The Issue The issue is whether Petitioner's establishment of North Tampa Chrysler Jeep Dodge, Inc. (North Tampa), as a successor motor vehicle dealer for Chrysler, Jeep and Dodge line-makes (vehicles) in Tampa, Florida, is exempt from the notice and protest requirements in Subsection 320.642(3), Florida Statutes (2009),1 pursuant to Subsection 320.642(5)(a).
Findings Of Fact Petitioner manufactures and sells Chrysler, Jeep and Dodge vehicles to authorized Chrysler, Jeep and Dodge dealers. Ulm is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ulm sells Chrysler, Jeep and Dodge vehicles at 2966 North Dale Mabry Highway, Tampa, Florida 33607. Ferman is a party to Dealer Sales and Service Agreements with Petitioner for Chrysler, Jeep and Dodge vehicles. Ferman sells Chrysler, Jeep and Dodge vehicles at 24314 State Road 54, Lutz, Florida 33559. It is undisputed that Petitioner has had four dealers in the Tampa metro market for a significant number of years. Petitioner's primary competitors also have had four or more dealers in the Tampa metro market. By appointing North Tampa as a successor dealer to Bob Wilson Dodge Chrysler Jeep (Wilson), Petitioner seeks to maintain the status quo of four Chrysler dealers in the Tampa metro market. In April 2008, Petitioner had four dealers in the Tampa metro market that each sold and serviced Chrysler, Jeep and Dodge vehicles. The four dealers were: Ulm, Ferman, Courtesy Chrysler Jeep Dodge, and Wilson. On April 25, 2008, Wilson filed a Chapter 11 petition in United States Bankruptcy Court in the Middle District of Florida (the Bankruptcy Court). At or about the same time, Wilson closed its doors and ceased selling and servicing Chrysler, Jeep and Dodge vehicles. The filing of Wilson’s bankruptcy petition precipitated an automatic stay under Section 362 of the Bankruptcy Code. The automatic stay prevented Petitioner from terminating Wilson’s franchise and dealer agreements (dealer agreements). But for Wilson’s bankruptcy filing, Petitioner would have sent Wilson a notice of termination when Wilson closed its doors and ceased dealership operations. Wilson’s cessation of business adversely impacted Petitioner. In relevant part, Petitioner lost sales and lacked a necessary fourth dealer to provide service to Chrysler, Jeep and Dodge customers in the Tampa metro market. Petitioner desired to reopen a dealership at or close to the former Wilson location as soon as possible to mitigate or eliminate the economic loss. During the automatic stay, Petitioner was legally precluded from unilaterally appointing a successor dealer to Wilson. Wilson still had valid dealer agreements for the Chrysler, Jeep and Dodge vehicles and, therefore, was still a dealer. During the automatic stay, Wilson attempted to sell its existing dealership assets, including the Chrysler, Jeep and Dodge dealer agreements. Any attempt by Petitioner to appoint a successor dealer or even negotiate with a successor dealer, would have undermined Wilson’s efforts to sell the dealerships and maximize the estate for the benefit of the creditors. A sale of the dealership required the consent of Wilson and Wilson’s largest creditor, Chrysler Financial. Petitioner did everything it could to accelerate a sale. However, Petitioner was not a party to the sale negotiations and had no ability to require or force Wilson to sell the dealership or its assets to any particular party or to do so within any particular time period. A preponderance of the evidence does not support a finding that Petitioner did anything to intentionally, or inadvertently, delay or manipulate the timing of a sale. On July 30, 2008, Petitioner filed a motion with the Bankruptcy Court to lift the automatic stay. The motion also sought the termination of Wilson’s dealer agreements. Petitioner filed the motion in the Bankruptcy Court in an attempt to hasten the sale negotiations. Petitioner also wanted to be able to terminate the dealer agreements as quickly as possible in the event that a sale was not consummated. The Bankruptcy Court did not initially grant Petitioner's motion. The court wanted to allow time for a sale of the dealership to proceed. During 2008 and early 2009, Wilson continued to negotiate with potential buyers for the dealership. On January 8, 2009, Wilson's motor vehicle dealer license expired. It became apparent to Petitioner that a sale of Wilson’s assets would be unlikely. Petitioner again asked the Bankruptcy Court to grant Petitioner's motion to lift the stay. On February 9, 2009, the Bankruptcy Court entered an order granting Petitioner's motion to lift the stay. However, the order did