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 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 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 Highway Safety and Motor Vehicles enter a final order denying the establishment of Petitioners' proposed franchise. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009. COPIES FURNISHED: Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkland Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Gloria Ma El Sol Trading, Inc., d/b/a Motobravo, Inc. 19877 Quiroz Court City of Industry, California 91789 Tina Wilson TGT Companies, Inc., d/b/a Extreme Motor Sales 1918 South Orange Blossom Trail Apopka, Florida 32703
The Issue The issues in this case are whether Petitioner has standing to protest the establishment of an additional autocycle dealership; and, if so, whether Petitioner is adequately representing this line of vehicles in the relevant territory or community pursuant to section 320.642, Florida Statutes (2019).1/
Findings Of Fact iMotorsports is located in Pinellas County. No evidence was provided regarding its address or location. The parties stipulated, however, that iMotorsports is located 45.9 miles from Gables Motorsports, and is outside of a 12.5 mile radius of the proposed dealership, Gables Motorsports. Gables Motorsports is located in Pasco County, Florida at 28009 Wesley Chapel Boulevard, Wesley Chapel, Florida 33543. According to the U.S. Census Bureau and University of Florida, Bureau of Economic Research, the population of Pasco County, Florida, was 464,697 as of April 1, 2010. The estimated population as of April 1, 2018, for this same area was 515,077. Vanderhall manufactures "autocycles" or two-passenger, three-wheeled motor vehicles and sells them nationally. At the time of the hearing there were eight to ten dealerships distributing the Vanderhall autocycles in Florida, and there were 55 Vanderhall dealerships or distributors nationwide. In these proceedings, Vanderhall seeks to allow Gables Motorsports to serve as a dealership to sell and service the Vanderhall autocycles. Although no franchise agreement was offered into evidence, based on Mr. Saba's testimony, the undersigned finds in June or July 2018, iMotorsports entered into an agreement with Vanderhall to sell its autocycles. According to the documentation offered by Vanderhall, iMotorsports has sold 15 Vanderhall autocycles since it became a Vanderhall dealership, approximately 14 months ago. None of those sales were to households within a 12.5 mile radius of the proposed dealership at Gables Motorsports. Mr. Saba agreed iMotorsports had not had any sales to households in the 12.5 mile radius around Gables Motorsports, but argued at the hearing that verbal promises were made by Vanderhall that it would not establish any other Vanderhall dealerships in Florida. Ultimate Findings Regarding Standing iMotorsports is an existing dealership that sells Vanderhall autocycles. iMotorsports is not within a 12.5 mile radius of the proposed dealership at Gables Motorsports. iMotorsports has failed to establish that during the 12-month period preceding the filing of the application for the proposed dealership by Gables Motorsports and Vanderhall, iMotorsports or its predecessor made 25 percent of its retail sales of the Vanderhall autocycles to registered household addresses within a 12.5 mile radius of Gables Motorsports. Therefore, iMotorsports does not have standing to bring this challenge pursuant to section 320.642(3).
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 finding iMotorsports lacks standing, and dismissing iMotorsports' challenge of the Respondents' new dealership application for the sale of Vanderhall vehicles at Gables Motorsports. DONE AND ENTERED this 10th day of December, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2019.
The Issue The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Melbourne, Florida.
