07-004551 Vento North America, Llc And Dk Cycle, Inc. vs. Uvm Trading, Inc., D/B/A Cubi-K Scooters Status: Closed Recommended Order on Wednesday, March 26, 2008.

Summary: Licensee, who did not appear at hearing, failed to meet its burden of proving "inadequate representation" by existing dealers. Recommend denial of approval to establish new motorcycle dealership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VENTO NORTH AMERICA, LLC, AND )

DK CYCLE, INC., )

)

Petitioners, )

)

vs. ) Case No. 07-4551

)

UVM TRADING INC., d/b/a CUBI-K, )

SCOOTERS, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

March 26, 2008, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioners: No appearance

For Respondent: Manuel A. Ramirez, Esquire

1200 Brickell Avenue, Suite 1440

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Vento North America, LLC (Vento) should be

permitted to establish an additional dealership for the sale of

Qianjiang motorcycles at 1333 Washington Avenue, Miami Beach,

Florida, over Respondent's protest.

PRELIMINARY STATEMENT

On September 7, 2007, a notice was published in Florida

Administrative Weekly that Vento intended "to allow the

establishment of DK Cycle, Inc., as a dealership for the sale

of . . . Qianjiang (QIAN) motorcycles at 1333 Washington

Avenue, Miami Beach ([Miami-]Dade County), Florida

33139 . . . ." 2 On September 28, 2007, Respondent filed with

Department of Highway Safety and Motor Vehicles (Department) a

"petition/complaint" protesting the establishment of this

additional dealership. On October 3, 2007, the matter was

referred to DOAH to "be heard by an Administrative Law Judge."

The final hearing was scheduled for March 26, 2008.

Petitioners and Respondent were provided with written notice of

the scheduled hearing in accordance with Section 120.569(2)(b),

Florida Statutes. Such notice was in the form of a Notice of

Hearing by Video Teleconference mailed on October 30, 2007, to

Respondent's counsel of record, Manuel Ramirez, Esquire, and to

Petitioners' representatives.

As noted above, the final hearing in this case was held, as

scheduled, on March 26, 2008. Respondent appeared at the

hearing through its counsel, Mr. Ramirez. Petitioners, on the

other hand, made no appearance.

One witness, Anabella Cabello, Respondent's president,

testified at the hearing. In addition to Ms. Cabello's

testimony, one exhibit (Respondent's Exhibit 1) was offered and

received into evidence.

At the conclusion of the evidentiary portion of the

hearing, the undersigned inquired of Respondent's counsel,

Mr. Ramirez, as to whether he would be submitting a proposed

recommended order. Mr. Ramirez responded in the negative.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Respondent is an existing franchised dealer of

Qianjiang motorcycles.

2. Its dealership is located at 7341 Collins Avenue in

Miami Beach, Florida.

3. The driving distance between Respondent's dealership

and the location of the new dealership Vento proposes to

establish is 5.6 miles.

CONCLUSIONS OF LAW

4. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

5. Vento is seeking the Department's approval of a

proposal to establish a new dealership for the sale of Qianjiang

motorcycles at 1333 Washington Avenue in Miami-Beach, Florida.

It is seeking such approval pursuant to Section 320.642, Florida

Statutes.

6. Subsection (2)(a) of Section 320.642, Florida Statutes,

provides that such approval shall be denied if:

1. A timely protest is filed by a presently

existing franchised motor vehicle dealer

with standing to protest as defined in

subsection (3); and

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 representation shall be on the

licensee.

7. Pursuant to Subsection (3)(b)1. of Section 320.642,

Florida Statutes, "if the proposed additional . . . motor

vehicle dealer is to be located in a county with a population of

more than 300,000," such as in the instant case, "[a]ny existing

motor vehicle dealer or dealers of the same line-make hav[ing] a

licensed franchise location within a radius of 12.5 miles of the

location of the proposed additional . . . motor vehicle dealer"

has standing to file a "protest," within the meaning of

Subsection (2)(a)1. of the statute.

8. With respect to the proposed new dealership in the

instant case, Respondent is such an "existing motor vehicle

dealer" who has standing to file a protest.

9. By filing its protest and establishing (through its

evidentiary presentation at hearing) its standing to do so,

Respondent effectively imposed upon Vento, by operation of the

provisions of Subsection (2)(a)2. of Section 320.642, Florida

Statutes, the burden of proving there is "inadequate

representation" in the community or territory of the proposed

new dealership.

10. Not having presented any evidence at the final

hearing, Vento failed to meet this burden of proof.

11. The approval that it is seeking in the instant case

must therefore be denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department issue a Final Order denying

Vento approval to establish a new Qianjiang motorcycle

dealership at 1333 Washington Avenue, Miami Beach, Florida.

DONE AND ENTERED this 26th day of March, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of march, 2008.

ENDNOTES

1 All references in this Recommended Order to Florida Statutes

are to Florida Statutes (2007).

2 The published notice also advised of Vento's intent to

establish, at the same location, a new dealership for the sale

of Jialing motorcycles. At the final hearing in the instant

case, Respondent clarified that its protest was directed only to

the proposed new Qianjiang motorcycle dealership.

COPIES FURNISHED :

Electra Theodorides-Bustle, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

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, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

Tallahassee, Florida 32399-0635

Manuel A. Ramirez, Esquire

Castro and Ramirez, LLC

1200 Brickell Avenue, Suite 1440

Miami, Florida 33131

Alma Gonzalez

Vento North America

6190 Cornerstone Court E, Suite 200

San Diego, California 92121

David Buzaglo

DK Cycle, Inc.

1341 Washington Avenue

Miami Beach, Florida 33139

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.