15-002334 Action Nissan, Inc., D/B/A Universal Hyundai vs. Hyundai Motor America And Hyundai Of Central Florida, Llc, D/B/A Hyundai Of Central Florida Status: Closed Recommended Order on Thursday, January 7, 2016.

Summary: Petitioner failed to establish standing to protest proposed additional Hyundai dealer in Clermont; Department's method of determining county population satisfies statutory criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ACTION NISSAN, INC., d/b/a

UNIVERSAL HYUNDAI,

Petitioner,

vs. Case No. 15 - 2334

HYUNDAI MOTOR AMERICA AND

HYUNDAI OF CENTRAL FLORIDA,

LLC, d/b/a HYUNDAI OF

CENTRAL FLORIDA,

Respondent s .

/

RECOMMENDED ORDER

Pursuant to notice , a f ormal hearing was held in this case

on the limited issue of PetitionerÓs standing on December 8

and 9 , 2015, before Lawrence P. Stevenson, a duly - designated

Administrative Law Jud ge, in Tallahassee , Florida .

APPEARANCES

For Petitioner: Kenneth L. Paretti , Esquire

A. Edward Quinton, III , Esquire

Quinton and Paretti, P.A.

80 S outh w est Eigh th Street, Suite 2150

Miami , Florida 3 3130

For Respondent: J. Andrew Bertron, Esquire

Hyundai Motor C. Everett Boyd, Esquire

America Nelson, Mullins, Riley and

Scarborough, LLP

Suite 202

3600 South Maclay Boulevard South

Tallahassee , Florida 3 2312 - 1267

For Respondent: R. Craig Spickard, Esquire

Hyundai of Kurkin Brandes LLP

Central Florida 105 West Fif th Avenue

Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

At issue in this proceeding is whether the Petitioner ,

Action Nissan, Inc. , d/b/a Universal Hyundai ("Universal") , has

standing to protest the establishment of Hyundai of Central

Florida, LLC , d / b / a Hyundai of Central Florida ("HCF") , as an

a dditional dealership of Hyundai Motor America (ÐHMAÑ) in

Clermont (Lake County), Florida, as described in the notice

published in the Florida Administrative Register o f March 26,

2015 (vol. 41, no. 6, p. 1480 - 81) .

PRELIMINARY STATEMENT

On March 26, 2015, the Department of Highway Safety and

Motor Vehicles (ÐDHSMVÑ) published notice that HMA intended to

allow HCF to establish a dealership for the sale of Hyundai

vehicles at a proposed location in Clermont, Lake County,

Florida (the ÐNoticeÑ) . The N otice s tated that it was for a

ÐNew Point Franchise Motor Vehi cle Dealer in a County of More

t han 300,000 Population.Ñ On April 23, 2015, Universal timely

filed its notice of protest of the proposed new Hyundai

dealership. Also on April 23, 2015, DHSMV forwarde d UniversalÓs

notice of protest to the Division of Administrative Hearings

(ÐDOAHÑ) for the assignment of an administrative law judge and

the conduct of a formal hearing. The final hearing was

scheduled for December 3, 4, 8, 9, and 15 through 18, 2015, in

Tallahassee.

On October 12, 2015, HMA filed a Motion for Bifurcated and

Expedited Hearing on Universal HyundaiÓs Standing (the

ÐMotionÑ) . In consultation with the parties, the undersigned

continued the final hearing on the merits of HCFÓs proposed

dealer ship and scheduled two day s of hearing, on December 8

and 9, 2015, on the threshold issue of UniversalÓs standing to

protest the proposed dealership.

Section 320.642(3)(a)2. , Florida Statutes, provides that if

a proposed new dealership is to be located Ð in a county with a

population of less than 300,000 , according to the most recent

data of the United States Census Bureau or the data of the

Bureau of Economic and Business Research of the University of

Florida,Ñ then existing dealers within a radius of 20 mi les of

the proposed new dealership have standing to protest the new

dealership. Section 320.642(3)(b)2. provides that if the

proposed new dealership is to be located Ðin a county with a

population of more than 300,000 , according to the most recent

data of the United States Census Bureau or the data of the

Bureau of Economic and Business Research of the University of

Florida,Ñ then existing dealers within a radius of 12.5 miles of

the proposed new dealership have standing to protest the new

dealership.

