The Issue The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Apopka, Florida.
Findings Of Fact Respondent is an existing franchised dealer of motorcycles manufactured by Chuanl Motorcycle Manufacturing Co., Ltd. (CHUA). 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 1918 South Orange Blossom Trail, Apopka, Florida 32703. 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 Mei Zhou SunL Group, Inc. 8551 Ester Boulevard Irving, Texas 75063 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Tina Wilson TGT Companies, Inc., d/b/a Extreme Motor Sales 1918 South Orange Blossom Trail Apopka, Florida 32703
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 Chunfeng Holding Group Co. Ltd.(CFHG). The Respondent is an existing franchise motor dealer for line-make Chunfeng Holding Group Co. Ltd.(CFHG) and is 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 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 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 Mathu Solo LS Motorsports, LLC 10215 South Sam Houston Parkway West Suite 100 Houston, Texas 77071 Michael Konczal Michael J. Konczal, Inc. 1801 Twenty-Eighth Street, North St. Petersburg, Florida 33715 David Dubin Seminole Scooters, Inc. 6227 Park Boulevard Pinellas Park, Florida 33781 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 Petitioners' proposed dealership should be approved.
Findings Of Fact On October 10, 2008, in the Florida Administrative Weekly, Volume 34, Number 41, three separate Notices of Publication for a New Point Franchise Motor Vehicle Dealer in a County of More than 300,000 Population were published. The first notice provided, in relevant part, as follows: Pursuant to Section 320.642, Florida Statutes, notice is given that [Galaxy] intends to allow the establishment of [Treasure Coast] as a dealership for the sale of motorcycles manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWI) at 7320 South U.S. 1, Port St. Lucie (St. Lucie County) Florida 34952 on or after September 26, 2008. The second notice provided, in relevant part, as follows: Pursuant to Section 320.642, Florida Statutes, notice is given that [Galaxy] intends to allow the establishment of [Treasure Coast] as a dealership for the sale of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 7320 South U.S. 1, Port St. Lucie (St. Lucie County) Florida 34952 on or after September 26, 2008. The third notice provided, in relevant part, as follows: Pursuant to Section 320.642, Florida Statutes, notice is given that [Galaxy] intends to allow the establishment of [Treasure Coast] as a dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 7320 South U.S. 1, Port St. Lucie (St. Lucie County) Florida 34952 on or after September 26, 2008. By letter dated October 16, 2008, Respondent filed the following letter of protest with the Department of Highway Safety and Motor Vehicles: In regards to the intent of [Galaxy] to establish a Benzhou Vehicle Industry Group LTD (SHWI) with [Treasure Coast] for the sale of motorcycles at 7320 South U.S. 1, Port St. Lucie, Fl [sic] 34952. This letter represents a written complaint to their application for this dealership, because we already represent said dealership. This letter also represents a complaint on the following conditions: The proposed dealership would be within 20 miles of our dealership, as measured by straight line distance. They are 8.61 miles away per mapquest. The proposed dealership is to be located within the contractual area outlined in our dealer agreement, as we have a 20 mile exclusivity. We have made more than 25% of our retail sales to persons whose registered household addresses are within 20 straight line miles of the proposed dealership during the past 12 month period. We have established three out of four of the conditions exist, so we are submitting this complaint protesting the establishment of the above dealership. By letter dated October 22, 2008, the Department referred this matter to DOAH. The letter of referral provided, in relevant part, as follows: Pursuant to the provisions of section 120.57, Florida Statutes, we are enclosing a Complaint and supporting documents pursuant to 320.642, Florida Statutes, filed by Wendy and Mark Mourning, on behalf of the above Respondent, thus requiring a hearing under the term of this statute. [Respondent] is protesting the establishment of [Treasure Coast] for the line-make Benzhou Vehicle Industry Group Co. Ltd. (SHWI) at 7320 South US 1, Port St. Lucie, Florida 34952. The protest filed by Respondent was timely. Respondent's dealership is within 8.61 miles of the proposed site. Mr. Mourning verified the driving distance and presented the measured distance as computed by the website Mapquest. Further, the driving time between the two points is less than 30 minutes. Respondent has dealer agreements to sell various lines of motorcycles, including the following: motorcycles manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWI); motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ); and motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG). Although Respondent still has a valid dealer agreement as to motorcycles manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWI), Respondent has discontinued the sale of those motorcycles. Mr. Mourning testified that Respondent has no objection to permitting Treasure Coast to sell motorcycles manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWI). As to motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ), and motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG), Respondent has served the area for not less than two years and has successfully promoted those two lines of motorcycles within its territory or community. Respondent established that its sales of those motorcycles are within 12.5 miles of the proposed dealership. Respondent adequately represents Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) and Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) in Respondent’s community or territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Highway Safety and Motor Vehicles enter a Final Order authorizing Treasure Coast to sell motorcycles manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWI) at Petitioners' proposed dealership. DONE AND ENTERED this 16th day of April, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2009. COPIES FURNISHED: Leo Su Galaxy Powersports, LLC, d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Mark Mourning and Wendy Mourning WenMark Inc., d/b/a All The Wheel Toys 1540 Northwest Federal Highway Stuart, Florida 34994 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Guy Young J & F South Florida Investments, Inc. d/b/a Treasure Coast Scooters and Things 7320 South US 1 Port St. Lucie, Florida 34952 Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32344 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32344
The Issue The issue in this case is whether Petitioners' notice of intent to establish a supplemental motor vehicle dealership was effective to commence the statutory protest period, which must be completed as a necessary condition of licensure.
