08-001600 Chuanl Motorcyle Usa Co., Ltd., And Usa Wholesale Scooters, Inc. vs. Power And Play Warehouse, Inc. Status: Closed Recommended Order on Wednesday, September 3, 2008.

Summary: Petitioner failed to prove that Respondent`s dealership is not providing adequate representation of the same vehicles that Petitioner wants to offer for sale in Respondent`s community; Petitioner`s application for a new dealer license must be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHUANL MOTORCYCLE USA CO., )

LTD., AND USA WHOLESALE )

SCOOTERS, INC., )

)

Petitioners, )

)

vs. )

) Case No. 08-1600

POWER & PLAY WAREHOUSE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

June 10, 2008, at sites in Tallahassee and Lauderdale Lakes,

Florida.

APPEARANCES

For Petitioner USA Wholesale Scooters, Inc.:

Noel Farbman, pro se

USA Wholesale Scooters, Inc.

2902 East Sunrise Boulevard

Fort Lauderdale, Florida 33304

For Petitioner Chuanl Motorcycle USA Co. Ltd.:

No Appearance

For Respondent: Thomas McMahon, pro se

Power & Play Warehouse, Inc.

550 North Flagler Avenue

Pompano Beach, Florida 33060

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners' proposed

motorcycle dealership would serve a community or territory in

which Respondent's dealership is not presently providing

adequate representation of the same line-make vehicles that

Petitioners would offer.

PRELIMINARY STATEMENT

On March 14, 2008, an advertisement was published in the

Florida Administrative Weekly , which gave notice that, unless a

protest were timely filed, the Department of Highway Safety and

Motor Vehicles would approve the application of Petitioner USA

Wholesale Scooters, Inc. for a license to establish a new

dealership at 2902 East Sunrise Boulevard, Fort Lauderdale,

Florida, where motorcycles manufactured by Petitioner Chuanl

Motorcycle USA, Ltd. would be offered for sale. On March 27,

2008, Respondent Power & Play Warehouse, Inc. filed a written

complaint with the Department, protesting Petitioner's

application. The Department immediately forwarded Respondent's

complaint to the Division of Administrative Hearings ("DOAH")

for a hearing.

The final hearing took place on June 10, 2008, as

scheduled, with both parties present. Noel Farbman, who is an

owner of Petitioner, testified on his company's behalf.

Petitioner presented no other evidence. Thomas McMahon

testified on behalf of Respondent, of which he is the owner. In

addition, Respondent's Exhibits 1 and 2 were admitted into

evidence without objection.

The final hearing transcript was filed with DOAH on

August 15, 2008. The parties were instructed to submit their

respective Proposed Recommended Orders on or before August 25,

2008, which they did.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. On March 14, 2008, an advertisement was published in

the Florida Administrative Weekly , which gave notice that,

unless a protest were timely filed, the Department of Highway

Safety and Motor Vehicles ("Department") intended to approve the

application of Petitioner USA Wholesale Scooters, Inc.

("Wholesale Scooters") for a license to establish a new

dealership at 2902 East Sunrise Boulevard, Fort Lauderdale,

Florida (the "Proposed New Point"), where motorcycles

manufactured by Petitioner Chuanl Motorcycle USA, Ltd.

("Chuanl") would be offered for sale.

2. Respondent Power & Play Warehouse, Inc. ("Power &

Play"), which is licensed to operate a dealership, under a

franchise agreement, for the sale of Chuanl motorcycles in

Pompano Beach, Florida (the "Existing Dealership"), timely filed

a written complaint with the Department, protesting the intended

approval of the Proposed New Point.

3. The Proposed New Point and the Existing Dealership are

both situated in Broward County, Florida. It is undisputed that

the population of Broward County exceeds 300,000.

4. At the final hearing, the parties stipulated that the

Proposed New Point would be located within 12.5 miles of the

Existing Dealership.

5. Wholesale Scooters failed to present persuasive

evidence demonstrating that the Existing Dealership is not

providing adequate representation of Chuanl motorcycles in Fort

Lauderdale, Pompano Beach, Broward County, or any other

conceivably relevant community or territory.

CONCLUSIONS OF LAW

6. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

7. Section 320.642, Florida Statutes, provides as follows:

(2)(a) An application [for a license to

establish an additional motor vehicle

dealership within a community or territory

where the same line-make vehicle is

presently represented by a franchised motor

vehicle dealership] 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); 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[, that is, the applicant].

(Emphasis added.)

8. An existing franchised dealer has standing to protest

an application to establish a new dealership if (a) the proposed

dealership would sell or service the same line-make vehicles for

which the existing dealer has a franchise agreement and (b) at

least one other requirement or condition is met. See §

320.642(3), Fla. Stat. One such additional condition is that

the "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" new dealership. See

320.642(3)(b)1., Fla. Stat. An existing dealer which satisfies

this particular condition, as does Power & Play, shall have

standing to bring a protest against the proposed dealership,

provided "the proposed additional . . . motor vehicle dealer is

to be located," as here, "in a county with a population of more

than 300,000." Id.

9. Power & Play meets the foregoing conditions and thus

has standing to protest.

10. Because Wholesale Scooters failed to prove inadequate

representation, Power & Play's protest effectively blocks the

establishment of the Proposed New Point. The Department must

deny Wholesale Scooters' application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order

denying Wholesale Scooters' application for a license to operate

a new dealership at 2902 East Sunrise Boulevard, Fort

Lauderdale, Florida, where Chuanl motorcycles would be offered

for sale.

DONE AND ENTERED this 3rd day of September, 2008, in

Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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.stae.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of September, 2008.

COPIES FURNISHED :

Noel Farbman

USA Wholesale Scooters, Inc.

2902 East Sunrise Boulevard

Fort Lauderdale, Florida 33304

Lingbin Chen

Chuanl Motorcycle USA Co, Ltd.

9886 Chartwell Drive

Dallas, Texas 75243

Thomas McMahon

Power & Play Warehouse, Inc.

550 North Flagler Avenue

Pompano Beach, Florida 33060

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

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B-439

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.