T he parties have stipulated that if the statutory Ðprotest

ringÑ is 12.5 miles, then Universal does not have standing to

protest the proposed new dealership. They have also stipulated

that if the ring is 20 miles, then Universal does have standing.

The Mot ion points out that the April 1, 2014 , Bureau of

Economic and Business Research of the University of Florida Ós

(ÐBEBRÑ) estimate of the population of Lake County was 309,736

persons and that the United States Census BureauÓs July 1, 2014 ,

estimate of the p opulation of Lake County was 315,690. These

were the most recent population estimates as of the date of the

DHSMV notice. Therefore, based on the most recent data produced

by the entities explicitly recognized by section 320.642(3), the

protest ring is 1 2.5 miles and Universal does not have standing.

In response, Universal argues that the statute does not

state that DHSMV is to rely on the estimates made by the Census

Bureau or BEBR but on the most recent data generated by one of

those entities. The most recent actual count of the persons

living in Lake County, the 2010 United States Decennial Census,

found the population to be 297,047 persons. Universal contends

that this number should presumptively govern DHSMVÓs

determination of county population, abs ent some demonstration

that the subsequent estimates made by the Census Bureau and BEBR

are sufficiently accurate to demonstrate that the population of

Lake County was greater than 300,000 persons on April 1, 2014.

Therefore, two related issues are to be r esolved in this

proceeding. First, there is the factual issue: what is the

population of Lake County? Second, there is the legal issue:

what does the statute require of DHSMV to determine the

population of a county? May DHSMV continue its practice of

r elying on the most recent population estimate produced by BEBR,

or must the agency conduct its own statistical analysis of the

raw data gathered by BEBR or the Census Bureau and produce its

own estimate of the countyÓs population?

At the hearing on standin g, Universal presented the

testimony of Nalini Vinayak , an o perational m anagement

c onsultant m anager for DHSMV, and Stanford Weisberg , a professor

of statistics at the University of Minnesota and consultant for

the Fontana Group . Dr. Weisberg also testifi ed in rebuttal.

Dr. Weisberg was accepted as an expert in statistics.

Universal's Exhibits 1 through 4 and 6 through 9 were admitted

into evidence. Respondents presented the testimony of James

McClave , chief executive officer of Info Tech, a statistical and

economic consulting and software development firm, as well as a

former member of the statistics faculty at the University of

Florida. Dr. McClave was accepted as an expert in statistics.

Respondents' Exhibits 2 through 5 and 9 were admitted into

evi dence.

The three - volume Transcript of the final hearing was filed

at DOAH on December 10, 2015 . The parties timely filed their

Proposed Recommended O rder s on December 21, 2015 .

Unless otherwise stated, all stat utory references are to

the 201 4 edition of the Florida Statutes. 1/

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the

following findings of fact are made:

1. Universal is a Hyundai dealer located at 12801 South

Orange Blossom Trail, Orlando, Florida 32837.

2. S tanding to protest the establishment of an additional

new motor vehicle dealer depends on the population of the county

in which the proposed location sits . If the populatio n is

greater than 300,000 person s, then a dealer of the same line -

make must either: i) be located within a radius of 12.5 miles

from the proposed locatio n (the "distance test"); or

ii) "establish that during any 12 - month period of the 36 - month

period preceding the filing of the [manufac turer's] application

for the proposed dealership, the dealer or its predecessor made

25 percent of its retail sales of new motor vehicles to persons

whose registered household addresses were located within a radius

of 12.5 miles of the location of the prop osed additional or

relocated motor vehicle dealer" (the "sales test"). If the

popula tion is less than 300,000, the radius for purposes of the

distance test is 20 miles, and a dealer must meet either the

distance t est or sales test based on a 20 - mile ring.