not terminate Wilson’s dealer agreements. On February 16, 2009, within a week of the entry of the order lifting the stay, Petitioner sent Wilson a notice of intent to terminate Wilson’s dealer agreements. Wilson received the notice of termination on February 23, 2009, and the termination became effective on March 10, 2009. A preponderance of evidence does not support a finding that Petitioner attempted to manipulate or delay the timing of the termination of Wilson’s dealer agreements. Petitioner began working on establishing a replacement dealership as soon as Wilson’s dealer agreements were terminated. Establishing a replacement dealership is a lengthy process that primarily involves finding a suitable dealer candidate, finding a suitable location and facility, and making sure that the candidate has the necessary capital to start and maintain the dealership. Petitioner talked to several potential candidates to replace the Wilson dealership, including Jerry Ulm, the principal of one of the complaining dealers in these cases. By letter dated June 24, 2009, Mr. Ulm advised Petitioner that he opposed the opening of a successor dealership for anyone else but wanted the successor dealership for himself should Petitioner decide to proceed. Petitioner determined that Petitioner would not be able to locate the successor dealership at the former Wilson facility. Petitioner considered several potential alternative locations for the successor dealership, including property offered by Ferman. Ferman had a vacant site on Fletcher Avenue in Tampa, Florida, which Ferman leased from a third party unrelated to this proceeding. Ferman offered to sublease the property to Petitioner. In a letter to Petitioner's real estate agent dated July 17, 2009, Ferman stated Ferman's understanding that Petitioner intended to use the property to establish a Chrysler, Jeep and Dodge dealership. Petitioner ultimately decided to locate the dealership at 10909 North Florida Avenue in Tampa, Florida. It is undisputed that this location is less than two miles from the former Wilson location. Before establishing the successor dealership, however, Petitioner wrote a letter to the Department on February 5, 2010 (the letter). The letter requested the Department to confirm that the establishment of the successor dealership would be exempt under Subsection 320.642(5)(a)1. from the notice and protest requirements in Subsection 320.642(3). The letter explained that Wilson had filed bankruptcy and ceased operations and that the bankruptcy had prevented Petitioner from terminating Wilson and appointing a successor dealership. The letter also provided the relevant dates of the bankruptcy, the lifting of the stay, and the termination of Wilson dealer agreements and advised the Department of Petitioner's intent to locate the successor dealership within two miles of Wilson’s former location. The letter asked the Department to confirm that the establishment of a successor dealership would be exempt if it was established within one year of March 10, 2009, when Petitioner terminated the Wilson dealer agreements. By separate e-mails dated February 9 and 12, 2010, the Department twice confirmed that it had consulted with counsel and determined that the establishment of a successor dealership to Wilson in the manner outlined by Petitioner would be exempt. Petitioner relied on this confirmation by the Department before proceeding with the appointment of a successor dealership. On February 24, 2010, Petitioner sent a second letter to the Department, stating Petitioner's intention to appoint North Tampa as the replacement and successor dealer for Wilson (the second letter). In the second letter, Petitioner again asserted its understanding that the establishment of North Tampa was exempt from the relevant statutory requirements for notice and protest. On February 24, 2010, Petitioner also submitted to the Department an application for a motor vehicle dealer license for North Tampa. On March 3, 2010, the Department issued a license to North Tampa for the Chrysler, Jeep and Dodge vehicles at 10909 North Florida Avenue in Tampa, Florida. On March 7, 2010, North Tampa opened for business. North Tampa has operated successfully and continuously and employs approximately 30 individuals at the site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding that the establishment of North Tampa as a successor motor vehicle dealer is exempt from the notice and protest requirements in Subsection 320.642(3) pursuant to Subsection 320.642(5)(a). DONE AND ENTERED this 11th day of October, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2010.
