably larger and more modern than those that these dealerships now have, potentially making consumers' shopping and service experiences at the dealerships more pleasant and enjoyable and improving the working conditions of the dealerships' employees. Construction of these new facilities would cost, according to Holman's current plans, between $20 and $25 million. There is no reason to believe that, if the Department approved the proposed relocations of Holman BMW Fort Lauderdale and Holman MINI to the Proposed Location (which is already zoned appropriately "for a car dealership"), Holman would not carry through with its construction plans. No evidence was presented of any obstacles, financial or otherwise, that would prevent or deter it from doing so. Accordingly, in assessing the potential impact of these proposed relocations, it is reasonable to assume that, if the proposed relocations are approved by the Department, the planned facilities will be built at the Proposed Location. Holman will be allocated more BMW Vehicles and MINIs to sell at these larger, new facilities inasmuch as BMW NA has agreed of increase Holman's SPGs if Holman BMW Fort Lauderdale and Holman MINI are relocated, as proposed. The Proposed Location is situated at the intersection of U.S. Route 1/Federal Highway and East Sunrise Boulevard in Fort Lauderdale, which, in 2007, had an average daily traffic count of 63,500 vehicles, 15,500 more vehicles than passed by the existing sales facilities of Holman BMW Fort Lauderdale and Holman MINI (Existing Sales Facilities). More vehicles going to and coming from downtown Fort Lauderdale, however, travel past the Existing Sales Facilities than the Proposed Location. To state the obvious, for these motorists, the Existing Sales Facilities would be more convenient, whereas the Proposed Location would be more convenient for those who drive by it every day. The Proposed Location is in an area that the Holman organization knows well as a result of its years of experience operating Honda, Rolls-Royce, and Bentley dealerships a short distance away. There has been new development in the immediate vicinity of the Proposed Location. A new Home Depot was recently constructed and condominium apartment buildings are under construction. To the south and west is Holiday Park, next to which is an established residential neighborhood. The Proposed Location is 2.23 miles (by air) north of the Existing Sales Facilities (2.5 miles, if driving). Moving Holman BMW Fort Lauderdale and Holman MINI to this location would situate them closer to their Vista intrabrand competitors to the north and further away from their Braman Miami intrabrand competitors to the south. The relocated dealerships would be 7.3 miles (by air) from Vista BMW Pompano Beach (8.2 miles, if driving); 10 miles (by air) from Vista BMW Coconut Creek and Vista MINI (12.4 miles, if driving); and 23.8 miles from Braman Miami BMW and Braman Miami MINI (24.8 miles, if driving), leaving consumers in northeastern Miami-Dade County and southeastern Broward County with slightly farther to travel to comparison shop for BMW and MINI products. The proposed relocations would also result in slight increases in the average distances BMW Vehicle and MINI customers in Holman's BMW Vehicle and MINI PMAs would have to travel to reach the nearest BMW or MINI dealership location. In short, the Proposed Location "is not optimal" and is less convenient "from a distance perspective" than the Existing Sales Facilities. The proposed relocation of Holman BMW Fort Lauderdale would result in Vista's BMW Vehicle dealerships losing "geographic advantage" to Holman BMW Fort Lauderdale in three zip codes (one zip code in which Vista BMW Coconut Creek currently has geographic advantage and, in 2007, 18 new BMW passenger vehicles and four new BMW light trucks sold by Vista BMW Coconut Creek were registered; and two zip codes in which Vista BMW Pompano Beach currently has geographic advantage and, in 2007, a total of 23 new BMW passenger vehicles and three new BMW light trucks sold by Vista BMW Pompano Beach were registered). The proposed relocation of Holman MINI would result in Vista MINI losing "geographic advantage" to Holman MINI in one zip code. In 2007, Vista MINI did not sell any MINIs that were registered in this zip code in which it would losing "geographic advantage." Any loss of "geographic advantage" to Holman would make it more difficult, but not impossible, for Vista to compete effectively against Holman. Vista is certainly capable of capturing sales in zip codes in which another dealer has "geographic advantage." Vista would be further disadvantaged as a result of the proposed relocations by having to compete (with respect to both BMW Vehicle and MINI sales and service) against Holman dealerships (Holman BMW Fort Lauderdale and Holman MINI) which would have improved facilities with greater capacity, making these dealerships more formidable competitors than they would be if the status quo were maintained. The impact of the proposed relocations on Vista, if Vista were to make no changes in its operations or facilities, would likely be negative (in terms of lost sales and service business), but the evidentiary record is insufficient for the undersigned, with any degree of confidence, to quantify, in dollars, what that negative impact would be. Vista dealership operations are "extremely profitable," and the company has a "strong" balance sheet, enabling it to withstand the changes in its competitive position of the type that the proposed relocations might bring about. It is possible that Vista could make changes in its operations (such as lowering prices) or to its facilities (such as following through with its "additional plans for expansion and renovation" of Vista BMW Pompano Beach) that would overcome the disadvantages resulting from the proposed relocations and help it to maintain its competitive position. Making these changes, however, could adversely effect Vista's bottom line. Because of the increase in SPGs Holman has been promised if it relocates its Holman BMW Fort Lauderdale and Holman MINI dealerships, Holman would gain allocation and have more BMW Vehicles and MINIs to sell if these proposed relocations were approved. This would result, were market demand to return to pre-2008 levels, in more BMW Vehicles and MINIs being sold in areas served by these Holman dealerships than would otherwise be the case, thereby benefiting BMW NA (a goal BMW NA would also be able to accomplish by simply increasing allocations to its dealers serving these areas to meet demand, without requiring any of them to relocate and build new facilities to receive these increased allocations). The evidentiary record is devoid of any evidence that BMW NA attempted to coerce Vista or any other existing dealer into consenting to the proposed relocations. Neither does the evidentiary record contain evidence that Vista is not in substantial compliance with its franchise agreements with BMW NA.9
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles issue a final order denying approval of the proposed relocations of Holman BMW Fort Lauderdale and Holman MINI to the Proposed Location inasmuch as BMW NA has failed to meet its burden of proving a lack of "adequate representation" of the BMW passenger car, BMW light truck, and MINI line-makes in the Relevant Com/Ters. DONE AND ENTERED this 27th day of April, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of April, 2009.