§ 320.642(3), Fla. Stat.

3. Universal has not sought to establish standing under the

sales test; the distance test is the only premise for standing in

this case. The parties have stipulated that if the population in

Lake County is greater than 300,000, then Universal does not have

standing. If the population is less than 300,000, Universal has

standing.

4. On March 26, 2015, DHSMV published the Notice, which

indicated HMAÓs intent Ð to establish the new point location in a

county of more than 300,000 population, according to the latest

population estimates of the University of Florida, Bureau of

Economic and Business Research."

5. There was no census or actual count of the population in

Lake County in 2014 . The partiesÓ experts agree that the exac t

number of persons in Lake County when the Notice was published

cannot be known.

6. Nalini Vinayak, the DHSMV employee who supervises

licensing, regulation and compliance for motor vehicle dealers,

manufacturers , and distributors, testified that in her n ine years

of experience it has been the practice of DHSMV to rely on the

most recent BEBR estimate of population in determining whether a

county has a population greater or less er than 300,000.

Ms. Vinayak testified that DHSMVÓs Bureau of Licenses and

Enf orcement does not employ statisticians and does not

independently assess the data behind the BEBR estimate .

7. UniversalÓs expert statistician , Dr. Sanford Weisberg,

testified that there is never a way of knowing the actual

population of a county; ther e are only population estimates of

varying degrees of accuracy and reliability. The Ðgold standardÑ

of population estimates is the Census BureauÓ s decennial census,

because it attempts an actual count of all persons in the

country. Dr. Weisberg noted tha t e ven the census is subject to a

small factor of uncertainty.

8. The most recent decennial census in 2010 found that the

population of Lake County was 297,047 persons.

9. BEBR is housed in the University of FloridaÓs College of

Arts and Sciences and des cribes its mission as follows:

* To collect, analyze , and generate

economic and demographic data on Florida and

its local areas;

* To conduct economic and demographic

research that will inform public policy and

business decision making;

* To distribut e data and research findings

throughout the state and the nation. 2/

10. Under contract with the State of Florida, BEBR produces

yearly estimates of the population of Florida and each of the

stateÓs counties and cities. BEBR's estimates are used for a

va riety of statutory purposes such as revenue sharing among

counties, 3/ county applications for primary care for children and

families challenge grants, 4/ concurrency determinations, 5/

regional water supply planning, 6/ and limitations on alcoholic

beverage l icenses . 7/

11. B EBR produces estimates ; it does not conduct population

counts. When asked what the term ÐdataÑ means in the context of

population estimates, Dr. Weisberg responded as follows:

In this instance, data would be everything

that goes into prod ucing an estimate and

everything that goes into assessing the

quality of the estimate. So it would include

the methodology thatÓs used; it would include

the data used to form an estimate; it would

include the estimate; it would include

estimates of imperf ection in the estimate;

and any other related inference based on

those types of information.

12. Ms. Vinayak testified that when DHSMV published the

Notice in March 2015 , it consulted BEBR Ós April 1, 2013 , Florida

Estimates of Population. BEBR's April 1 , 2013 , estimate of the

population in Lake County was 303,317 persons. The April 1,

2013 , population estimate used by DHSMV did not reflect BEBRÓs

most recent data as of March 2015. At the time the Notice was

published , the most recent BEBR population es timates available

were th ose dated April 1, 2014. BEBR's April 1, 2014 , estimate

of the population in Lake County was 309,736 persons.

Therefore, DHSMVÓs mistake in using the 2013 estimate did not

affect its conclusion that the population of Lake County

exceeded 300,000 persons.

13. BEBR uses a Ð housing unit Ñ method to estimate

population, in which population changes are reflected by changes

in occupied housing units. In its April 1, 2014 , estimate, BEBR

states that the housing unit method is the most c ommonly used

method for making local population estimates in the United

States because it can utilize a wide variety of data sources ,

can be applied at virtually any level of geography , and has a

proven track record for producing reasonably accurate estima tes.

