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 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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by June C. McKinney, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Polaris Sales, Inc., and Broward Motorsports of Palm Beach, LLC d/b/a Broward Motorsports to sell low-speed vehicles manufactured by Polaris Industries, Inc., (GEM) at 2300 Okeechobee Boulevard, West Palm Beach, (Palm Beach County), Florida 33409. Filed December 10, 2012 1:21 PM Division of Administrative Hearings DONE AND ORDERED this ( | day of December, 2012, in Tallahassee, Leon County, Florida. Buréati of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services i rf Hol prcembe, 2012 Naini Vinayak, Dealer Yicense Administre'" NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com Michael W. Malone Polaris Sales, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Sam Nehme Broward Motorsports of Palm Beach, LLC 4760 Sunkist Way Cooper City, Florida 33330 Marc Osheroff Broward Motorsports of Palm Beach, LLC 13600 Stirling Road Southwest Ranches, Florida 33330 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 Jonathan.butler@akerman.com June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
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 Whether Petitioner, Hassan Habibi, was subject to an unlawful employment practice by Respondent, Auto Club Group, based on his race, religion, or national origin in violation of the Florida Civil Rights Act.
Findings Of Fact The Auto Club is affiliated with the American Automobile Association (“AAA”), a national not-for-profit organization that provides its members with benefits relating to travel, emergency roadside assistance, and insurance coverage. Petitioner initiated this matter alleging that the Auto Club discriminated against him based on his race, religion, or national origin. Petitioner was born in Pakistan. He is a Muslim. On April 21, 2015, the Auto Club hired Petitioner as a temporary employee through Randstad, a third-party employee staffing firm. The Auto Club placed Petitioner in the position of a Membership Service Representative at its membership services call center in Heathrow, Florida. Generally, a Membership Service Representative is responsible for handling, processing, and resolving incoming calls from Auto Club members. Petitioner’s last day of work for the Auto Club was May 14, 2015, three and a half weeks after he began his job. Petitioner spent his first two weeks with the Auto Club in a training class learning how to properly handle and respond to service calls from Auto Club members. Petitioner’s training class consisted of approximately 15 people. His instructor was Amy Thornhill. Petitioner reported to Jeanette Wieland, Manager of the Membership Service Customer Interaction Center. At first, Petitioner sat in the back of his training classroom. However, he soon requested to relocate after he became increasingly distracted by the clicking of a pen by another trainee. Ms. Thornhill facilitated Petitioner’s request and moved him to the front of the room. She also advised the class to be respectful of the other trainees. On May 13, 2015, Petitioner was scheduled to leave the training class and begin handling live calls on the services call center floor. However, Petitioner called in sick that day and did not report to work. While he was out, Petitioner composed an e-mail for Ms. Wieland. Petitioner wrote that he believed problems that he had experienced at a job he recently held at Aon Hewitt had followed him to the Auto Club. In an attachment to his e-mail, Petitioner listed several “bizarre things” and objectionable behavior he was experiencing at the Auto Club. Petitioner believed that on either April 21 or 22, 2015, someone from Aon Hewitt had appeared at the Auto Club office and was “brainwashing” people to harass and intimidate him (the same way he was harassed at Aon Hewitt). Petitioner advised that this person might have been seeking revenge against him. Petitioner proposed that he be allowed to review the Auto Club video surveillance footage of the parking lot on April 21 and 22, 2015, with the Lake Mary Police Department, the Seminole County Sheriff’s Office, and/or Auto Club security. Petitioner believed that the video would lead to the arrest and prosecution of the perpetrators who were brainwashing Auto Club employees and had damaged his car in the Auto Club parking lot. Finally, Petitioner complained about how he was treated by several trainees in his training class including Sherry Latour, “Edgardo,” and “Judith.” Petitioner returned to work the next day on May 14, 2015. He reported to the call center floor for his first day taking live customer service calls. Unfortunately, Petitioner found his work shift extremely disconcerting. After he began handling phone calls, a man named “Terrance” sat next to him. Petitioner recounted that Terrance began loudly conversing with a nearby friend in such a disruptive and distracting manner that Petitioner could not hear the customers speaking over the telephone. Petitioner became very concerned that his quality assurance scores would