The Issue 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 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 The issue is whether Petitioner's applications to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN), should be granted. PRELIMANARY STATEMENT In the Florida Administrative Weekly, Volume 34, Number 21, May 23, 2008, the Department of Highway Safety and Motor Vehicles (DHSMV) published two Notices of Publication for a New Point Franchise Motor Vehicle Dealer in a County of Less than 300,000 Population. Said notices advised that Petitioner Gator Moto, LLC and Gator Moto, LLC (Petitioner) intended to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN). On or about June 3, 2008, Respondent Austin Global Enterprises, LLC, d/b/a New Scooters 4 Less (Respondent) filed two complaints with DHSMV about the proposed new motorcycle dealerships. DHSMV referred both complaints to the Division of Administrative Hearings on June 10, 2008. On July 2, 2008, Respondent filed its Compliance with Initial Order. On July 7, 2008, Petitioner filed Petitioner's Compliance with Initial Order Division of Administrative Hearings (DOAH) Case Nos. 08-2735 and 08-2736. This is the only communication that DOAH has received from Petitioner. On July 23, 2008, Administrative Law Judge Barbara J. Staros entered an Order of Consolidation for DOAH Case Nos. 08-2735 and 08-2736. On July 24, 2008, Judge Staros issued a Notice of Hearing, scheduling a final hearing on December 4, 2008. On November 26, 2008, Respondent filed its Compliance with Pre-hearing Instructions. Petitioner did not respond to the Order of Pre-hearing Instructions. On December 1, 2008, Judge Staros issued an Amended Notice of Hearing. The amended notice only changed the commencement time for the hearing. DOAH subsequently transferred these consolidated cases to the undersigned. On the morning of the December 4, 2008, hearing, DHSMV advised the undersigned's office that DHSMV had failed to arrange for the appearance of a court reporter at the hearing. Accordingly, the undersigned issued an Order Granting Continuance and requiring the parties to confer and provide DOAH with mutually-agreeable dates for re-scheduling the hearing. On December 17, 2008, Respondent filed its unilateral Compliance with Order Granting Continuance. Respondent filed this pleading after an unsuccessful attempt to confer with Petitioner. On December 18, 2008, the undersigned issued a Notice of Hearing and Order of Pre-hearing Instruction. The notice scheduled the hearing for February 9, 2008. On February 3, 2007, Respondent filed its unilateral Compliance with Order of Pre-hearing Instructions. Petitioner did not file a response to the Order of Pre-hearing Instructions. When the hearing commenced, Petitioner did not make an appearance. Respondent made an appearance and presented the testimony of Colin Austin, Respondent's Managing Member. Respondent did not offer any exhibits. The hearing transcript was not filed with DOAH. Neither party filed proposed findings of fact and conclusions of law.
Findings Of Fact Respondent has standing to protest Petitioner's applications pursuant to Section 320.642(3)(a)2., Florida Statutes (2008). According to DHSMV's published notice, Petitioner intended to establish two new motorcycle dealerships at 2106 Northwest 67th Place, Suite 15, Gainesville, Florida, on or after May 9, 2008. This location is only 4.5 miles from Respondent's place of business. At some point in time, Petitioner relocated its business to 7065 Northwest 22nd Street, Suite A, Gainesville, Florida. This location is only 5.3 miles from Respondent's place of business. Petitioner's application indicated that Petitioner intended to establish itself as a dealer of SHEN and JMSTAR motorcycles. Currently, Respondent sells those motorcycles under License No. VF/1020597/1. Respondent currently supplies itself with SHEN and JMSTAR products from a United States distributor. Respondent has a good faith belief that Petitioner intends to import the motorcycles and related products directly from the Chinese manufacturers. In that case, Petitioner would be able to sell the products at a lower price than Respondent and thereby deny Respondent the opportunity for reasonable growth. Petitioner did not notify DOAH about a change of address. DOAH's notices and orders directed to Petitioner at its address of record have not been returned. Petitioner has not communicated with DOAH since filing a response to the Initial Order. Petitioner did not make an appearance at the hearing. Apparently, Petitioner has abandoned its applications to establish the new dealerships.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's applications. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Collin Austin Austin Global Enterprise, LLC 118 Northwest 14th Avenue, Suite D Gainesville, Florida 32601 Justin Jackrel Gator Moto, LLC 4337 Northwest 35th Terrace Gainesville, Florida 32605 Justin Jackrel Gator Moto, LLC 2106 Northwest 67th Place, Suite 15 Gainesville, Florida 32653 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue for determination in this proceeding is whether Petitioner is entitled to the specific exemption in Section 320.642(5), Florida Statutes, from the general notice and protest provisions in Section 320.642.