In its explanation of methodology, BEBR goes on to state:

The foundation of the housing unit method is

the fact that almost everyone lives in some

type of housing structure, whether a

traditional single family unit, an

apartment, a mobile home, or gr oup quarters,

such as a college dormitory, military

barrack, nursing home, or prison. The

population of any geographic area can

therefore be calculated as the number of

occupied housing units (households) times

the average number of persons per household

(PPH), plus the number of persons living in

group quarters facilities.

14. BEBR constructs its annual estimates beginning with

the housing units and persons per household observed in the last

decennial census. BEBR calculates the change in housing units

by collecting more recent data on housing unit indicators , such

as residential housing permits, active residential electric

customers, homestead exemptions, and school enrollments. All of

the data collected since the 2010 census indicates continued

growt h in the population of Lake County from 2010 to 2014 :

active residential electric customers increased 3.7 percent ,

school enrollments increased 2.4 percent , and building permits

indicated a 2.4 percent increase in housing units.

15. Dr. Weisberg pointed o ut that residential building

permits are not a precise indicator of new housing units during

the period in question. BEBR assumes a standard time between

permit issuance and the date of completion , but has no way of

testing the accuracy of that assumption . Dr. Weisberg noted

that BEBR also has the problem of estimating the number of new

mobile homes, which do not require permits. BEBR must also

estimate the number of homes that were demolished or taken out

of residential servi ce, all of which leaves a po tential for

error in the final population estimate . There are similar error

potentials in using residential electric customers and homestead

exemptions as factors for estimating population growth. In its

own documentation, BEBR concedes that the componen ts of its

population estimates can never be known exactly.

16. The Census Bureau also makes annual estimates of

population for counties and cities. The Census Bureau uses an

administrative record , or "ADREC" method , to adjust the

2010 census numbers for births, deaths, and migration into and

out of each county. The Census Bureau's July 1, 2014 , estimate

of the population of Lake County was 315,690.

17. Dr. Weisberg noted that the ADREC method is subject to

substantial uncertainty. The Census Bureau us es birth and death

registries to estimate the number of births and deaths in a

county , and tax returns to estimate the number of migrants

entering and leaving the county. All of these estimated values

are subject to error. Births may be registered in the wrong

county. Tax returns may be filed at an incorrect address. Many

persons do not file tax returns at all. Dr. Weisberg

acknowledged that the Census Bureau may make adjustments to deal

with these errors, but substantial uncertainty in the estimated

p opulation remains.

18. Dr. Weisberg concede d that the data collected by BEBR

and the Census Bureau are appropriate indicators of population

and that he does not know of better methods to estimate

population. He testified that both institutions "do a fine

job." Nevertheless, Dr. Weisberg contends that one cannot

conclude that the population in Lake County is over 300,000

based on the BEBR and Census Bureau estimates , because they are

subject to uncertainty and not sufficiently accurate.

19. Dr. Weisberg testified that the standard statistical

methodology for deciding between two options, such as whether

the population of Lake County is greater or lesser than 300,000,

is hypothesis testing. A hypothesis test is used to determine

whether there is enough e vidence in a data sample to infer that

a certain condition is true. This methodology enables one to

determine whether there is enough data present to decide that a

current condition (the Ðnull hypothesisÑ) should be rejected in

favor of believing that a n ew condition (the Ðalternative

hypothesisÑ) prevails.

20. In this case, Dr. Weisberg started with an assumption

that the population in Lake County is 297,047 , based on the last

census conducted in 2010. The decennial census should be

treated as the nul l hypothesis or Ðstate of natureÑ because it

is the most recent number that one may be certain is accurate

within a few hundred persons. O ne must further assume that the

null hypothesis c ontinues to prevail unless it can be

established with 95 percent cer tainty that the population in

Lake County is actuall y greater than 300,000. Once the null

hypothesis is established, the statistical analysis will

intrinsically favor the null hypothesis until there is

Ðcompelling evidenceÑ that the condition described by the null

hypothesis no longer applies.