decrease. Petitioner recounted that Terrence never spoke directly to him. However, Petitioner was alarmed to hear Terrance mention the e-mail that he had sent to Ms. Wieland the previous day. Terrance ignored Petitioner’s pleas for quiet. At the final hearing, Petitioner proclaimed that Terrance was intentionally placed next to him to prevent him from doing his job. Petitioner accused Ms. Wieland of deliberately using Terrance in retaliation for the complaints he raised in his May 13, 2015, e-mail. Petitioner alleged that Ms. Wieland directed Terrance to be so disruptive that Petitioner would be too scared to return to work the next day. Petitioner met with Ms. Wieland on May 14, 2015, around 5:00 p.m. during his mid-shift break. During their meeting, Petitioner repeated that he strongly believed that someone from Aon Hewitt had been brainwashing Auto Club employees to harass and intimidate him. Petitioner also complained that this person had damaged his car in the Auto Club parking lot. Petitioner again requested that he be allowed to review the Auto Club surveillance video of the parking lot to try and identify the individual. Petitioner also complained that on several occasions while he was in the Auto Club cafeteria, Edgardo and Judith threw plastic knives at his feet. Petitioner emphasized that this behavior occurred so much that Edgardo and Judith must have been acting out on purpose. Petitioner stressed that someone from Aon Hewitt was putting them up to it. Ms. Wieland advised Petitioner to go the Lake Mary Police Department if he felt threatened. In the meantime, she would check with Auto Club security regarding the surveillance videos. Ms. Wieland also requested that he let her know immediately if anything else occurred while he was working at the Auto Club. The next day, May 15, 2015, Petitioner called Randstad and explained that he had encountered several problems at the Auto Club. Consequently, he did not believe it was worth continuing his employment there. Shortly thereafter, a Randstad representative called Ms. Wieland and relayed that Petitioner did not feel safe at the Auto Club. Therefore, he would not be returning to work. On May 21, 2015, Petitioner e-mailed Ms. Wieland again. Petitioner expressed that the people who committed the “egregious acts” against him needed to be punished. Petitioner beseeched Ms. Wieland to provide him Ms. Latour’s last name so that he could file civil charges against her. Petitioner further contended that a former Randstad employee named “Victoria” may have been involved in Ms. Latour’s objectionable actions. Petitioner also indicated that two other male employees threw plastic knives and forks at his feet in the cafeteria in addition to Edgardo and Judith. Petitioner wanted these people to be punished. Finally, Petitioner declared that when he used the restroom at the Auto Club, two male employees would come into the restroom and do exactly the same thing an employee at Aon Hewitt would do. At the final hearing, Petitioner summarized the alleged discriminatory incidents that he endured during his tenure with the Auto Club to include the following: On several occasions, Petitioner encountered Ms. Latour outside the men’s restroom. Petitioner believed that she intentionally positioned herself to block his exit. Petitioner surmised that Ms. Latour was attempting to have him commit unwanted physical contact with her. On several occasions, Ms. Latour, Edgardo, and Judith stared at Petitioner while he was in the parking lot and watched him enter the office building. Ms. Latour once asked Petitioner where Edgardo and Judith were sitting on the call center floor. Ms. Latour and Ms. Thornhill held a secretive conversation of which Petitioner believed he was the subject. Edgardo did not shut the bathroom stall while he was using the restroom (just like the people at Aon Hewitt). In the Auto Club cafeteria, Edgardo and Judith dropped plastic forks and knives in front of Petitioner as he walked by. Petitioner believed that they intentionally threw the utensils at his feet to intimidate and provoke him. Petitioner believed that someone from Aon Hewitt put them up to it. An extremely noisy fan was placed next to Petitioner on the call center floor which distracted him from his customer service calls. On several occasions, a sports utility vehicle parked too close to his car in the parking lot which made opening his car door difficult. (A similar incident occurred while Petitioner worked at Aon Hewitt.) Someone scratched the bumper of his car while he was parked in the parking lot, perhaps to provoke him. Finally, Petitioner asserted that the Auto Club engaged in a “massive and elaborate effort” to cover up and conceal the discriminatory acts of Ms. Latour. Petitioner claimed that Ms. Latour was trying to blackmail or provoke him so that the Auto Club would fire him. Petitioner was also frustrated that the Auto Club would not produce video surveillance from the restroom hallway which he asserted would support his claim. Although Petitioner objected to the conduct of several individuals who worked at the Auto Club, at the final hearing, he specifically identified Ms. Latour as the