08-002474 Lambretta International, Llc And Retro Unlimited, Inc. vs. Scooter Escapes, Llc, D/B/A Scooter Escapes Status: Closed Recommended Order on Tuesday, August 26, 2008.

Summary: No evidence was presented that existing dealership does not adequately represent make.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMBRETTA INTERNATIONAL, LLC, )

AND RETRO UNLIMITED, INC., )

)

Petitioners, )

)

vs. ) Case No. 08-2474

)

SCOOTER ESCAPES, LLC, d/b/a SCOOTER ESCAPES, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On July 30, 2008, an administrative hearing in this case

was held in Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioners: (No appearance)

For Respondent: Chris Densmore, pro se

Scooter Escapes, LLC, d/b/a

Scooter Escapes

1450 1st Avenue North

St. Petersburg, Florida 33705

STATEMENT OF THE ISSUE

The issue in the case is whether an application for a motor

vehicle dealer license filed by Lambretta International, LLC,

and Retro Unlimited, Inc., should be approved.

PRELIMINARY STATEMENT

By Notice published in the Florida Administrative Weekly

(Volume 34, Number 15, April 11, 2008) the Department of Highway

Safety and Motor Vehicles (Department) gave notice that

Petitioner Lambretta International, LLC, was seeking to

establish a new point motor vehicle dealership in

St. Petersburg, Florida, with Petitioner Retro Unlimited, Inc.

A challenge to the establishment of the dealership was filed

with the Department by an existing motorcycle dealership,

Scooter Escapes, LLC, d/b/a Scooter Escapes (Respondent).

By letter dated May 16, 2008, the Department forwarded the

challenge to DOAH. On May 21, 2008, an Initial Order was

issued, directing the parties to identify the anticipated length

of the hearing and dates upon which the parties were available.

No response was filed by either party. The Administrative Law

Judge thereafter scheduled the hearing for July 30, 2008, in

Tallahassee, Florida. No party filed any objection related to

the date or location of the scheduled hearing.

At the time of the hearing, there was no appearance by

Petitioners Lambretta International, LLC, or Retro Unlimited,

Inc. Chris Densmore, the owner of the Respondent, appeared at

the hearing to represent the Respondent.

There were no witnesses or exhibits admitted into evidence.

No transcript of the hearing was filed. No proposed recommended

orders were filed.

FINDING OF FACT

1. There is no evidence that the existing franchise dealer

is not providing adequate representation within the territory of

the motor vehicles at issue in this proceeding.

CONCLUSIONS OF LAW

2. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2008).

3. Subsection 320.642(2)(a), Florida Statutes (2007),

provides as follows:

An application for a motor vehicle dealer

license in any community or territory 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. (Emphasis supplied)

4. The licensee in this case is Petitioner Lambretta

International, LLC. See §§ 320.60(8) and 320.61, Fla. Stat.

(2007).

5. As the licensee, Petitioner Lambretta International,

LLC, has the burden of establishing compliance with applicable

statutory requirements by a preponderance of the evidence.

Dept. of Banking and Finance, Div. of Securities and Investor

Protection v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

The failure to appear at the hearing or to otherwise provide

competent evidence precludes the Petitioners from meeting the

burden in this case. Accordingly, the application for a motor

vehicle dealer license at issue in this proceeding must be

denied.

6. On July 28, 2008, two days prior to the hearing,

various documents were filed with DOAH which appear to allege

that the line-make at issue in this proceeding is not the same

as the line-make sold by the Respondent. The documents are

uncorroborated hearsay and can not serve as the basis for any

factual findings in this case. See § 120.57(1)(c), Fla. Stat.

(2007).

RECOMMENDATION

Based on the foregoing Finding of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Highway Safety and

Motor Vehicles enter a final order denying the application for

establishment of the motor vehicle dealer franchise at issue in

this case.

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

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 August, 2008.

COPIES FURNISHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Caroline Khurana

Lambretta International, LLC

14339 Lake City Way Northeast

Seattle, Washington 98125

Chris Densmore

Scooter Escapes, LLC, d/b/a Scooter Escapes

1450 1st Avenue North

St. Petersburg, Florida 33705

Edward G. Dreyer, III

Retro Unlimited, Inc.

3200 Dr. Martin Luther King, Jr. Street North

St. Petersburg, Florida 33704

Carl A. Ford, Director

Division of Motor Vehicles

Highway Safety and Motor Vehicles

Neil Kirkman Building, Room B-439

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel

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.