21 . In conducting his analysis, Dr. Weisberg posited three

possible conclusions: (1) the population was almost certainly

greater than 300,000; (2) the population was almost certainly

less than 300,000; or (3) base d on the accuracy of available

estimates, reaching a conclusion that the population was greater

than 300,000 is impossible. Dr. Weisberg testified that

possible conclusion (3) could be restated to say that, based on

the accuracy of the available estimates , reaching a conclusion

that the population was less than 300,000 is also impossible.

22 . As a result of his statistical tests, Dr. Weisberg

opined that concluding that the population was greater than

300,000 is impossible. Dr. Weisberg also could not c onclude

with any level of confidence that the population was less er than

300,000. He agreed with the statement that one cannot say with

95 percent confidence one way or the other whether the

population of Lake County is under or over 300,000 persons.

Und er Dr. WeisbergÓs null hypothe sis, the status quo of the

2010 decennial census would prevail , and the only conclusion to

be reached is that the population remains less than 300,000.

23 . HMAÓs expert statistician , Dr. James McClave,

testified that because the hypothesis test is so heavily

weighted in favor of maintaining the null hypothesis, the choice

of the current condition to be identified as the null hypothesis

can be determinative. In this case, Dr. McClave disagreed with

Dr. WeisbergÓs choice of the 2010 census number as the Ðstate of

natureÑ as of April 2014.

24. Dr. McClave believed that a consideration of the most

recent estimates of the Census Bureau (315,690) and BEBR

(309,736) , and of the data on which those estimates were based ,

established that the status quo or current state of nature as of

April 2014 was that the population of Lake County was over

300,000 persons . If the null hypothesis is that the population

in Lake County is over 300,000 , the data do not disprove it . In

fact, Dr. McCl ave concluded Ðwith a very high level of

confidence that Lake CountyÓs population exceeded 300,000 on

April 1, 2014.Ñ

25. Dr. Weisberg conceded that while the 2010 decennial

census represented the state of nature as of 2010 , it was not

intended to be a me asure of population in 2014. While the

201 0 census enumeration may have been generally ac cepted as the

true population of Lake County in 2010, no one would contend

that it stated the true population as of April 2014 .

Dr. McClave opined that, even before collecting any population

indicator data, a rational person would not begin with the

belief or assumption that the population in Lake County in 2014

was 297,047.

26. Dr. McClave testified that s tatistics may be divided

into the areas of inferential statis tics , which includes the

complicated calculations of confidence intervals and hypothesis

tests described very briefly above, and descriptive statistics ,

Ðjust looking at the data and trying to get your arms around it,

understand it . Ñ Descriptive statistic s can be used as a "sanity

check" on the Census Bureau's and BEBR's population estimates

for Lake County, both of which are greater than the last census

and ove r 300,000 persons . In this case, the descriptive

statistics support ed the conclus ion that the p opulation in

Lake County has continued to grow at a pace sufficient to place

it above 300,000 as of April 1, 2014 .

27. The Census Bureau's en umeration of Lake County's

2010 population was 297,047 , compared with an enumeration in

2000 of 210,527. Dr. McCl ave testified that th is difference

equates to a 10 - year growth rate of 41 percent and average

annualized growth of 3.5 percent per year from 2000 to 2010. He

stated that for Lake County's population to have remained under

300,000 between 2010 and 2014, it s four year growth rate would

have to have slowed dramatically to only 1 percent over the

four - year period, or only an average annualized growth rate of

0.25 percent .

28. Dr. Weisberg correctly noted that the growth rate in

Lake County was much slower to ward the end of the 2000 - 2010

decade. From this finding he concluded that Dr. McClaveÓs

reliance on the 10 - year growth rate may distort the picture of

what has happened since 2010.

29. A ll parties agree that the population of Lake County

in 2010 was 29 7,047, meaning that the county only needed to add

2,953 persons to its population between 2010 and 2014 to reach

the level of 300,000. This addition would amount to an average

of 738.25 persons per year from 2010 - 2014.