only person who discriminated against him. However, Petitioner acknowledged that he never specifically complained to anyone that he was being harassed based on his race, religion, or national origin during the time he worked at the Auto Club. Neither did Petitioner ever accuse Ms. Latour, Edgardo, or Judith of discriminating against him. Petitioner never informed anyone working for the Auto Club that he was born in Pakistan. On the other hand, Petitioner did recall a conversation with one co-worker (not Ms. Latour, or Edgardo, or Judith) during which he mentioned that he was Muslim. At the final hearing, Petitioner explained that he did not realize that he was being illegally harassed until after he left the Auto Club. Petitioner asserted that Ms. Latour’s objectionable behavior must have been based on his race because he was the only person in his training class who was of Asian and Pakistani origin or a Muslim. Petitioner explained that Ms. Latour did not harass anyone else in their training class. Amy Thornhill testified at the final hearing. Ms. Thornhill stated that she had no knowledge of Petitioner’s race, religion, or national origin during the time he worked for the Auto Club. Ms. Thornhill further claimed that she never heard anyone make any comments about Petitioner’s race, religion, or national origin. Ms. Thornhill recalled that Petitioner complained about a fellow trainee who was tapping a pen during his training class. She believed that she properly addressed the situation when she allowed Petitioner to move to the front of the classroom. She also cautioned the class to be mindful of their classmates. Ms. Thornhill was aware that Ms. Latour was also in Petitioner’s training class. Ms. Thornhill testified that she never observed Ms. Latour behave inappropriately towards Petitioner. Neither did she and Ms. Latour ever discuss Petitioner’s race, religion, or national origin. Ms. Thornhill did not remember Petitioner complaining to her about discrimination or harassment. Ms. Latour, who is still employed with the Auto Club, testified at the final hearing. Ms. Latour first met Petitioner in their 2015 training class. Ms. Latour denied ever making any improper or offensive actions or comments to Petitioner. Ms. Latour denied that Edgardo or Judith encouraged her to provoke him. Ms. Latour also asserted that she did not know Petitioner’s race, religion, or national origin while he worked at the Auto Club. Ms. Latour further declared that she never blocked Petitioner’s exit from the men’s restroom. She reported that the women’s restroom is directly across the hallway from the men’s restroom and surmised that perhaps that was the reason Petitioner encountered her in the hallway. Ms. Latour also relayed that Auto Club employees routinely congregate in the hallway near the training area and the elevators. Ms. Latour denied that she participated in a conversation with Ms. Thornhill about Petitioner. Ms. Latour also rejected Petitioner’s allegation that she purposefully watched him in the parking lot. Despite the fact that Petitioner did not return to work after May 14, 2015, the Auto Club continued to investigate his complaints. Jami Mieser, a Senior Employee Relations Specialist for the Auto Club, testified at the final hearing. Ms. Mieser looked into the concerns Petitioner raised in his e-mails to Ms. Wieland in May 2015. Ms. Mieser did not find any evidence substantiating Petitioner’s claims that Auto Club and Aon Hewitt employees were intentionally provoking or discriminating against him. Ms. Mieser did not notify Petitioner of the results of her investigation in 2015. Petitioner had left the Auto Club by the time she had completed her investigation. Ms. Mieser also testified regarding the video surveillance of the Auto Club parking lot. She explained that Auto Club security only maintained the video for approximately 90 days. Therefore, the videos are no longer available to help determine whether an individual purposefully damaged Petitioner’s car in April 2015. Ms. Wieland testified at the final hearing and acknowledged that she did ask a man named Terrance to sit next to Petitioner on his first day on the call center floor. Ms. Wieland explained that she routinely places an experienced Membership Service Representative next to a trainee to assist the new employee with any issues. However, she denied instructing Terrance to disrupt Petitioner from doing his job or scare him away from the Auto Club. Ms. Wieland also stated that Petitioner never complained about Terrence during their May 14, 2015, meeting. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Auto Club discriminated against Petitioner based on his race, religion, or national origin. Accordingly, Petitioner failed to meet his burden of proving that the Auto Club discriminated against him in violation of the Florida Civil Rights Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Auto Club Service Group, did not commit an unlawful employment practice against Petitioner, Hassan Habibi, and dismiss his Petition for Relief. DONE AND ENTERED this 31st day of May, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 31st day of May, 2017.