Findings Of Fact By letter dated September 13, 2002, Petitioner BMW of North America, LLC ("BMW NA") notified Respondent Department Of Highway Safety and Motor Vehicles (the "Department") that Petitioner Pompano Imports, Inc., d/b/a Vista Motors ("Vista"), intended to relocate its dealership, where BMW cars and light trucks were being sold and serviced, from 700 North Federal Highway in Pompano Beach ("Source Site") to 4401 West Sample Road in Coconut Creek ("Target Site").1 BMW NA and Vista took the position that, pursuant to Section 320.642(5), Florida Statutes,2 the proposed reopening of the "relocatee-dealership"3 at the Target Site should not be considered subject to competing dealers' administrative protests. Pursuant to Section 320.642(1)(d), Florida Statutes, the Department caused BMW NA's September 13, 2002, notice of relocation to be published in the September 27, 2002, edition of the Florida Administrative Weekly. On September 27, 2002, also in accordance with Section 320.642(1)(d), the Department mailed copies of BMW NA's September 13, 2002, notice of relocation to all existing BMW passenger car dealers and BMW light truck dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. Within two weeks, however, the Department mailed letters to these same dealers explaining that the proposed reopening of Vista's relocatee- dealership at the Target Site would not be a "protestable" event after all. A little more than seven months later, by letter dated May 5, 2003, BMW NA notified the Department that Vista planned to establish an additional or "supplemental" dealership for selling and servicing BMW cars and light trucks at 744 North Federal Highway in Pompano Beach (the "Supplemental Site"), a parcel which is contiguous to the Source Site where the relocatee-dealership then remained open for business, the previously announced relocation having not yet taken place. As required by statute, the Department not only caused a notice to be published in the May 16, 2003, edition of the Florida Administrative Weekly regarding this putative supplemental dealership, but also it mailed copies of BMW NA's May 5, 2003, notice to all existing BMW passenger car dealers and BMW light truck dealers in Collier, Palm Beach, Miami-Dade, and Broward Counties. No dealer timely protested Vista's intended opening of a supplemental dealership at the Supplemental Site. Generally speaking, after the Department has received notice from a licensee or applicant regarding the latter's intent either to establish an additional dealership or to relocate an existing dealership, and after such notice has been duly published in accordance with Section 320.642, Florida Statutes, the Department routinely enters a final order authorizing the issuance of a license for the proposed additional or relocated dealership upon the applicant's satisfaction of all other requirements for licensure, unless a timely protest is filed, in which case final agency action must be taken pursuant to Chapter 120.4 In this case, however, by letter dated July 10, 2003, the Department informed BMW NA and Vista of its decision that because the putative relocatee- dealership was still doing business at the Source Site, and because the Supplemental Site was immediately adjacent to the Source Site, the proposed supplemental dealership would be deemed an "expansion" of the putative relocatee-dealership, as opposed to an "additional" dealership. Based on this determination, the Department concluded in its July 10, 2003, correspondence that: (1) a license would not be issued for the expansion of Vista's dealership into the Supplemental Site; (2) the opening of the dealership that Vista proposed to establish at the Target Site, which would come into being as the putative relocatee-dealership expanded, could not be considered exempt from protest, for no "relocation" would be occurring; and (3) notice and an opportunity to protest would need to be provided with respect to the Target Site before a license for an additional dealership at that location could be issued. BMW NA and Vista each requested a hearing to challenge the Department's findings and conclusions, initiating, respectively, DOAH Case Nos. 03-2969 and 03-2970. These cases were subsequently consolidated. On September 30, 2003, before the final hearing in the consolidated proceeding, the Department, BMW NA, and Vista entered into a settlement agreement. Upon being advised of the settlement, the presiding administrative law judge (not the undersigned) closed DOAH's files in Case Nos. 03-2969 and 03-2970 and relinquished jurisdiction to the Department. Pursuant to the referenced settlement agreement, the Department, on October 7, 2003, approved Vista's application to relocate its BMW passenger car and BMW light truck dealership from the Source Site to the Target Site, as had been proposed in the September 13, 2002, notice of relocation. Vista's motor vehicle dealer license was, accordingly, modified to permit Vista to conduct dealership activities