30. BEBR Special Population Repo rt number 7, dated

May 2011, was titled ÐRevised Annual Population Estimates for

Florida and Its Counties, 2000 - 2010, with Components of Growth.Ñ

In this report, BEBR reexamined its population estimates for the

previou s decade, revising them to make them consistent with the

2000 and 2010 Census counts. The report indicates that

population growth in Lake County averaged 11,127.43 persons per

year from 2000 - 2001 through 2006 - 2007, but only 2,877.67 persons

per year from 2007 - 2008 through 2009 - 2010.

31. D r. Weisberg was thus correct that the recession

slowed growth in Lake County during the latter part of the

decade. However, the absolute numbers indicate that even the

levels of growth shown during the recessionary period would have

been more than suffici ent to raise the population of Lake County

above 300,000 by April 2014. During the worst single year of

the decade, 2008 - 2009, the population of Lake County increased

by 2,302 persons. If the countyÓs population increased by only

this number from 2010 th rough 2014, then its population would be

well in excess of 300,000. No evidence was presented to

indicate that the countyÓs pop ulation growth between the

2010 Census and April 2014 could be presumed to be less than it

was during the depths of the recessio n .

32. The statistical experts also testified at some length

concerning Dr. WeisbergÓs testing of his null hypothesis. To do

so, he calculated standard deviations which reflect the

uncertainty or amount of error in the Census Bureau and BEBR

population e stimates. The standard deviations are calculated

using estimates of uncertainty published by the Census Bureau

and BEBR called Mean Absolute Percentage Errors or "MAPES." A

MAPE is the average of errors of individual county population

estimates when the direction of error (too high or too low) is

ignored. A MAPE can be calculated only in a census year because

that is the only year in which the estimate can be compared to a

supposed true value.

33. Using various MAPES published by the Census Bureau and

B EBR, Dr. Weisberg calculated standard deviations to determine

several one - sided 95 percent confidence intervals that purport

to show the uncertainty of the underlying population estimates.

Dr. McClave pointed out that the MAPES contain uncertainty

because the Census Bureau and BEBR report multiple MAPES, and

there is judgment and uncertainty in selecting a MAPE to use.

Dr. McClave attempted to correct for the over - estimation of

uncertainty in the 2010 MAPES by calculating a four - year MAPE.

D r. Weisberg c ontended that the four - year MAPE was flawed

because there was no true value for the comparison.

34. No detailed findings are necessary as to the MAPES

controversy. This complex issue is described merely to

illustrate the central legal question: does sec tion 320.642(3)

actually require DHSMV to engage in the sort of sophisticated

statistical and demographic analysis demonstrated by the experts

in this case, who in any event reached diametrically opposing

conclusions? Or does section 320.642(3) permit DHS MV to

determine the population of the county as it has done for at

least the past nine years , i.e, by adopt ing the BEBR population

estimate as its own? The legal question will be discussed and

resolved in the Conclusions of Law.

35. If the legal questi on is resolved in favor of DHSMVÓs

reliance on the BEBR estimate, then it is not necessary to

resolve the factual issues presented at the hearing as to the

size of the population of Lake County. If the legal question is

resolved in favor of the interpreta tion advocated by Universal,

then the factual issues require resolution.

36. Based on the foregoing subsidiary findings, it is

found that the population of Lake County was greater than

300,000 persons according to the most recent data of BEBR and

the Cens us Bureau at the time the Notice was published.

Dr. Weisberg is theoretically correct that the possibility of

t he population being less than 300,000 cannot be absolutely

ruled out, but the data point firmly in the upward direction.

CONCLUSIONS OF LAW

37 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and th e parties to this

proceeding. § § 120.569 , 120.57(1), 320.642, and 320.699, Fla.

Stat. (2015).