The Issue Whether the Petitioners' proposed dealership should be approved.
Findings Of Fact On October 17, 2008, in the Florida Administrative Weekly, Volume 34, Number 42, a Notice of Publication for a New Point Franchise Motor Vehicle Dealer in a County of More than 300,000 Population was published. The notice provided that Snyder Computer Systems, Inc., d/b/a Wildfire Motors intended to allow the establishment of Beach Cycle of Fort Lauderdale, Inc., as a dealership for the sale of motorcycles manufactured by Zhejiang Summit Huawin Motorcycle Co. Ltd. (POPC) at Ravens Wood Road, Fort Lauderdale (Broward County), Florida 33312, on or after November 5, 2008. On November 12, 2008, the Respondent timely filed a protest of the establishment of the Petitioners' dealership. Respondent alleged that it currently services customers for the line-make proposed by the Petitioners and that its location is within 12.5 miles of the location proposed by the Petitioners. The evidence presented established that the Respondent's dealership is within 8.5 miles of the proposed site. Mr. McMahon 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. The Respondent has served the area for not less than 2 years and has successfully promoted the vehicles proposed to be sold by the line-make proposed by the Petitioners. The Respondent established that its sales are within 12.5 miles of the proposed dealership. The Respondent established that it currently markets the motorcycle to be sold by the proposed dealership. More specifically, the Respondent offered testimony that it has an agreement for the same line-make vehicle to be sold by the proposed dealer. Notice of the formal hearing was provided to all parties of record at their addresses of record.
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 denying the approval of the Petitioners' proposed dealership. DONE AND ENTERED this 18th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February 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 Paul J. Lane, Esquire 2755 East Oakland Park Boulevard, Suite 300 Fort Lauderdale, Florida 33306 Joel Ribler Beach Cycle of Fort Lauderdale, Inc. 2190 Southwest 31st Avenue Fort Lauderdale, Florida 33312 Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Ronald Gardner Snyder Computer Systems, Inc., d/b/a Wildfire Motors 11 Technology Way Steubenville, Ohio 43952
The Issue Whether Petitioner, Ivy Powell, was subject to an unlawful employment practice by Respondent, The Auto Club Group, based on a disability, in violation of the Florida Civil Rights Act.
Findings Of Fact The Auto Club is affiliated with the American Automobile Association (“AAA”), a national not-for-profit organization that provides its members with benefits relating to travel, emergency roadside assistance, and insurance coverage. The Auto Club hired Petitioner in March 1995, at its branch office in Melbourne, Florida. The Auto Club first employed Petitioner as a Service Clerk. Petitioner’s job changed over the years. Her last position with the Auto Club was as a Member Representative I (“MR-1”). As a MR-1, Petitioner was responsible for providing customer support services for Auto Club members. These services included greeting current and prospective members in the office, accepting members’ travel and membership payments, promoting travel and membership products, generating leads, and updating members on travel and insurance specials. Petitioner also provided travel-related services including booking car rentals, reserving hotel rooms, and preparing auto travel packages (“triptiks”). As a MR-1, Petitioner was a full-time employee in the Melbourne office. The Melbourne office was open Monday through Friday from 8:30 a.m. to 5:30 p.m. As a full-time employee, Petitioner’s normal work schedule mirrored the Melbourne office operating hours. Petitioner was allowed a one-hour lunch break. While Petitioner was employed with the Auto Club, she began to experience several medical issues. Petitioner described her conditions to include ataxia (loss of muscle control), fatigue, headaches, memory loss, and small vessel disease. Petitioner asserts that her mental and physical impairments substantially limited her major life activities including concentrating, lifting, sitting, standing, and thinking. Pertinent to her job, Petitioner explained that working longer than five hours a day caused her to become tired and lose concentration. On February 24, 2014, Petitioner presented a doctor’s note to her supervisor in the Melbourne office, Linda Hurt. The note stated, “it is medically necessary for [Petitioner] to decrease her work hours, for