Findings Of Fact Respondent is an existing franchised dealer of motorcycles manufactured by ZHNG. 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 234 Highway A1A, Satellite Beach, Florida 32937. Petitioners' proposed dealership would be located at 6370 North Highway US 1, Melbourne Florida 32940. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Satellite Beach and Melbourne are both in Brevard County. Petitioners admitted that they did not provide the name of Respondent's business to the Department for purposes of notifying the existing dealer of Petitioner's intent to establish a new dealership of the same line-make. For this reason, Respondent never received the standard letter of notice from the Department. Respondent filed its petition as soon as its ownership learned of the proposed new ZHNG dealership. Orestes Nunez, principal owner of House of Scooters, testified that he had no way of knowing the names of every dealer that is selling the ZHNG line-make because the scooters are brought into this country by four different importers and sold under different names. None of the scooters are marketed under the name "ZHNG." Mr. Nunez' proposed dealership would sell the scooters under the name "Italica," whereas other dealers sell the ZHNG scooter under other names. Mr. Nunez testified that he was able to provide the Department the names of other "Italica" dealers, but could not provide the names of every dealer selling ZHNG scooters. Petitioners conceded that they could not establish that Respondent is not providing adequate representation of the ZHNG line-make within the territory at issue. Petitioners' only basis for disputing the protest was that it was not timely filed. Under all the circumstances, it is found that Respondent's protest was timely filed and that Respondent has standing to protest the establishment of the proposed dealership.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order denying the establishment of Petitioners' proposed franchise. DONE AND ENTERED this 8th day of April, 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 8th day of April, 2009. COPIES FURNISHED: Electra Theodorides-Bustle, Executive Director Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Adriana De Lima Italica Motors, Inc. 5001 Southwest 135 Avenue Miramar, Florida 33027 Greg G. Shonk Loon’s Lagoon, LLC 234 Highway A1A Satellite Beach, Florida 32937 Orestes Nunez Orestes Nunez, d/b/a House of Scooters 6370 North Highway US 1 Melbourne, Florida 32940 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344
The Issue Whether Dadeland Dodge, Inc. (Dadeland) should be permitted to relocate a motor vehicle dealership from 8455 South Dixie Highway, Miami, Dade County, Florida, to a proposed location at 16501 South Dixie Highway, Miami, Florida.
Findings Of Fact Chrysler manufacturers Dodge automobiles and trucks which are sold by a network of motor vehicle dealerships. In Florida, such dealerships are governed by the provisions of Chapter 320, Florida Statutes. Dadeland and Spitzer are dealerships selling Dodge motor vehicles in Dade County, Florida. There are five Dodge dealers in the community or territory, all of which are within Dade County. Three of the dealers are located north of the existing Dadeland site: Maroone Dodge is near the Broward County line at a point which sells into Broward; Potamkin Dodge North is in North Miami, and Potamkin Dodge is in Hialeah. Dadeland is currently located at 8455 South Dixie Highway (U.S. 1), Miami, Florida. It seeks to relocate its place of business to 16501 South Dixie Highway, Miami. Spitzer is also located on South Dixie Highway just north of Homestead, Florida. Its current location is 17.3 miles south of the existing Dadeland dealership and 11.5 miles south of the proposed Dadeland location. The criteria applicable to this case are found in Section 320.642, Florida Statutes. Such provision requires a determination of whether there is adequate representation in the community or territory. The term "community or territory" is not defined by law. In this case, the community or territory is the area used by the manufacturer to define the dealers' trading zones. Geographically the community or territory includes all of Dade County and small portions of Broward and Monroe Counties. In determining whether Chrysler has adequate representation in the community or territory, sales data was compiled for all new motor vehicle sales registered within the geographic area defined as the community or territory. Such data was for 1994 and 1995 years with projections calculated based upon actual past performance. The automobile industry classifies motor vehicles in segments lumping cars with cars and trucks with trucks. Typically, segments are designated or defined by companies such as R.L. Polk which tracks new vehicle sales. The segments group vehicles which presumably compete against one another for buyers. Dodge does not compete in all car segments. For example, it has no vehicle which is classified as mini-subcompact. Similarly, trucks are also classified into segments. Dodge competes in five of the manufacturers' ten segments. In this case, Dodge sales in the community or territory (Comm/Terr) have been compared to Dodge sales in the nation as a whole. In order to account for the buying preferences of the community or territory, the Dodge sales for this community or territory have been adjusted to consider the segment preferences of the Dade Comm/Terr buyers. In computing these projections all sales, foreign