with regard to BMW passenger cars and BMW light trucks at the Target Site. This modification effectively "de-licensed" Vista as a BMW dealer at the Source Site. On October 7, 2003, Vista stopped selling and servicing BMW passenger cars and BMW light trucks at the Source Site. (Vista continued to operate a preexisting, separately licensed Volkswagen dealership at the Source Site.) On October 8, 2003, Vista started selling and servicing BMW passenger cars and BMW light trucks at the Target Site. (Vista continued to operate a preexisting, separately licensed MINI dealership at the Target Site.) Also pursuant to the settlement agreement referenced above, the Department notified BMW NA and Vista, by letter dated October 15, 2003, of the following relevant findings:5 Pursuant to Rule 15C-7.004(3)(d)2, Florida Administrative Code, the Department views [Vista's] proposed additional motor vehicle BMW dealership . . . at [the Supplemental Site] as an expansion of Vista Motors' existing licensed BMW dealership at [the Source Site.] Therefore, the [proposed project at the Supplemental Site] . . . , [being] in fact merely an expansion of Vista Motors' existing location [i.e. the Source Site], [is] not [an additional BMW dealership] subject to Section 320.642, Florida Statutes. [T]hus BMW is essentially intending to remain open at its existing . . . location [meaning, apparently, the Source Site] at the same time it is relocating to [the Target Site]. Based on the foregoing findings, the Department concluded as follows:6 [The exemption from protest afforded under Section 320.642(5), Florida Statutes, cannot apply where the putative relocatee- dealership of] Vista Motors . . . remain[s] open at the [Source Site] as a franchise BMW dealer . . . [while] at the same time [Vista] move[s] [the putative relocatee- dealership] to the [Target Site]. Therefore, Vista may not be issued a license as a franchise BMW dealer at the [Supplemental Site], until it relocates to [the Target Site] and thereafter publishes a new notification of an additional dealership for the [Supplemental Site], and those proceedings, if any, are concluded in favor of the additional dealership. (Emphasis added.) At first blush, the October 15, 2003, notice seems curiously oblivious to the fact that the Department had already approved Vista's relocation to the Target Site and modified Vista's license accordingly. Indeed, there appears to be some tension between the "facts" found in the notice and the actual facts on the ground. For example, while the notice refers to Vista's existing licensed BMW dealership at the Source Site, the undisputed fact is that Vista was not licensed to operate a BMW dealership at the Source Site as of October 7, 2003. Thus, if the Department believed, as a literal reading of the notice suggests, that Vista's intent on October 15, 2003, was to expand an existing BMW dealership at the Source Site, then it would be reasonable to wonder why the Department did not conclude that Vista was operating at the Source Site without a license. Conclusion 1 seems likewise to be at odds with what had transpired in fact. On the one hand, the Department concludes that Vista has remained open at the Source Site, which it cannot do and also claim, as it had done, the Section 320.642(5) exemption. Yet, on the other hand, the Department had, in fact, previously authorized Vista to operate a BMW dealership at the Target Site under the auspices of the very exemption that the October 15, 2003, notice concludes cannot apply because Vista is still open (according to the "findings") at the Source Site. To properly understand the October 15, 2003, notice, it is necessary to focus on the word "thereafter" in Conclusion 2(b). Clearly, the timing of the "new notification" is critical. The Department is saying that, where a dealer has previously given notice of its intent to relocate an existing dealership, taking advantage of Section 320.642(5) to exempt the reopening of such relocatee-dealership at the target site, if the dealer now wants to establish a "supplemental" dealership at the source site7 (hereafter, such a dealership will be called a "backfill dealership"8) then the relocatee-dealership must truly be relocated before effective notice of the proposed backfill dealership may be published. Under this policy,9 hereafter called the "Exempt Relocation/Backfill Policy," it is appropriate for the Department, in determining retrospectively10 whether the notice of the proposed "supplemental" dealership was effective, to look at the facts as of the date of the notice. In this case, the subject notice was given to the Department on May 5, 2003, and published in the Florida Administrative Weekly on May 16, 2003. With these points in mind, it becomes apparent that the "findings" in the October 15, 2003, notice, which seem inconsistent with the facts on the ground, actually refer to the state of affairs in May 2003. Once the findings in the October 15, 2003, notice are understood as being