five hours per day, due to her medical condition.” On March 31, 2014, Petitioner produced a second note from her doctor restating her need to limit her work hours. Petitioner requested a reduced work schedule under the Family and Medical Leave Act (“FMLA”). The Auto Club granted Petitioner’s request, and beginning in February 2014, the Auto Club reduced her work hours to five hours a day. The Auto Club initially scheduled Petitioner to work from 8:30 a.m. until 1:30 p.m. In May 2014, when Petitioner had difficulty arriving to work by 8:30 a.m., the Auto Club shifted Petitioner’s work schedule to 10:00 a.m. until 3:00 p.m. On October 20, 2014, the Auto Club advised Petitioner that she would exhaust her FMLA leave in early November 2014. Therefore, she would need to provide additional documentation should she desire to continue working a shortened work day beyond the expiration of her FMLA leave. The Auto Club presented Petitioner with an Interactive Process Questionnaire which she was to have a doctor complete. By the first week of November 2014, however, Petitioner had not returned the requested paperwork. Therefore, on November 11, 2014, the Auto Club informed Petitioner that her FMLA leave had expired, and she would be expected to return to a normal, full-time work schedule. On November 13, 2014, Petitioner produced the questionnaire which her doctor had completed. In the questionnaire, her doctor restated Petitioner’s need to continue to work a reduced work schedule, indefinitely, and that her restrictions were permanent. Petitioner’s doctor wrote that Petitioner “is temporarily totally disabled” and “only able to work a maximum of five hours per day to prevent an exacerbation of symptoms.” After the Auto Club received Petitioner’s paperwork, it allowed Petitioner to remain on a shortened work schedule while it evaluated her request to continue working five hours a day. As more fully detailed below, the Auto Club determined that it could not indefinitely accommodate Petitioner’s part-time work schedule. The Melbourne office’s operation needs required full-time MR-1 employees. (The Melbourne office did not employ any part-time positions.) Therefore, the Auto Club explored options to offer Petitioner to accommodate her request for a reduced work schedule. In particular, the Auto Club reviewed its workforce to determine whether any part-time positions were open within 50 miles of Respondent’s residence. On December 4, 2014, Petitioner met with Linda Hurt to discuss the status of her employment. Brenda Slupecki, the Auto Club’s Employee Relations Manager, participated in the meeting by phone. During this meeting, Ms. Slupecki explained to Petitioner that her MR-1 position was a full-time position. Therefore, the Auto Club needed an employee in her position to work full-time. Ms. Slupecki further informed Petitioner that the Auto Club’s Melbourne office could not accommodate her request to work a part-time schedule indefinitely. The Auto Club then placed Petitioner on a 90-day disability leave of absence. Ms. Slupecki suggested that Petitioner look for part-time positions within the Auto Club offices in Tampa and Heathrow, Florida. Petitioner’s last day of paid employment in the Auto Club’s Melbourne office was December 5, 2014. However, the Auto Club continued to provide Petitioner employee benefits (such as health insurance) until her official termination in May 2015. After the December 2014 meeting, following a suggestion from Ms. Slupecki, Petitioner applied for short-term disability benefits from the Auto Club’s insurance company, Hartford Life and Accident Insurance Company (“Hartford”). Petitioner’s claim was denied. On March 9, 2015, Ms. Slupecki sent Petitioner a letter advising her that her 90-day disability leave of absence had expired. Consequently, the Auto Club placed Petitioner in a 30-day layoff status. The Auto Club, once again, suggested Petitioner apply for other jobs within the company. Ms. Slupecki cautioned Petitioner that the Auto Club would terminate her employment at the end of the 30-day period if she was not able to obtain another position. Petitioner did not apply for any other jobs within the Auto Club. On March 12, 2015, Petitioner appealed the denial of her claim for short-term disability to Hartford. On March 26, 2015, Hartford informed Petitioner that her appeal was not timely, and her claim would remain closed. On March 30, 2015, Ms. Slupecki sent a letter to Petitioner advising her that the 30-day layoff period would restart following Petitioner’s unsuccessful appeal to Hartford. The Auto Club once again encouraged Petitioner