and domestic, have been considered. Chrysler does not distinguish between imports and domestics because all vehicles within the segments compete against the Chrysler entry in the segment. While some entries may, by historical buying pattern, have proved more successful, Dodge registers sales in all segments in which it competes. In some instances Dodge has competed well. For example, Chrysler was the originator of the minivan, both domestics and import manufacturers have introduced vehicles to compete in those segments. Customers looking for a vehicle in the minivan segment are going to look for the best minivan they can find, regardless of whether an import or domestic. By comparing Dodge's sales penetration in each vehicle segment in the nation with the industry available in each segment in the community or territory, an appropriate standard is established to determine whether this area is receiving adequate representation. Measuring penetration within each segment takes into account differences in consumer preferences between the two areas without regard to brand. Utilizing this segment analysis, the reasonably expected market share for Dodge in the Comm/Terr is 5.89% of retail industry for cars and trucks. Dodge penetration in the community or territory has been below expected levels in 1994 and 1995. Dodge penetration compared with its expected share (utilizing the national average area as a standard and adjusted for local segment preferences) was between 51.35% and 59.69% effective. On the basis of the net shortfall in units, or number of vehicles which, at the minimum, would be required to be registered in order to bring the community or territory up to the expected performance, the 1994 shortfall was 1075 units, and in 1995 was 907 units. Even using a Florida sales average (as opposed to the national average) as a standard for measuring whether Dodge is receiving adequate representation in this Comm/Terr, the performance of the Dodge network in this community or territory falls short. Based upon the foregoing it is concluded that Dodge has lost sales opportunity in the community or territory and that the network of Dodge dealers within this Comm/Terr have failed to adequately represent Chrysler. The community or territory has experienced growth in population, driving age population, and households during the last ten years. This growth is expected to continue. Employment has also grown and corresponds to a predominance of census traits reflecting average household incomes of over $25,000. Presumably such households represent potential new vehicle buyers. Total industry car and truck registrations in the community or territory have grown from 108,483 in 1993 to 112,767 in 1995. Spitzer sales increased in the aftermath of Hurricane Andrew and have continued to increase. Spitzer's sales history is as follows: 369 (1991); 527 (1992); 506 (1993); 567 (1994); and 644 (1995). 24. Since 1980, the number of Dodge dealers in the community or territory has decreased by one. Thus, it is important to assure that the remaining Dodge dealerships are appropriately located to serve the car buying population of the market. The importance of the number of dealers also relates to Dodge's major competitors in Dade. Six different brands have more than five points: Ford(10); Chevrolet (7); Honda (7); Chrysler-Plymouth (6); Jeep-Eagle (6); and Toyota (6). There are five dealerships within the Comm/Terr for Lincoln-Mercury, Pontiac, Nissan, and Mazda. The current Dadeland facility is a small facility with no room to expand. Other dealerships in the area offer modern, large facilities. The current Dadeland facility has no enclosed showroom with a very small sales area. The current Dadeland facility is leased by its owner to Chrysler Realty, which in turn leases it to Dadeland. The lease on this real property expires in 1997. Chrysler Realty has no right to renew it. Despite searching for land since 1992, Chrysler Realty has not been able to locate any land within two miles of the existing Dadeland dealership upon which this dealer could relocate. Although the most preferable relocation of Dadeland would move the dealership to the west, there is no site available for use as an automobile dealership in that area either. Other competitive dealerships are located south of the existing Dadeland location along U.S. 1. If Chrysler is not able to relocate Dadeland and were to lose the point, the reduction of the dealerships by one would have an adverse impact on competition, the consumer, and on dealer sales by leaving a void in an interconnected market. Dadeland proposes to relocate from its current location at the extreme far north end of the Dadeland auto cluster, into the center of an auto cluster on U.S. 1, in the immediate vicinity of many other dealerships. The auto cluster in which Spitzer is located in Homestead contains most of the same franchises which are in the auto cluster into which Dadeland proposes to relocate. Many of the same line-make dealerships, located in both clusters, are closer to one another, or about as close, as would be Dadeland and Spitzer if the relocation is permitted. The proximity of intra-brand competition promotes same line-make competition which in turn, makes strong inter-brand competitors out of both dealers. Close proximity is, generally, a positive factor for both dealerships. The pattern of Spitzer's sales, which extend in a broad pattern, suggests that Spitzer does and will continue to, make sales in close proximity to other