retrospective in nature, the notice begins to make sense. What the Department found was that Vista had not relocated its BMW dealership from the Source Site to the Target Site as of May 5, 2003, when notice of the proposed backfill dealership was furnished to the Department. As a result, because Vista had previously sought the protection of Section 320.642(5) for the reopening of its relocatee-dealership, the May 5, 2003, notice respecting the backfill dealership was premature and ineffective. To remedy the problem of premature notice, the Department would afford Vista a second chance to give effective notice in the proper sequence, after the relocation of its BMW dealership from the Source Site to the Target Site had taken place.11 It is important to note that, in the October 15, 2003, notice, the Department neither needed to make nor made a finding, one way or the other, as to whether Vista's putative relocatee-dealership has, in fact, moved from the Source Site to the Target Site.12 Thus, such a determination should not be made in and through this proceeding, but, rather, by the Department (preliminarily) either (a) at the time BMW NA gives notice to the Department, again, of the proposed backfill dealership at Supplemental Site or (b) after publication of such notice in the Florida Administrative Weekly but before a license for the proposed backfill dealership is issued or denied.13 It is also not necessary, and indeed would be inappropriate, to determine in this case what action, if any, the Department should take if it subsequently determines that Vista's putative relocatee- dealership has not in fact relocated from the Source Site to the Target Site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order providing that Vista shall be issued a license to operate a BMW dealership at 744 North Federal Highway only if: (a) prior to the time notice is given to the Department pursuant to Section 320.642, Florida Statutes, regarding the proposed dealership, Vista has actually relocated the dealership that existed at 700 North Federal Highway to 4401 West Sample Road in Coconut Creek; any protest filed against the proposed dealership is resolved in Petitioners' favor; and (c) all other legal requirements for licensure are met. DONE AND ENTERED this 15th day of April, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2004.
The Issue Whether Respondent, Maserati North America, Inc.’s ("MNA"), proposed 2017 Commercial Policy Program ("2017 Program") is a modification of the franchise agreement between MNA and Petitioner, New Country Motor Cars of Palm Beach, LLC, d/b/a Maserati of Palm Beach ("Palm Beach"), or Petitioner Recovery Racing, LLC, d/b/a Maserati of Ft. Lauderdale ("Fort Lauderdale"); and, if so, whether it is fair and not prohibited by section 320.641(3), Florida Statutes (2016). Whether MNA’s proposed modifications to the Existing Franchise Agreements with Petitioners are fair and not prohibited under section 320.641(3).
Findings Of Fact Based on the evidence presented, the Pre-hearing Stipulation of the parties and the record as a whole, the following relevant and material Findings of Fact are made2/:
Recommendation Based upon 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: (1) DISMISSING Petitioners’ claims regarding MNA’s 2017 Commercial Policy Bonus Program; and (2) GRANTING, IN PART, AND DENYING, IN PART, Petitioners’ claims regarding modifications in the Proposed New Agreement, as set forth above. DONE AND ENTERED this 23rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 23rd day of January, 2018.
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 Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Fort Walton Beach, Florida.
Findings Of Fact The evidence showed that the dealership proposed by Petitioners would sell the same line and make of motorcycles as those sold by Respondent. The proposed dealership would also compete in the Respondent’s territory since it would be located in the same county as Respondent and would be within 20 miles of Respondent. Respondent has standing to protest the establishment of the proposed dealership. On September 18, 2007, a Notice of Hearing setting the date, time and location of final hearing was issued in this case. The Notice of Hearing was mailed to the last known, valid addresses of the Petitioners, which were also the addresses provided in Petitioners’ Notice of Publication. Neither Notice of Hearing was returned. This cause came on for hearing as noticed. After waiting more than an hour, the Petitioners failed to appear to prosecute their claim. There has been no communication from the Petitioners before, during, or since the hearing to indicate that they would not be attending the final hearing. Because of Petitioners’ failure to appear, there was no evidence to demonstrate that Petitioners are entitled to a franchise motor vehicle dealership in Fort Walton Beach, Florida. Absent such evidence, the establishment of the proposed dealership should be denied.