to search for a part-time job within the Auto Club. Petitioner did not attempt to find another position within the company. Petitioner’s 30-day layoff period ended on April 30, 2015. The Auto Club officially terminated Petitioner’s employment on May 1, 2015. The specific accommodation Petitioner requested from the Auto Club was to be allowed to work a part-time schedule of five hours a day, five days a week, for an indefinite period of time. At the final hearing, Petitioner testified that the Auto Club could not offer her any other accommodation that would have allowed her to work full-time in her MR-1 position. At the final hearing, Petitioner expressed that she was a good performer for the Auto Club, and her customer surveys showed no drop in customer satisfaction during the time she worked shortened hours. She strove to complete all her tasks every day before she left work. She believed that she could perform all the functions of her MR-1 position except working eight hours a day. Petitioner also asserted that her requested accommodation would not impose an undue hardship on the Auto Club. Petitioner suggested that the Auto Club could hire a part- time employee to cover her MR-1 duties during the hours she is absent from the office. Petitioner commented that, with revenue at more than a billion dollars a year and tens of thousands of employees, the Auto Club would not be unreasonably burdened by hiring another employee to supplement her job at the Melbourne office. Petitioner explained that she did not accept a part- time position at another Auto Club office because the nearest potential vacancy (Lake Mary, Florida) was more than 50 miles from her home. She would have been required to drive at least an hour to and from this location. Adding the commute time to a part-time job would have defeated the purpose of her restricted, five-hour workday. In response to Petitioner’s claim, the Auto Club argues that creating a permanent, part-time position just so Petitioner can work five hours a day is not reasonable. Moreover, even if it was reasonable, accommodating this request would place an undue hardship on the Auto Club. Based on its goal of consistent and expedient customer service, the Auto Club asserts that working a full-time schedule is an essential function of the MR-1. Ms. Hurt became Field Manager of the Auto Club’s Melbourne office in January 2014. In her role, she oversaw the day-to-day operations of her office. She also supervised Petitioner. Ms. Hurt testified that the Melbourne office employed approximately 15 people. Three of these employees (including Petitioner) filled the position of MR-1. Ms. Hurt relayed that all employees of the Melbourne office worked full-time and were required to work during the office’s regular hours of 8:30 a.m. through 5:30 p.m. Ms. Hurt explained that, as a “front-facing” employee, the MR-1 is the Auto Club representative who welcomes customers into the business. Ms. Hurt expressed that the Melbourne office experiences a lot of “foot traffic.” It is a small office, but very busy. Ms. Hurt conveyed that the staffing needs of her office require full-time employees in each position to interact will all customers who enter the office during business hours. Ms. Hurt further asserted that the Melbourne office did not operate efficiently in Petitioner’s absence. Petitioner’s reduced work schedule caused the office to be short-staffed from 8:30 a.m. until 10 a.m. and from 3:00 p.m. until 5:30 p.m. The office was not able to complete all of the work that needed to be accomplished during business hours. Neither was it able to provide timely service to its customers. Ms. Hurt remarked that developing customer relationships is paramount to the Auto Club’s business. The Auto Club desires its offices to service customers as expeditiously as possible. The MR-1 position is designed to cultivate long-term relationships with customers by providing consistent and continuous service. Ms. Hurt recounted that in 2014, she was aware of several customers who became aggravated due to increased wait times and left the Melbourne office without meeting with any Auto Club representative. Ms. Hurt also testified that a direct consequence of having one of her three MR-1 employees working part-time was that her office did not meet its 2014 budget projections. In particular, the Motor Club, which was the specific section in which Petitioner worked, produced lower income. Ms. Hurt relayed that Petitioner’s shortened work schedule also negatively impacted the other two MR-1 employees. The remaining MR-1s were obligated to meet with all customers who arrived