Findings Of Fact Landmark Chevrolet, Inc., d/b/a A1 Mandel Chevrolet ("Landmark") operated a Chevrolet dealership located at 15455 West Dixie Highway, North Miami Beach, Dade County, Florida until August 2, 1989. Landmark operated the dealership pursuant to: (a) a Dealer Sales and Service Agreement (the "Dealer Agreement") between Landmark and Petitioner; and (b) a Franchised Motor Vehicle Dealer License from Respondent, License Number 9VF-10574. On August 2, 1989, Landmark ceased customary sales and service business operations. Respondent revoked Landmark's license on October 12, 1989. The license revocation resulted from an independent investigation conducted by Respondent. Petitioner notified Landmark on August 17, 1989, of Petitioner's intent to terminate the Dealer Agreement pursuant to Section 320.641, Florida Statutes. A copy of the notice of intent to terminate was furnished to Respondent in accordance with the requirements of Section 320.641. Landmark filed a Complaint with Respondent on November 15, 1989, contesting Petitioner's termination of the Dealer Agreement. The Complaint invoked the protection of Section 320.641, Florida Statutes. Pursuant to Section 320.641(7), Petitioner was prohibited from terminating the Dealer Agreement prior to a final adjudication in the franchise cancellation proceeding. Landmark's Complaint was referred to the Division of Administrative Hearings on December 6, 1989. Petitioner filed a motion to dismiss the Complaint. Petitioner's motion to dismiss was granted in a recommended order entered by Hearing Officer Michael Parrish on January 22, 1990. A final order dismissing Landmark's Complaint was entered by Respondent on April 30, 1990. The time for appealing the final order expired on May 30, 1990, without appeal. Petitioner notified Respondent on December 5, 1990, of Petitioner's intent to open a successor dealer for Landmark. Respondent determined in a letter dated December 19, 1990, that the proposed opening of the successor dealer was not exempt from the notice and protest provisions of Section 320.642, Florida Statutes. Respondent determined that the 12 month period of exemption began to run on October 12, 1989, when Landmark's license was revoked and expired prior to the date of the proposed opening of the successor dealer. Petitioner had no prior notice of either Respondent's intent to revoke Landmark's license or the actual revocation of Landmark's license. Petitioner first learned of Respondent's revocation of Landmark's license on December 19, 1990. At that time, Respondent notified Petitioner that the 12 month period of exemption from protest had expired for purposes of the proposed opening of the successor dealer in North Miami Beach. Respondent's determination that the 12 month period of exemption in Section 320.642(5), Florida Statutes, began on the date that Landmark's license was revoked constituted incipient agency action. The incipient agency action taken by Respondent deviated from Respondent's prior practice. Respondent's action determined the substantial interests of Petitioner. Petitioner was prohibited by Section 320.641(7), Florida Statutes, from opening a successor dealer pursuant to Section 320.642(5) until a final adjudication was entered in the franchise cancellation proceeding under Section 320.641. Landmark's license was revoked on October 12, 1989. The franchise cancellation proceeding began on November 15, 1989, when the Landmark filed its complaint. A final order was entered in the franchise cancellation proceeding on April 30, 1990. The time for appeal expired on May 30, 1990. Petitioner did not notify Respondent of Petitioner's intent to open a successor dealer until December 5, 1990. Proposed Rule 15C-7.004 was published in the Florida Administrative Weekly, Vol. 17, No. 16, at page 1721, on April 19, 1991. Proposed Rule 15C-7.004(4)(a) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. If the license of an existing franchised motor vehicle dealer-is revoked for any reason, or surrendered, an application for a license to permit the reopening of the same dealer or a successor dealer within twelve months of the license revocation or surrender shall not be considered the establishment of an additional dealership if one of the conditions set forth in Section 320.642(5) is met by the proposed dealer. (emphasis added)4 Proposed Rule 15C-7.004(4)(a) was published prior to the formal hearing but will not become effective until after the formal hearing.5 Respondent's determination in this proceeding, that a closing occurs upon the revocation or surrender of a dealer's license, is consistent with Proposed Rule 15C-7.004(4) (a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order should be entered denying Petitioner's request for an exemption from protest under Section 320.642(5), Florida Statues, for the proposed opening of a successor dealership. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of July, 1991. DANIEL MANRY 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 15th day of July, 1991.