Recommendation Accordingly, in consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Florida Department of Highway Safety and Motor Vehicles denying the establishment of Petitioners’ proposed franchise. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of January, 2008. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Carl A. Ford, Director Division of Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0635 Judson M. Chapman, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 David Wray Wholesale Nation Automotive, Inc. 319 Miracle Strip Parkway Fort Walton Beach, Florida 32548 Mei Zhou SunL Group, Inc. 8551 Esters Boulevard Irvine, Texas 75063 Curtis Mitchell Coastal Powersports 12 Eglin Parkway Southeast Fort Walton Beach, Florida 32548
The Issue The issue for determination in this proceeding is whether Proposed Rules 15C-7.004(4)(a), (4)(b), and (7)(d) and Florida Administrative Code Rule 15C- 1.008 each constitute an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties The Department of Highway Safety and Motor Vehicles (the "Department") is the agency responsible for promulgating and administering the rules challenged in this proceeding. The Department administers Chapter 320, Florida Statutes, 2/ which governs the operation of motor vehicle dealers and manufacturers in Florida. General Motors Corporation ("GM") is a corporation incorporated in Delaware and registered to do business in Florida. GM's corporate address and principal place of business is 3044 West Grand Boulevard, Detroit, Michigan 48202. GM is licensed by the Department, pursuant to Section 320.60, Florida Statutes, as a manufacturer of motor vehicles. GM has entered into and will enter into dealer sales and service agreements to authorize motor vehicle dealers to sell GM vehicles at locations in Florida. The Florida Automobile Dealers Association (??FADA??) and the South Florida Auto Truck Dealers Association ("SFATDA") are trade associations composed of both domestic and foreign line-make franchised motor vehicle dealers. FADA is composed of more than 800 franchised motor vehicle dealers licensed in the state. SFATDA is composed of virtually all franchised motor vehicle dealers in Palm Beach, Broward, Dade, and Monroe Counties. The Motor Vehicle Manufacturers Association of the United States, Inc. ("MVMA") is a trade association whose member companies manufacture motor vehicles produced in the United States. MVMA members include Chrysler Corporation, Ford Motor Company, GM, Honda of America MFG., Inc., Navistar International Transportation Corporation, PACCAR Inc., and Volvo North America Corporation. The principal place of business for MVMA is 7430 Second Avenue, Suite 300, Detroit, Michigan 48202. All of the members of MVVA, including Ford Motor Company ("Ford"), are licensed pursuant to Section 320.61, Florida Statutes. The Association of International Automobile Manufacturers, Inc. ("AIAM") is a trade association of manufacturers and manufacturer-authorized importers which import motor vehicles for sale in the United States. AIAM members and associates affected by the challenged rules include: American Honda Motor Company, Inc.; America Suzuki Motor Corporation; BMW of North America, Inc.; Daihatsu America, Inc.; Fiat Auto U.S.A., Inc.; Hyundai Motor America; Isuzu Motors America, Inc.; Jaguar Cars, Inc.; Mazda Motor of America, Inc., Mitsubishi Motor Sales of America, Inc.; Nissan North America, Inc.; Peugeot Motors of America, Inc.; Porsche Cars North America, Inc., Rolls-Royce Motor Cars, Inc.; Rover Group USA, Inc.; Saab Cars, USA, Inc.; Subaru of America, Inc.; Toyota Motor Sales, U.S.A., Inc.; Volkswagen of America, Inc., Volvo North America Corporation; and Yugo America, Inc. The principal place of business for AIAM is 1001 19th Street North, Suite 1002, Arlington, Virginia 22209. Each member of AIAM is either licensed as an importer, pursuant to Section 320.61, Florida Statutes, or maintains a contractual relationship with a distributor which is licensed pursuant to Section 320.61. Toyota Motor Sales, U.S.A., Inc. ("Toyota"), for example, is not licensed in the state as an importer. Toyota, however, maintains a contractual relationship with Southeast Toyota, Inc., which is licensed as a distributor for the purpose of marketing motor vehicles in Florida. Hyundai Motor America ("Hyundai") is an importer of motor vehicles. Hyundai's principal place of business is 10550 Talbert Avenue, Fountain Valley, California 92728. Members of MVMA and AIAM, as well as Ford and Hyundai, have entered into and will continue to enter into dealer sales and service agreements to authorize motor vehicle dealers to sell GM vehicles at locations in Florida. Ed Morse Chevrolet of Seminole, Inc. ("Morse") is an applicant for a license as a franchised motor vehicle dealer. The application of Morse was approved after a hearing pursuant to Section 320.642, Florida Statues. Morse's facility, however, is not yet completed and it would be adversely affected by the enforcement of Proposed Rules 15C-7.004(7)(d) and Rule 