at the Melbourne office outside of Petitioner’s five-hour work schedule. In addition to their own workload, they were forced to divide up and complete Petitioner’s duties. For example, because Petitioner could not work past 3:00 p.m., any customer with whom she was working was transferred to another MR-1. This situation prevented the continuity of service that the Auto Club strove for as an organization. The other two MR-1s also experienced increased overtime and reduced lunch breaks due to Petitioner’s truncated work schedule. Ms. Hurt explained that the overtime the MR-1 employees worked in 2014 nearly tripled. The Melbourne office was budgeted $3,300 for overtime costs that year. However, the office’s actual overtime expense in 2014 equaled approximately $9,600. In addition, the other MR-1s were not able to attend certain training sessions or use all of their paid vacation leave in 2014. Ms. Hurt also relayed that, at one point, one MR-1 volunteered to return early from medical leave because the office could not provide adequate service for all its customers due to Petitioner’s limited availability. Ms. Slupecki testified that, based on the Auto Club’s business model, hiring a part-time employee to fill in during the work hours Petitioner missed would not be an efficient or practical option to best serve Auto Club customers. The MR-1 position requires specific experience, knowledge, and training. Ms. Slupecki did not believe that a part-time employee would be able to master the skills or obtain the required expertise required of a MR-1. Furthermore, a part-time MR-1 would not provide the expected level or continuity of customer service the Auto Club desires. Ms. Slupecki imparted that the Auto Club employs only full-time MR-1s in all of its branch offices. Based on the competent substantial evidence presented at the final hearing, the preponderance of the evidence in the record does not establish that the Auto Club discriminated against Petitioner based on a disability. Accordingly, Petitioner failed to meet her burden of proving that the Auto Club discriminated against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Ivy Powell, did not prove that Respondent, the Auto Club, committed an unlawful employment practice against her and dismiss her Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 20th day of April, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 20th day of April, 2017.
The Issue The issue is whether Petitioners are entitled to a proposed motor vehicle dealership in Seminole County, Florida.
Findings Of Fact DOAH provided the parties with adequate notice of the final hearing. On December 3, 2008, DOAH mailed a Notice of Hearing to each of the parties, scheduling the final hearing for April 8, 2009. No Notice was returned as undelivered. No party objected to a final hearing on April 8, 2009. On December 3, 2008, DOAH also issued an Order of Pre- hearing Instructions that, in relevant part, required the parties to file a pre-hearing stipulation, which was to include a list of witnesses and exhibits to be called and submitted at the final hearing. No party complied with the Order. The documents forwarded to DOAH by the Department support the findings. The Notice of Publication for a New Point Franchise Motor Vehicle Dealer in a County of More than 300,000 Population was published in the Florida Administrative Weekly, Volume 34, Number 43, on October 24, 2008. On behalf of Respondent, Mr. James Sursely timely filed a protest letter dated November 7, 2008, with Ms. Nalini Vinayak, the administrator at the Department responsible for receiving such protests. The remaining facts are undisputed in this proceeding. The proposed new point franchise motor vehicle dealer is for a line-make identified in the record as Chongqing Lifan Industry Group Co. Ltd. (CHOL) motorcycles. The proposed location is in Seminole County, Florida. Seminole County has a population in excess of 300,000. The proposed new point franchise motor vehicle dealer is located at 3311 West Lake Mary Boulevard, Lake Mary, Florida. Respondent owns and operates an existing CHOL dealership that is located at 306 West Main Street, Apopka, Orange, County, Florida 32712. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership. The petitioners submitted no evidence that Respondent is "not providing adequate representation" of the same line-make motor vehicles in the community or territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying the establishment of the proposed franchise dealership. DONE AND ENTERED this 23rd day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 2009.