38. Section 320.642(2)(a), Florida Statutes, provides, in

relevant part :

(2)(a) An application for a motor vehicle

dealer license in any community or territory

shall be denied when:

1. A timely protest is filed by a presently

existing franchised motor vehicle dealer

with standing to protest as defined in

subsection (3). . . .

39. Universal bears the burden of establishing standing by

a preponderance of the evidence. Braman Cadillac, Inc. v. DepÓt

of H igh . S af . & Motor Veh. , 584 So. 2d 1047, 1050 (Fla. 1st

DCA 1991).

40. Section 320.642(3) provides:

(3) An existing fra nchised motor vehicle

dealer or dealers shall have standing to

protest a proposed additional or relocated

motor vehicle dealer when the existing motor

vehicle dealer or dealers have a franchise

agreement for the same line - make vehicle to

be sold or service d by the proposed

additional or relocated motor vehicle dealer

and are physically located so as to meet or

satisfy any of the following requirements or

conditions:

(a) If the proposed additional or relocated

motor vehicle dealer is to be located in a

cou nty with a population of less than

300,000 according to the most recent data of

the United States Census Bureau or the data

of the Bureau of Economic and Business

Research of the University of Florida :

1. The proposed additional or relocated

motor vehicl e dealer is to be located in the

area designated or described as the area of

responsibility, or such similarly designated

area, including the entire area designated

as a multiple - point area, in the franchise

agreement or in any related document or

commitme nt with the existing motor vehicle

dealer or dealers of the same line - make as

such agreement existed upon October 1, 1988;

2. The existing motor vehicle dealer or

dealers of the same line - make have a

licensed franchise location within a radius

of 20 miles of the location of the proposed

additional or relocated motor vehicle

dealer; or

3. Any existing motor vehicle dealer or

de alers of the same line - make can establish

that during any 12 - month period of the

36 - month period preceding the filing of the

licenseeÓs application for the proposed

dealership, the dealer or its predecessor

made 25 percent of its retail sales of new

motor vehicles to persons whose registered

household addresses were located within a

radius of 20 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided the existing dealer

is located in the same county or any county

contig uous to the county where the

additional or relocated dealer is proposed

to be located.

(b) If the proposed additional or relocated

motor vehicle dealer is to be located in a

county with a population of more than

300,000 according to the most recent data of

the United States Census Bureau or the data

of the Bureau of Economic and Business

Research of the University of Florida :

1. Any existing motor vehicle dealer or

dealers of the same line - make have a

licensed franchise location within a radius

of 12.5 miles of the location of the

proposed additional or relocated motor

vehicle dealer; or

2. Any existing motor vehicle dealer or

dealers of the same line - make can establish

that during any 12 - month period of the

36 - month period preceding the filing of the

licenseeÓs application for the proposed

dealership, such dealer or its predecessor

made 25 percent of its retail sales of new

m otor vehicles to persons whose registered

household addresses were located within a

radius of 12.5 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided such existing

dealer is located in the same county or any

county contiguous to the county where the

additional or relocated dealer is proposed

to be located. [ Emphasis added ]

41. As found above, DHSMV relies upon BEBRÓs most recent

population estimate as establishing the population of the county

in accordance with s ection 320.642(3). Universal contends that

the statute requires DHSMV to consider the full range of the

Ðmost recent dataÑ of the Census Bureau and BEBR, not merely the

BEBR estimate based on that data. According to Universal, DHSMV

is required to perfor m its own analysis of the data in order to

arrive at an independent estimate of a countyÓs population.

42. The term ÐestimateÑ is used here advisedly. All the

parties agree that the population of a county can never be

precisely known; even the decennial count by the Census Bureau

is off by a few hundred persons at the county level. Thus,

section 320.642(3) does not require a perfect count of the

population but a reliable estimate based on the most recent data

of the Census Bureau or BEBR. UniversalÓs re ading of the

statute assumes that there is to be found a more reliable

estimate, based on the most recent BEBR data, than BEBR itself

is capable of producing, and that DHSMV has the ability to

produce such an estimate .