15C-1.008. The portions of the proposed and existing rules challenged in this proceeding will affect the substantial interests of the parties to this proceeding. The Challenged Rules Proposed Rule 15C-7.004 was published in the Florida Administrative Weekly, Vol. 17, NO. 16, at page 1721, on April 19, 1991 (the "Proposed Rule"). The particular portions of the Proposed Rule challenged in this proceeding are hereinafter identified by the underlining in the quoted portion of the Proposed Rule. Proposed Rule 15C-7.004(4)(a) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. If the license of an existing franchised motor vehicle dealer is revoked for any reason, or surrendered, an application for a license to permit the reopening of the same dealer or a successor dealer within twelve months of the license revocation or surrender shall not be considered the establishment of an additional dealership if one of the conditions set forth in Section 320.642(5) is met by the proposed dealer. (emphasis added) Proposed Rule 15C-7.004(4)(b) provides: Application for Reopening or Successor Dealership, or for Relocation of Existing Dealership. An application for change of address by an existing dealer under this section shall be filed on form HSMV 84712, Application For Change of Location (Address) Of Dealer In Motor Vehicles, Mobile Homes or Recreational Vehicles, which is hereby adopted by reference, provided by the Department. The dealer shall indicate which provision of Section 320.642(5) Florida Statutes, if any, it contends exempts the proposed location from consideration as an additional dealership. (emphasis added) Proposed Rule 15C-7.004(7)(d) provides: (7) Hearing and Post-Hearing Procedures. (d) If the proposed additional or relocated dealership is approved construction on the dealership shall begin within 12 months of the date of the final order. The applicant must complete construction and finalize its preliminary application for license within twenty-four months of the date of the final order. This period may be extended by the Department for good cause. (emphasis added) Florida Administrative Code Rule 15C-1.008 provides: Any person who contemplates the establishment of a motor vehicle business for the purpose of selling new motor vehicles, for which a franchise from the manufacturer, distributor or importer thereof is required, shall, in advance of acquiring building and facilities necessary for such an establishment, notify the Director of the Division of Motor Vehicles of his intention to establish such motor vehicle business. Such notice shall be in the form of a preliminary filing of his application for license and shall be accompanied by a copy of any proposed franchise agreement with, or letter of intent to grant a franchise from, the manufacturer, distributor or importer, showing the make of vehicle or vehicles included in the franchise; location of the proposed business; the name or names of any other dealer or dealers in the surrounding trade areas, community or territory who are presently franchised to sell the same make or makes of motor vehicles. Upon receipt of such notice the Director shall be authorized to proceed with making the determination required by Section 320.642, Florida Statutes, and shall cause a notice to be sent to the presently licensed franchised dealers for the same make or makes of vehicles in the territory or community in which the new dealership proposes to locate, advising such dealers of the provisions of Section 320.642, Florida Statutes, and giving them and all real parties in interest an opportunity to be heard on the matters specified in that Section. Such notice need not be given to any presently licensed notice dealer who has stated in writing that he will not protest the establishment of a new dealership which will deal in the make or makes of vehicles to be included in the proposed franchise in the territory or community in which the new dealership proposes to locate. Any such statements or letters of no protest shall have been issued not more than three months before the date of filing of the preliminary application. The Director may make such further investigation and hold such hearing as he deems necessary to determine the questions specified under Section 320.642. A determination so made by the Director shall be effective as to such license for a period of twelve (12) months from the date of the Director's Order, or date of final judicial determination in the event of an appeal, unless for good cause a different period is set by the Director in his order of determination. (emphasis added) Rulemaking authority for Proposed Rule 15C-7.004 is found in Sections 320.011 and 320.27(3), Florida Statues. The law implemented by the proposed rule is found in Sections 320.27 and 320.60-320.70. Rulemaking authority for Florida Administrative Code Rule 15C-1.008 is found in Sections 320.011, 320.27(3), and 320.69. The law implemented by the existing rule is found in Sections 320.27 and 320.642.
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
