07-003673 Sunl Group, Inc., And Coastal Powersports vs. Wholesale Nation Automotive, Inc. Status: Closed Recommended Order on Thursday, January 31, 2008.

Summary: Petitioner failed to appear at hearing, and therefore no evidence was presented that the current motor vehicle franchise was not adequately serving the area. Recommend that the proposed franchise be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNL GROUP, INC. AND COASTAL )

POWERSPORTS, )

)

Petitioners, )

)

vs. ) Case No. 07 - 3673

)

WHOLESALE NATION AUTOMOTIVE, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause came on formal hearing

before Diane Cleavinger, duly - designated Administrative Law

Judge of the Division of Administrative Hearings on November 8,

2007, in Fort Walton Beach, Florida.

APPEARANCES

For Petitioners: No appearance

For Respondent: David Wray

Wholesale Nation Automotive, Inc.

319 Miracle Strip Parkway

Fort Walton Beach, Florida 32548

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners are entitled

to a motor vehicle dealership that is proposed to be located in

Fort Walton Beach, Florida .

PRELIMINARY STATEMENT

On August 3, 2007, SunL Group, Inc. and Coastal Powersports

(Petitioner s) published a Notice of Publication for a New Point

Franchise Motor Vehicle Dealer in a County of Less than 300,000

Population in the Florida Administrative Weekly. The proposed

dealership was to be located in Fort Walton Beach, Florida. On

August 13, 2 007, Wholesale Nation Automotive, Inc. (Respondent)

filed a Petition of Complaint in letter form, protesting the

establishment of the franchise at its proposed location. The

case was forwarded to the Division of Administrative Hearings to

conduct the fina l hearing in this matter.

This cause came on for hearing as noticed. After waiting

more than an hour, the Petitioners failed to appear to prosecute

their claim. Respondent was present and prepared to go forward

with the hearing. The hearing was cal led to order and

Respondent presented evidence regarding their protest.

FINDINGS OF FACT

1. The evidence showed that the dealership proposed by

Petitioners would sell the same line and make of motorcycles as

those sold by Respondent. The proposed de alership would also

compete in the Respondent’s territory since it would be located

in the same county as Respondent and would be within 20 miles of

Respondent. Respondent has standing to protest the

establishment of the proposed dealership.

2. On September 18, 2007, a Notice of Hearing setting the

date, time and location of final hearing was issued in this

case. The Notice of Hearing was mailed to the last known, valid

addresses of the Petitioners, which were also the addresses

provided in Petiti oners’ Notice of Publication. Neither Notice

of Hearing was returned.

3. T his cause came on for hearing as noticed. After

waiting more than an hour, the Petitioners failed to appear to

prosecute their claim. There has been no communication from t he

Petitioners before, during, or since the hearing to indicate

that they would not be attending the final hearing.

4. Because of Petitioners’ failure to appear, there was no

evidence to demonstrate that Petitioners are entitled to a

franchise moto r vehicle dealership in Fort Walton Beach,

Florida. Absent such evidence, the establishment of the

proposed dealership should be denied.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

6. The Department of Highway Safety and Motor Vehicles

(Department) is the agency responsible for regulating the

licensing and franchising of motor vehicle dealers. §§ 320.60 -

320.70, F la. Stat.

7. Section 320.642(1), Florida Statutes, requires a motor

vehicle dealer who proposes to establish an additional motor

vehicle dealership within an area already represented by the

same line - make vehicle to give written notice to the Departm ent

of its intent to establish a new franchise. The statute also

provides that any affected dealership may protest the

establishment of a new franchise in its territory.

8. Section 320.642(2), Florida Statutes, establishes the

standards of review to determine if establishment of a new,

competing motor vehicle franchise should be granted. Section

360.642 (2)(a), Florida Statutes, states in relevant part:

An application for a motor vehicle dealer

license in any community or territory shall

be denied w hen:

* * *

2. The licensee fails to show that the

existing franchised dealer . . . are not

providing adequate representation of such

line - make motor vehicles in such . . .

territory. The burden of proof in

establishing inadequate representation shall

be on the licensee . (emphasis supplied)

9. In this case, Petitioners, as the licensees, failed to

appear at the hearing after proper Notice of the hearing was

issued. Because Petitioners failed to appear, there was no

evidence that Respondent was not adequately representing the

territory in which the proposed dealership intends to locate was

not presented. Absent such evidence, Petitioners have not

carried their burden of proof in this matter and the

establishment of the proposed franchise should be denied.

RECOMMENDATION

Accordingly, in consideration of the foregoing findings of

fact and conclusions of law, it is

RECOMMENDED that a final order be entered by the Florida

Department of Highway Safety and Motor Vehicles denying the

establi shment of Petitioners’ proposed franchise.

DONE AND ENTERED this 31st day of January, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31 st day of January, 2008.

COPIES FURN ISHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

Carl A. Ford, Director

Division of Motor Vehicles

Neil Kirkman Building, Room B - 439

Tallahassee, Florida 32399 - 0635

Judson M. Chapman, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

David Wray

Wholesale Nation Automotive, Inc.

319 Mir acle Strip Parkway

Fort Walton Beach, Florida 32548

Mei Zhou

SunL Group, Inc.

8551 Esters Boulevard

Irvine, Texas 75063

Curtis Mitchell

Coastal Powersports

12 Eglin Parkway Southeast

Fort Walton Beach, Florida 32548

NOTICE OF RIGHT TO SUBMIT EXCEPTI ONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order of

Dismissal. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this

case.