The Issue The issue in the case is whether an application for a new point franchise motor vehicle dealership filed by Zongshen, Inc., and Tropical Scooters, LLC, should be approved.
Findings Of Fact Tropical is seeking to establish a new point franchise motor vehicle dealership at 11610 Seminole Boulevard, Largo, in Pinellas County, Florida, for line-make ZONG. The Respondent is an existing franchise dealer for ZONG-manufactured vehicles located at 1450 First Avenue, North, St. Petersburg, in Pinellas County, Florida. The Respondent is located within 12.5 miles of the proposed new point motor vehicle dealership location. The Respondent timely filed a protest of the proposed dealership. The Petitioner presented 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 Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order, denying the Petitioners' application for establishment of the new point franchise motor vehicle dealer franchise. DONE AND ENTERED this 19th day of November, 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 19th day of November, 2009. COPIES FURNISHED: Patricia Fornes Zongshen, Inc. 3511 Northwest 113th Court Miami, Florida 33178 Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Chris Densmore Scooter Escapes, LLC, d/b/a Scooter Escapes 1450 First Avenue, North St. Petersburg, Florida 33705 Michele R. Stanley Tropical Scooters, LLC 11610 Seminole Boulevard Largo, Florida 33778 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Petitioners are entitled to a proposed motor vehicle dealership in Seminole County, Florida.
Findings Of Fact DOAH provided the parties with adequate notice of the final hearing. On December 11, 2008, DOAH mailed a Notice of Hearing to each of the parties, scheduling the final hearing for April 6, 2009. No Notice was returned as undelivered. No party objected to a final hearing on April 6, 2009. On December 11, 2008, DOAH also issued an Order of Pre- hearing Instructions that, in relevant part, required the parties to file a pre-hearing stipulation which was to include a list of witnesses and exhibits to be called and submitted at the final hearing. No party complied with the Order. The documents forwarded to DOAH by the Department support the findings. The Notice of Publication for a New Point Franchise Motor Vehicle Dealer in a County of More than 300,000 Population was published in the Florida Administrative Weekly, Volume 34, Number 43, on October 24, 2008. On behalf of Respondent, Mr. James Sursely timely filed a protest letter dated November 7, 2008, with Ms. Nalini Vinayak, the administrator at the Department responsible for receiving such protests. The remaining facts are undisputed in this proceeding. The proposed new point franchise motor vehicle dealer is for a line-make identified in the record as Chunfeng Holding Group Co. Ltd. (CFHG) motorcycles. The proposed location is in Seminole County, Florida. Seminole County has a population in excess of 300,000. The proposed new point franchise motor vehicle dealer is located at 3311 West Lake Mary Boulevard, Lake Mary, Florida. Respondent owns and operates an existing CFHG dealership that is located at 306 West Main Street, Apopka, Orange, County, Florida, 32712. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership. The petitioners submitted no evidence that Respondent is "not providing adequate representation" of the same line-make motor vehicles in the community or territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying the establishment of the proposed franchise dealership. DONE AND ENTERED this 21st day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2009.