Dodge dealers in the Comm/Terr, especially Dadeland. Spitzer penetrates the market within two miles of its dealership at a rate of 4.9%. This level of penetration falls below the national average and indicates that there is additional sales opportunity to Spitzer within two miles of its dealership. While Spitzer maintains a higher level of penetration within a six-mile radius of its dealership, its share drops after that. Whether at the distance of the proposed Dadeland relocation or where it is now, Spitzer's sales penetration in those areas is low. The relocation of the Dadeland dealership will likely benefit consumers and the public interest. It will provide the growing population of the community or territory with a more convenient place to shop for Dodges in close proximity to the other dealerships where they shop for other brands. Because of the untapped opportunity for Dodge in the community or territory, and depending on Spitzer's response to the competition, ample opportunity exists for both dealers to increase sales by capitalizing on the available sales opportunity in the area. If the relocated Dadeland dealership performs in the future in a similar manner to the way in which it is currently performing at its current location, there should be no adverse impact on the existing dealers, including Spitzer. Dealers are accustomed to the cyclical nature of the automobile business. Sales go up and down through the cycle. Any number of factors could contribute to an individual dealer's sales going up or down. Dealers make adjustments in the operation of their businesses in order to maximize their profits. Within the industry cycle, there are also shifts in the dealers' business between new and used car sales. If new cars are not popular in a down cycle, used cars become far more popular. When buyers don't have the money to buy new vehicles, they will look at used ones. Typically, when the new car business is down, the used car business will be up and service business will be up. Consequently, a dealership's profit should not correlate solely with new car sales. All of Spitzer's estimations of lost new vehicle sales, and the lost profits resulting from those lost sales, were based upon the premise that Spitzer (and the other Dodge dealers) can compete only in the domestic industry market. The persuasive evidence presented in this cause does not support that premise. Accordingly, Spitzer's sales and economic loss estimates are rejected. The Spitzer facility is adequate to serve the Homestead area and to sell into the community or territory as a whole. Spitzer should continue to increase its sales and receive a return on its investment in the facility. Chrysler is attempting to relocate Dadeland in order to promote the existing dealer network as opposed to seeking a new point to address lost market opportunity. Chrysler Realty has executed an agreement with Dadeland which provides that Chrysler Realty will build a new facility for Dadeland on property that it has purchased. All of the costs for that facility, including the purchase price of the land and all costs incurred in the construction of the building, including surveys, impact fees, architect and engineering costs will form the basis for a monthly rental amount. Chrysler Realty's return on the total amount is fixed at eleven percent. All dealerships who rent from Chrysler Realty, including one owned by Spitzer in Ohio, pay rent in accordance with the uniform policy and computation proposed for this relocation. There is no evidence that Chrysler has denied its existing dealers opportunities for growth. There is no evidence that Chrysler coerced its existing dealers to consent to the proposed relocation. Spitzer achieved its minimum sales responsibility for 1995; therefore, there is no evidence that Spitzer is not in compliance with its dealer agreement with Chrysler.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered granting Dadeland's request to relocate its dealership. DONE AND ENTERED this 8th day of April, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1997. APPENDIX At the conclusion of the hearing, the parties stipulated to September 30, 1996, as the deadline for filing proposed recommended orders. This date was presumably selected to secure rulings on the proposed findings of fact. While the parties later waived that opportunity and agreed to submit their proposed orders on October 2, 1996, specific rulings are included below where citation to the record was noted by the party. Where no citation was listed, the proposed finding of fact is rejected unless otherwise stated in the findings of fact above. Rulings on the proposed findings of fact submitted by Chrysler: 1. Paragraphs 1 through 3, 5, 6, 12, 13, 16, 17, 18, 23, 24, 25, 26 through 30, 31, 55, 56, 57, 63, 65, 71, 72, 74, 75, 76, 78, 79, 80, 81, 85, 86, 87, 88, 90, 91, 92, 93, 94, 97, 98, 100, 101, 102, 103, 108, 109, 110, 111, 112, 113, 117, 136, 137, 138, 139 and 140 are accepted. Paragraph 4 is rejected as argument or comment of law. Paragraphs 8 through 11 are rejected as irrelevant. Paragraphs 14 and 15 are rejected as comment of law or argument. Paragraphs 19 through 21 are rejected as unnecessary or irrelevant. Paragraph 22 is accepted with the deletion of the word "very" before "conservative" which is contrary to the weight of credible evidence or not defined adequately in the record. Paragraphs 32 through 54 are rejected as argument or comment on the evidence unnecessary to the conclusions reached. Paragraphs 58 through 62 are rejected as argument or comment on the evidence unnecessary to the conclusions reached. Paragraph 64 is rejected as unnecessary to the conclusion reached. Paragraphs 66 through 70 are rejected as comment or argument not necessary to conclusions reached. Paragraph 73 is comment on the evidence. The relocation of the dealership is justified because it can't continue where it is; and, in terms of economic and other conditions, it would be damaging to the Dodge product sales which is already inadequately represented in the Comm/Terr. Paragraph 77 is rejected as comment and unnecessary. 