43. DHSMVÓs Bureau of Licenses and E nforcement does not

employ statisticians. DHSMV is statutorily responsible for the

administration and enforcement o f the provisions of chapter 320 .

§ 320.011, Fla. Stat. DHSMV is responsible for the regulation

and licensing of motor vehicle manufacturer s, factory branches,

distributors and importers , among many other duties set forth in

chapter 320. Universal points to no provision of chapter 320

indicating that DHSMV is charged with performing statistical

analyses of the kind undertaken by the experts in this case, or

routinely performed by BEBR in the normal course of its

business .

44. BEBR is the State of FloridaÓs statutorily

acknowledged expert in the field of population statistics. It

is irrational to read section 320.642(3) as requiring DHSMV, a n

agency with no particular expertise in the fields of demography

or statistics, to go behind the estimating work performed

annually by BEBR, an entity whose primary function is to

generate precisely the kind of population estimates contemplated

by the sta tute.

45. It is concluded that DHSMVÓs use of the most recent

BEBR population estimates to determine the population of Lake

County as of the date of the Notice was in com pliance with

section 320.642(3) .

46. Even if DHSMV were not to rely on the BEBR esti mate,

the greater weight of the evidence produced at the hearing

established that the population of Lake County was greater than

300,000 persons according to the most recent data of BEBR and

the Census Bureau at the time the Notice was published.

47. Univ ersal has not established by a preponderance of

the evidence that it has standing to proceed with its protest.

RECOMMENDATION

Based on the foregoing, it is, therefore,

RECOMMENDED that a fin al order be entered by the Department

of Highway Safety and Motor Vehicles dismissing Action Nissan,

Inc., d/b/a Universal HyundaiÓs protest of the proposed

establishment of an additional dealership for failure to

establish standing pursuant to section 320.642(3).

DONE AND ENTERED this 7 th day of January, 2016 , in

Tallah assee, 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 SUNCOM 278 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7 th day of January, 2016 .

ENDNOTES

1/ Section 320.642 was most recently amended in 2013.

2/ https://www.bebr.ufl.edu/content/about

3/ § 186.901, Fla. Stat.

4/ § 154.504(2), Fla. Stat.

5/ § 163.3180(5)(h)4., Fla. Stat.

6/ § 373.709(2)(a)1.a., Fla. Stat.

7/ § 561.20, Fla. Stat.

COPIES FURNISHED :

Jennifer Clark, Age ncy Clerk

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 430

2900 Apalachee Parkway, M ail S top 61

Tallahassee, Florida 32399

(eServed)

William Edward Van Cott

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 430

2900 Apalachee Parkway , Mail Stop 61

Tallahassee, Florida 32399

(eServed)

Kenneth L. Paretti, Esquire

Quinton and Paretti, P.A.

80 Southwest Eighth Street, Suite 2150

Miami, Florida 33130

(eServed)

Bill Schultheiss

Hyundai Motor America

Suite 100

3025 Chastain Meadows Parkway

Marietta, Georgia 30066

J. Andrew Bertron, Esquire

Nelson, Mullins, Riley,

and Scarborough, LLP

Suite 202

3600 Maclay Boulevard, South

Tallahassee, Florida 32312 - 1267

(eServed)

A. Edward Q uinton , III , Esquire

Quinton and Paretti, P.A.

80 Southwest Eigh th Street, Suite 2150

Miami, Florida 33130

(eServed)

R. Craig Spickard, Esquire

Kurkin Brandes, LLP

105 West Fif th Avenue

Tallahassee, Florida 32303

(eServed)

C. Everett Boyd, Esquire

N elson, Mullins, Riley,

and Scarborough , LLP

Suite 202

3600 Maclay Boulevard , South

Tallahassee, Florida 32312 - 1267

(eServed)

Julie Baker, Chief

Bureau of Issuance Oversight

Division of Motorist Services

Department of Highway Safety

and Motor Vehicle s

Neil Kirkman Building, Room A - 338

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0 635

(eServed)

Steve Hurm, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Flori da 32399 - 0500

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.