07-002772 Ls Motorsports, Llc And Best Buy Vehicles, Inc. vs. Wenmark, Inc., D/B/A All The Wheel Toys Status: Closed Recommended Order on Wednesday, September 5, 2007.

Summary: Petitioner failed to show that the existing dealer was not adequately representing the area. The existing dealer would be adversely affected by an additional dealership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LS MOTORSPORTS, LLC AND BEST )

BUY VEHICLES, INC., )

)

Petitioner, )

)

vs. ) Case Nos. 07 - 0655

) 07 - 2772

WENMARK, INC., d/b/a )

ALL THE WHEEL TOYS, )

)

Respondent . )

________________________________ _)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on July 19,

2007, in Palm City , Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner s : No Appearan ce

For Respondent : Mark Mourning, Pro Se

WenMark, Inc. d/b/a

All the Wheel Toys

1540 Northwest Federal Highway

Stuart, Florida 34994

STATEMENT OF THE ISSUE

T he issue in these case s is whether the Petitioner is

entitled to establish a dealership for the sale of certain

motor vehicles. As to both cases, the Respondent currently

sells motorcycles that are manufactured by the same companies

for which the Petition er seeks approval.

PRELIMINARY STATEMENT

O n January 26, 2007, the Department of Highway Safety and

Motor Vehicles caused to be published a notice in the Florida

Administrative Weekly. The notice announced that LS

MotorSports, LLC, intended to establish a dealership for the

sale of Zhejiang Lingyun (ZHEL), Chongqing Lifan (CHOL),

Chongqing Zongshen (ZONG) and Jiangsu Linhai (LINH)

motorcycles at 3525 South U.S. 1, Fort Pierce (Saint Lucie

County), Florida on or after December 7, 2006. The dealership

name was Best Buy Vehicles, Inc. (Best Buy). Thereafter, the

Respondent, WenMark, Inc., d/b/a All the Wheel Toys

(Respondent) timely challenged the approval of the dealership

proposed by Best Buy. The Respondent maintains it has an

exclusive right to sell mot orcycles within the geographical

area that Best Buy seeks to sell. This case was forwarded to

the Division of Administrative Hearings for formal proceedings

on February 8, 2007, and was designated DOAH Case No. 07 - 0655.

Similarly, DOAH Case No. 07 - 2772, r esulted from a second

challenge filed by Respondent . The notice in that case was

published in the Florida Administrative Weekly on June 15,

2007, and involves the same parties. The motor vehicles in

the second case are Qianjiang Motorcycles Group Corpora tion

(QIAN) and Chunfeng Holding Group Co. Ltd. (CFHG). T he

Respondent maintains it is exclusively entitled to sell the

named motor vehicles in the geographical area sought by Best

Buy.

On July 10, 2007, a telephone conference call was

conducted in DOAH C ase No. 07 - 2772, and the parties’ ore tenus

motion for consolidation was granted. As DOAH Case No. 07 -

0655 was then scheduled for final hearing on July 19, 2007,

the parties agreed that the cases would proceed to hearing as

scheduled.

At the hearing, Ma rk Mourning appeared and testified on

behalf of the Respondent. No one appeared for LS MotorSports,

LLC and Best Buy and no evidence was presented to support the

new dealership. A transcript of the proceeding was not filed.

The Respondent’s Composite Ex hibit 1 was admitted into

evidence at hearing . The Respondent was also to late - file

exhibits that would clarify testimony presented at the

hearing. More specifically, the Respondent was to file copies

of his agreements with the manufacturers of the motor cycles

wherein his company was granted exclusive rights to sell. On

August 8, 2007, an unsigned document purportedly from X Power

Motor Company was filed with the Division of Administrative

H earings. The record in these cases was then closed. None of

th e parties filed a proposed recommended order.

FINDINGS OF FACT

1. The Respondent , WenMark, Inc. d/b/a All the Wheel

Toys, is an existing dealer of motor vehicles as defined in

Section 320.60(11), Florida Statutes (2007).

2. At all times material to th e allegati ons of this

case, the Petitioner , LS MotorSports, LLC and Best Buy

Vehicles, Inc.,

sought approval for a motor vehicle dealership to be located

at 3525 South U.S. 1, Fort Pierce (Saint Lucie County),

Florida.

3. The Petitioner’s proposed loc ation is wi thin 13 miles

of the Respondent’s dealership at 1540 Northwest Federal

Highway, Stuart (Martin County), Florida. This distance was

calculated by MapQuest, an internet site providing directions

and distances, but was verified by Mark Mourning. The

addresses are on the same road, that is to say “Federal

Highway” or U.S. 1. One location is simply north of the

other.

