07-000431 Sunl Group, Inc., And Xlilr8ing Enterprises, Llc vs. West Coast Motorcycles Status: Closed Recommended Order on Monday, March 12, 2007.

Summary: Respondent does not have standing to protest the proposed scooter dealership because it does not sell the same line-make scooters as those to be sold by the proposed dealership. Recommend the protest be dismissed for lack of standing or failure to appear.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNL GROUP, INC., and XLILR8ING )

ENTERPRISES, LLC, )

)

Petitioners, )

)

vs. ) Case No. 07 - 0431

)

WEST COAST MOTORCYCLES, )

)

Respondent. )

)

RECOMM ENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on March 8 ,

200 7 , in St. Petersburg , Florida.

APPEARANCES

For Petitioner SunL Group, Inc. :

No appearance

For Petitioner XLILR8ING En terprises, LLC:

Thomas R. Malin, III

909 49th Street South

Gulfport, Florida 33707

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether the Department of Highway Safety and

Mo tor Vehicles should approve the establ ishment of a proposed

dealership by SunL Group, Inc., in Gulfport, Florida.

PRELIMINARY STATEMENT

T he Department of Highway Safety and Motor Vehicles

(Department) published notice in th e December 22, 2006, volume

of th e Florida Administrative Weekly that S unL Group, Inc.

(SunL) , intend s to establish a dealership in Gulfport, Florida.

The proposed dealer is XLILR8ING Enterprises, LLC d/b/a TRM

Rides (TRM) , and the vehicles to be sold by the dealership are

“ China Qingqi (QING), Taizhou Chunal (CHUA), America n Lifan

(CHOL), Shanghai Meitian (MEIT), Shanghai JMSTAR (JMST)

motorcycles.”

On January 18, 2007, the Department received a letter from

West Coast Motorcycles (West Coast) protesting the establishment

of the proposed dealership. On January 23, 2007, the Department

referred the matter to the Division of Administrative Hearings

(DOAH) for a hearing.

Only TRM appeared at the final hearing. TRM presented the

testimony of Thomas R. Malin, III . No exhibits were offered

into evidence.

The hearing was transcrib ed by a court reporter, but n o

transcript of the hearing was filed with DOAH . TRM waived the

filing of a proposed recommended order .

FINDINGS OF FACT

1. TRM is in the business of selling motor scooters in

Gulf p ort, which is in Pinellas County. TRM is o wned by

Thomas R. Malin, III.

2. TRM is currently an authorized dealer of scooters

manufactured and/or imported by Carter Brothers and Tank Sports.

Those scooters sell in the $2,000 to $3,000 price range.

3. TRM is seeking through this proceeding to b ecome an

authorized dealer of scooters imported by SunL. 1 Those scooters

sell in the $1,4 50 to $1,995 price range.

4. No evidence was presented at the hearing regarding the

location o r products sold by West Coast, and there is no

evidence that West Coas t sells SunL scooters.

5. There are no dealers selling SunL scooters in the

Pine llas County area, according to Mr. Malin.

6. West Coast was provided due notice of the date, time,

and location of the final hearing in this case .

7. No representative of West Coast appeared at the final

hearing.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

120.57 (1) , and 320.699, Florida Statutes (2006). 2

9. West Coast’s failure to ap pear at the final hearing

c ould be considered a withdrawal of its protest , and the protest

could be dismissed on that ground. Alternatively, as discussed

below, the protest should be dismissed because West Coast failed

to prove that i t has standing to pro test TRM’s proposed

dealership.

10. West Coast has the burden of proof on the issue of its

standing. See generally Dept. of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981) (burden of proof

is on the party asserting the affirma tive of the issue).

11. Standing to protest the establishment of TRM’s

proposed dealership is governed by Section 320.642(3)(b),

Florida Statutes. Pursuant to that statute, standing is limited

to :

1. Any existing motor vehicle dealer or

dealers of th e 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

licensee's application for the proposed

dealership, such 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

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 r elocated dealer is proposed

to be located.

12. Section 320.60(14), Florida Statutes, defines "[l]ine -

make vehicles" to include “those motor vehicles which are

offered for sale, lease, or distribution under a common name,

trademark, service mark, or bra nd name of the manufacturer of

same.”

13. West Coast failed to prove its standing. There is no

evidence that West Coast sells the same line - make vehicles as

those at issue in this case and , to the contrary, Mr. Malin

testified that there are no SunL scoo ter dealers in the Pinellas

County area. Moreover, no evidence was presented regarding the

location of West Coast in rela tion to TRM’s proposed dealership

or the percentage of sales made by West Coast in the relevant

vicinity of TRM’s proposed dealership .

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Department issue a final order

dismissing West Coast’ s protest and approving TRM’s proposed

SunL dealership in Gulf p ort.

DONE AND ENTERED this 1 2th day of March , 200 7 , in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(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 12th day of March, 2007.

ENDNOTES

1 / The SunL scooters are considered “motorcycles” under Florida

la w because their engines exceed 50 cubic centimeters. See

§§ 320.01(27) and (28) , 320.27(1)(b) , Fla. Stat. Motorcycles

are included in the definition of “motor vehicle” for purposes

of the Motor Vehicle Dealer’s Act in Sections 320.60 through

320.70, Flor ida Statutes. See § 320.60(10), Florida Statutes.

See also Forehand , Motor Vehicle Dealers and Motor Vehicle

Manufacturers: Florida Reacts to Pressures in the Marketplace ,

29 Fla. State U. L. Rev. 1057, 1066 - 67 (2002) (discussing the

scope of the Motor V ehicle Dealer’s Act as it relates to

scooters).

2 / All statutory references are to the 2006 version of the

Florida Statutes.

COPIES FURNISHED :

Fred O. Dickinson, III, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman B uilding

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Judson M. Chapman, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Michael J. Alderman, Esquir e

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

Marion H. Hooper

West Coast Motorcycles

6814 46th Avenue North

St. Petersburg, Florida 33709 - 4706

Mei Zhou

SunL Group, Inc.

8551 Ester Boulevard

Irving, Texas 75063

Tom Malin

909 49th Street South

Gulfport, Florida 33707

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommende d Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.