13 Paragraphs 82 through 84 are rejected as irrelevant or unnecessary. Paragraphs 89 is rejected as irrelevant. Paragraphs 95 and 96 are rejected as argument. Paragraph 99 is rejected as argument. Paragraphs 104 through 107 are rejected as unnecessary. Paragraphs 114 through 116 are rejected as unnecessary. Paragraph 118 is rejected as comment or speculation unnecessary to the conclusions reached herein. Paragraphs 119 through 135 are unnecessary and comment on the evidence more in the form of argument than fact. To the extent findings have been made which support Chrysler's argument, such findings are accepted. Paragraph 138 is comment and the editorial quality of its statement is rejected as argumentative. Rulings on the proposed findings of fact submitted by Spitzer: 1. Paragraphs 1 through 5, 7, 10, 13, 14, 16, 17, 18, 21, 25, 28, 29, 30, 64, 65, 66, 67, 68, 73, 75 through 80, 87, 91 are accepted. Paragraphs 6, 8, 9 and 11 are rejected as contrary to the weight of the persuasive evidence. Paragraphs 12 is rejected in that it considers only geographic proximity as an impacting factor and ignores dealer performance opportunities and the opportunity for additional sales in the Comm/Terr. Paragraph 15 is rejected as it ignores the opportunity for new sales in the Comm/Terr which should offset adverse effects, if any. With regard to paragraph 16, it is accepted that the optimal location for the relocation would be north and west of the proposed site, however, no such site is available. Therefore, references to such site are rejected as irrelevant albeit factually correct. Paragraph 18 is rejected as irrelevant; Dadeland will have to future sales at its current location. Paragraphs 19, 20, 22, 23, 24, 26 and 27 are rejected as irrelevant, contrary to the weight of persuasive evidence, or argument. With regard to paragraph 31, with the addition of "and west" such paragraph is accepted as factually accurate but ultimately irrelevant. Paragraphs 32 through 47 are rejected in their conclusions as contrary to the weight of persuasive evidence. Paragraphs 48 through 63 are rejected as argument, comment on evidence or contrary to the weight of persuasive evidence. Paragraphs 69 through 72 are rejected as contrary to the weight of the credible evidence. Paragraphs 74 through 86 are rejected as comment, argument, irrelevant or contrary to the weight of the persuasive evidence. Paragraphs 88 and 90, 92, 93, and 94 are rejected as comment, incomplete, or contrary to the weight of the evidence. COPIES FURNISHED: Dean Bunch, Esquire Sutherland, Asbill & Brennan, L.L.P. 909 East Park Avenue Tallahassee, Florida 32301 Daniel E. Myers, Esquire Walter E. Forehand, Esquire Robert A. Bass, Esquire Myers, Forehand & Fuller 402 North Office Plaza Drive Tallahassee, Florida 32301 Charles J. Brantley, Director Division of Motor Vehicles Room B439, Neil Kirkman Building Tallahassee, Florida 32399-0500 Michael J. Alderman, Esquire Division of Motor Vehicles Room A432, Neil Kirkman Building Tallahassee, Florida 32399-0500
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 in this cause is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Santa Rosa Beach, Florida.
Findings Of Fact On December 3, 2010, 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 15 minutes, 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 Santa Rosa Beach, Florida. Absent such evidence, the establishment of the proposed dealership should be denied.
Recommendation Based on 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 15th day of April, 2011, 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 15th day of April, 2011. COPIES FURNISHED: Dan Rhoad Ruff and Tuff Electric Vehicles, Inc. 1 Ruff Tuff Drive Winnsboro, South Carolina 29180 Thomas B. Waldrop Electric Cart Company, LLC 5480 US Highway 98 West Santa Rosa Beach, Florida 32459 Rachel Miller Hampton Ruff and Tuff, Inc. 230 South West Hollywood Boulevard Fort Walton Beach, Florida 32548 Steve Hurm, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room B-439 Tallahassee, Florida 32399-0500
The Issue The issue in the case is whether an application for a motor vehicle dealer license filed by Lambretta International, LLC, and Retro Unlimited, Inc., should be approved.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the application for establishment of the motor vehicle dealer franchise at issue in this case. DONE AND ENTERED this 26th day of August, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 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 Caroline Khurana Lambretta International, LLC 14339 Lake City Way Northeast Seattle, Washington 98125 Chris Densmore Scooter Escapes, LLC, d/b/a Scooter Escapes 1450 1st Avenue North St. Petersburg, Florida 33705 Edward G. Dreyer, III Retro Unlimited, Inc. 3200 Dr. Martin Luther King, Jr. Street North St. Petersburg, Florida 33704 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