4. The Respondent is licensed by the Department of

Highway Safety and Motor Vehicles and is authorized to sell

motorcycles manufact ured by various manufacturers. Some

confusion in th ese case s results because the motorcycles are

manufactured outside of this country, imported, and may or may

not be sold with the same name brands. Essentially, the

Respondent maintained it was granted a n exclusive right to

sell motorcycles described in this record as ZONG, CFHG, and

LINH. It is the Respondent’s assertion that Petitioner s have

been unlawfully selling motorcycles that have been distributed

in violation of its exclusive right to sell.

5. Additionally, since the existing dealership is

adequately meeting the needs of the geographical area to be

served by the Petitioners, the Respondent maintains it should

continue to be the sole approved dealership for the area.

6. According to the Respond ent’s most recent sales data,

78 percent of its sales are within 20 miles of the proposed

dealership.

7. If allowed to sell motorcycles at the proposed

location, the Petitioners will in all likelihood take sales

away from the existing dealer.

8. The Petitioners have presented no evidence to support

the new point location.

9. The motorcycles at issue in this case may bear the

names of customized sellers. That is to say, unlike

automobiles, the manufacturers and distributors of these types

of vehic les are inclined to “name” the cycle based upon the

seller’s preference. The Respondent maintains that it has

exclusive right to sell the motor vehicles based upon the

manufacturers and distributors regardless of the vehicle’s

ultimate sales “name.” The Petitioners presented no evidence

to refute this assertion.

10. The new point dealership would be located in St.

Lucie County, Florida, a county of less than 300,000

population, according to the latest population estimates of

the University of Florida, Bu reau of Economic and Business

Research.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the parties to , and the subject matter of ,

these proceedings. § § 120.57(1) , and 320.699 , Fla. Stat.

(2007 ).

12. For purposes of this case, “motor vehicle” includes

any new motorcycle. And , “motor vehicle dealer” means any

entity that is licensed to sell motorcycles. See §§

320.60(10) and (11), Fla. Stat. (2007).

1 3 . Section 320.642(2), Florida Statutes (2007 ) ,

provides , in perti nent part :

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

dealer license in any community or

territory

shall be denied when:

* * *

2. The licensee fails to show that the

existing franchised dealer or dealers who

register new motor vehicle retail sales or

retail leases of the same line - make in the

community or territory of the proposed

dealership are not providing adequate

representation of such line - make motor

vehicles in such community or territory.

The burden of proof in establishing

inadequate r epresentation shall be on the

licensee.

14 . The conditions for standing to protest an additional

motor vehicle dealership are p rovided in Section 320.642(3)(a)

for c ounties with populations of less than 300,000 such as St.

Lucie County. These standing r equirements will be enforced

according to parameters plainly set forth by the legislature.

See Braman Cadillac, Inc. v. Department of Highway Safety and

Motor Vehicles , 584 So.2d 1047 (Fla. 1st DCA 1991). In this

matter, the Respondent has demonstrated i t has standing to

contest the new point dealership.

15 . The Petitioners have not shown by any evidence that

the existing dealership is providing inadequate representation

in the community or territory of the proposed dealership.

16 . Inasmuch as the exi sting dealership has shown a

substantial percentage of its sales would fall within 20 miles

of the proposed dealership, it has adequately demonstrated it

would be financially harmed if another dealer were approved.

17. Section 320.605, Florida Statutes ( 2007), provides

as follows:

It is the intent of the Legislature to

protect the public health, safety, and

welfare of the citizens of the state by

regulating the licensing of motor vehicle

dealers and manufacturers, maintaining

competition, providing consum er protection

and fair trade and providing minorities

with opportunities for full participation

as motor vehicle dealers.

18. Based upon the foregoing, the Petitioners have

failed to establish they are entitled to a new point

motorcycle dealership as req uested.

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 new

point dealership sought by the Petitioners.

DONE AND ENTERED this 5th day of September , 2007 , in

Tallahassee, Leon County, Florida.

S

___________________________________

J. D. Parrish

Admin istrative 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

D ivision of Administrative

Hearings

this 5th day of September , 2007 .

COPIES FURNISHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

T allahassee, Florida 32399 - 0635

Mark Mourning

WenMark, Inc. d/b/a

All the Wheel Toys, Inc.

1540 Northwest Federal Highway

Stuart, Florida 34994

Mathu Solo

LS MotorSports, LLC

2550 East Desert Inn, No. 40

Las Vegas, Nevada 89121

Jim Buchheit

Best Buy V ehicles, Inc.

3525 South US 1

Fort Pierce, Florida 34982

Judson M. C hapman, General Counsel

Department of Highway Safety

And Motor Vehicles

Neil Kirkman Bldg

2900 Apalachee Parkway

Tallahassee Fl 32399 - 0500

Electra Theodorides - Bustle

Executive Direc tor

Department of Highway Safety

And Motor Vehicles

Neil Kirkman Bldg

2900 Apalachee Parkway

Tallahassee Fl 32399 - 0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.