The Issue The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Longwood, Florida.
Findings Of Fact Respondent is an existing franchised dealer of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ). Petitioners have proposed the establishment of a new dealership to sell the same line and make of motorcycles as those sold by Respondent. Respondent's dealership is located at 306 West Main Street, Apopka, Florida 32712. Petitioners' proposed dealership would be located at 821 South Highway 17-92, Suite 101, Longwood, Florida 32750. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation enter a final order denying the establishment of Petitioners' proposed franchise. DONE AND ENTERED this 14th day of January, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 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 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 David Levison Mega Power Sports, Corp. 921 West International Speedway Boulevard Daytona Beach, Florida 32114 David Levison Mega Powersports Corp. 390 North Beach Street Daytona Beach, Florida 32114 Leo Su Galaxy Powersports, LLC, d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712
The Issue The issue in this case is whether Petitioner's application to establish a dealership to sell motorcycles manufactured by JMSTAR Motorcycle Company should be approved.
Findings Of Fact Petitioner is a Florida-limited liability company located in Pinellas County, Florida.1 Petitioner is in the business of selling motorcycles and motorscooters. In February 2009, Petitioner submitted to DHSMV a letter of intent to establish A1 Motorscooters.com, LLC, as a new dealership for the purpose of selling JMSTAR motorscooters. Notice of that intent was duly published in the February 27, 2009, FAW, Volume 35, Number 8. In its letter of intent to DHSMV, Petitioner did not list Respondent as a dealer with standing to protest its letter of intent. That was due to the fact that Respondent did not appear on the list of licensed dealers provided to Petitioner by DHSMV (as will be discussed more fully herein). Respondent is a Florida-limited liability company doing business in Pinellas County, Florida. It sells different makes of motorcycles. On June 4, 2009, Respondent was made aware of Petitioner's letter of intent (some 98 days after Petitioner's Notice was published). Respondent immediately filed a protest, stating that Respondent was "approved" to sell the same line of motorcycles and that Respondent "just received [their] license and began selling several months ago." In October 2008, Respondent received a Final Order from DHSMV approving Respondent as a dealer for the JMSTAR line of motorcycles. That Final Order gave Respondent a preliminary approval to sell JMSTAR motorcycles, but only upon completion of the application process and issuance of a license by the Department. Respondent's license was, ultimately, issued effective April 21, 2009. Thus, at the time of the FAW Notice as to Petitioner's new dealership, Respondent had been preliminarily approved, but was not a licensed dealer of JMSTAR motorcyles. Respondent had a prior agreement with SunL Group, Inc. ("SunL"), to sell motorcycles as a franchisee or independent contractor. Under that arrangement, Respondent could sell various kinds of motorcycles, including the JMSTAR line. At some point in time, the agreement between SunL and Respondent was terminated. Further, SunL's dealership license was revoked by DHSMV on June 5, 2009. SunL was not a party to this proceeding, and no one appeared on its behalf. When Petitioner filed its letter of intent with DHSMV, it asked for and received a list of all authorized dealers of JMSTAR motorcycles so that those dealers could be appropriately notified. DHSMV provided a list to Petitioner. Respondent was not on the list because, at that time, Respondent was not yet a licensed dealer of JMSTAR motorcyles. (Apparently SunL was a licensed dealer and could have protested Petitioner's letter of intent, but there is no evidence that it did so.) Respondent did not provide any credible testimony or other competent evidence at final hearing as to the impact of Petitioner's proposed dealership on Respondent, nor were any of the review criteria set forth in Florida Statutes concerning the approval or denial of a new dealership discussed by either party.
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 Respondent, ECO Green Machine, LLC's, protest of Petitioner, A1 Motorscooter.com, LLC's, proposed dealership. DONE AND ENTERED this 12th day of January, 2010, in Tallahassee, Leon County, Florida. 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, 2010.