The Issue The issue is whether Petitioner's applications to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN), should be granted. PRELIMANARY STATEMENT In the Florida Administrative Weekly, Volume 34, Number 21, May 23, 2008, the Department of Highway Safety and Motor Vehicles (DHSMV) published two Notices of Publication for a New Point Franchise Motor Vehicle Dealer in a County of Less than 300,000 Population. Said notices advised that Petitioner Gator Moto, LLC and Gator Moto, LLC (Petitioner) intended to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN). On or about June 3, 2008, Respondent Austin Global Enterprises, LLC, d/b/a New Scooters 4 Less (Respondent) filed two complaints with DHSMV about the proposed new motorcycle dealerships. DHSMV referred both complaints to the Division of Administrative Hearings on June 10, 2008. On July 2, 2008, Respondent filed its Compliance with Initial Order. On July 7, 2008, Petitioner filed Petitioner's Compliance with Initial Order Division of Administrative Hearings (DOAH) Case Nos. 08-2735 and 08-2736. This is the only communication that DOAH has received from Petitioner. On July 23, 2008, Administrative Law Judge Barbara J. Staros entered an Order of Consolidation for DOAH Case Nos. 08-2735 and 08-2736. On July 24, 2008, Judge Staros issued a Notice of Hearing, scheduling a final hearing on December 4, 2008. On November 26, 2008, Respondent filed its Compliance with Pre-hearing Instructions. Petitioner did not respond to the Order of Pre-hearing Instructions. On December 1, 2008, Judge Staros issued an Amended Notice of Hearing. The amended notice only changed the commencement time for the hearing. DOAH subsequently transferred these consolidated cases to the undersigned. On the morning of the December 4, 2008, hearing, DHSMV advised the undersigned's office that DHSMV had failed to arrange for the appearance of a court reporter at the hearing. Accordingly, the undersigned issued an Order Granting Continuance and requiring the parties to confer and provide DOAH with mutually-agreeable dates for re-scheduling the hearing. On December 17, 2008, Respondent filed its unilateral Compliance with Order Granting Continuance. Respondent filed this pleading after an unsuccessful attempt to confer with Petitioner. On December 18, 2008, the undersigned issued a Notice of Hearing and Order of Pre-hearing Instruction. The notice scheduled the hearing for February 9, 2008. On February 3, 2007, Respondent filed its unilateral Compliance with Order of Pre-hearing Instructions. Petitioner did not file a response to the Order of Pre-hearing Instructions. When the hearing commenced, Petitioner did not make an appearance. Respondent made an appearance and presented the testimony of Colin Austin, Respondent's Managing Member. Respondent did not offer any exhibits. The hearing transcript was not filed with DOAH. Neither party filed proposed findings of fact and conclusions of law.
Findings Of Fact Respondent has standing to protest Petitioner's applications pursuant to Section 320.642(3)(a)2., Florida Statutes (2008). According to DHSMV's published notice, Petitioner intended to establish two new motorcycle dealerships at 2106 Northwest 67th Place, Suite 15, Gainesville, Florida, on or after May 9, 2008. This location is only 4.5 miles from Respondent's place of business. At some point in time, Petitioner relocated its business to 7065 Northwest 22nd Street, Suite A, Gainesville, Florida. This location is only 5.3 miles from Respondent's place of business. Petitioner's application indicated that Petitioner intended to establish itself as a dealer of SHEN and JMSTAR motorcycles. Currently, Respondent sells those motorcycles under License No. VF/1020597/1. Respondent currently supplies itself with SHEN and JMSTAR products from a United States distributor. Respondent has a good faith belief that Petitioner intends to import the motorcycles and related products directly from the Chinese manufacturers. In that case, Petitioner would be able to sell the products at a lower price than Respondent and thereby deny Respondent the opportunity for reasonable growth. Petitioner did not notify DOAH about a change of address. DOAH's notices and orders directed to Petitioner at its address of record have not been returned. Petitioner has not communicated with DOAH since filing a response to the Initial Order. Petitioner did not make an appearance at the hearing. Apparently, Petitioner has abandoned its applications to establish the new dealerships.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's applications. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Collin Austin Austin Global Enterprise, LLC 118 Northwest 14th Avenue, Suite D Gainesville, Florida 32601 Justin Jackrel Gator Moto, LLC 4337 Northwest 35th Terrace Gainesville, Florida 32605 Justin Jackrel Gator Moto, LLC 2106 Northwest 67th Place, Suite 15 Gainesville, Florida 32653 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue is whether Petitioners 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