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 in this case is whether Respondents' application to establish a dealership to sell motorcycles manufactured by Chongqing Astronautical Bashan Motorcycle Manufacturer Co., Ltd. (BASH line-make), should be approved.
Findings Of Fact Petitioner filed an “Official Notice of Protest – Petition for Determination” dated August 21, 2014, with the Florida Department of Highway Safety and Motor Vehicles (HSMV). The protest/petition opposes Respondent’s noticed intention to establish a dealership to be called Wild Hogs Scooters and Motorsports, LLC, at 1431 South Woodland Boulevard, Deland (Volusia County), Florida. Notice of that intent was duly published in the Florida Administrative Register on August 29, 2014. (There was no explanation provided as to why Petitioner’s protest/petition was filed before the publication of the notice.) Petitioner’s protest/petition asserts that Respondent’s proposed new dealership will be located “within our territory.” Petitioner further asserts that Peace Industry Group is its “number two supplier of scooters, and represents 38% of our scooter sales.” Petitioner did not appear at final hearing or present any competent evidence to support these allegations. Respondent provided evidence suggesting that Petitioner has only purchased seven motor-scooters from Peace Industry Group. Petitioner did not appear at final hearing and present evidence as to its “standing to protest” as required by section 320.642(3), Florida Statutes. (Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 version.) Conversely, Respondent presented evidence that Petitioner’s dealership in Deland, Florida, has closed and gone out of business. This unrefuted evidence proves that Petitioner no longer has standing to protest Respondent’s proposed new dealership in the area. The propriety of Petitioner’s protest is the only issue in this proceeding. A petitioner without standing cannot pursue such a challenge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Highway Safety and Motor Vehicles denying Petitioner, Navitas Financial Group, Inc., d/b/a Pompano Pats Deland's protest of Respondent's proposed new dealership. DONE AND ENTERED this 12th day of January, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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, 2015. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-338 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 (eServed) Steve Hurm, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 (eServed) Meiredith Huang Peace Industry Group (USA), Inc. 2649 Mountain Industrial Boulevard Tucker, Georgia 30084 Patrick M. Johnson The Navitas Financial Group, Inc. 2075 South Woodland Boulevard Deland, Florida 32720 Jeff Rupp Wild Hogs Scooters and Motorsports, LLC 1861 Marysville Drive Deltona, Florida 32725 G. Michael Smith, Esquire Smith Collins, LLC 8565 Dunwoody Place Building 15 Atlanta, Georgia 30350 (eServed)
The Issue The issue in the case is whether an application for a new point franchise motor vehicle dealership filed by El Sol Trading, Inc., and Fishers Auction Services, Inc., d/b/a Fisher Auto Equipment Sales (Petitioners), should be approved.
Findings Of Fact There was no evidence presented at the hearing to establish that Respondent has a franchise agreement to sell or service SHEN motor vehicles, the line-make to be sold by Cycles and More, Inc. There was no evidence presented at the hearing that Respondent's dealership is physically located so as to meet the statutory requirements for standing to protest the establishment of the new point franchise motor vehicle dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing the protest filed in this case by Cycles and More, Inc., and granting Petitioners' request to establish a new point franchise motor vehicle dealership for the sale of SHEN motorcycles. DONE AND ENTERED this 7th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 2010. COPIES FURNISHED: Gloria Ma El Sol Trading, Inc., d/b/a Motobravo, Inc. 19877 Quiroz Court City of Industry, California 91789 Raymond L. Fisher Fishers Auction Services, Inc., d/b/a Fisher Auto Equipment Sales 119 Dixwood Avenue Edgewood, Florida 32132 Jeanne Ciriello Cycles & More, Inc. 5797 South Ridgewood Avenue Port Orange, Florida 32127 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 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
