08-002736 Gator Moto, Llc And Gator Moto, Llc vs. Austin Global Enterprises, Llc,D/B/A New Scooters 4 Less Status: Closed Recommended Order on Monday, February 16, 2009.

Summary: Petitioner did not meet its burden of showing that Respondent is not providing adequate representation for the line-make of the motorcycle at issue.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GATOR MOTO, LLC AND GATOR MOTO, )

LLC, )

)

Petitioners, )

)

vs. ) Case Nos. 08-2735

) 08-2736

AUSTIN GLOBAL ENTERPRISES, LLC,d/b/a NEW SCOOTERS 4 LESS, )

)

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on February 9,

2009, in Gainesville, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Collin Austin

Austin Global Enterprise, LLC

118 Northwest 14th Avenue, Suite D

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue is whether Petitioner's applications to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN), should be granted.

PRELIMANARY STATEMENT

In the Florida Administrative Weekly , Volume 34, Number 21,

May 23, 2008, the Department of Highway Safety and Motor

Vehicles (DHSMV) published two Notices of Publication for a New

Point Franchise Motor Vehicle Dealer in a County of Less than

300,000 Population. Said notices advised that Petitioner Gator

Moto, LLC and Gator Moto, LLC (Petitioner) intended to establish

new dealerships for the sale of motorcycles manufactured by

Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke

Motorcycle Co., Ltd. (SHEN).

On or about June 3, 2008, Respondent Austin Global

Enterprises, LLC, d/b/a New Scooters 4 Less (Respondent) filed

two complaints with DHSMV about the proposed new motorcycle

dealerships. DHSMV referred both complaints to the Division of

Administrative Hearings on June 10, 2008.

On July 2, 2008, Respondent filed its Compliance with

Initial Order.

On July 7, 2008, Petitioner filed Petitioner's Compliance

with Initial Order Division of Administrative Hearings (DOAH)

Case Nos. 08-2735 and 08-2736. This is the only communication

that DOAH has received from Petitioner.

On July 23, 2008, Administrative Law Judge Barbara J.

Staros entered an Order of Consolidation for DOAH Case Nos.

08-2735 and 08-2736. On July 24, 2008, Judge Staros issued a

Notice of Hearing, scheduling a final hearing on December 4,

2008.

On November 26, 2008, Respondent filed its Compliance with

Pre-hearing Instructions. Petitioner did not respond to the

Order of Pre-hearing Instructions.

On December 1, 2008, Judge Staros issued an Amended Notice

of Hearing. The amended notice only changed the commencement

time for the hearing.

DOAH subsequently transferred these consolidated cases to

the undersigned. On the morning of the December 4, 2008,

hearing, DHSMV advised the undersigned's office that DHSMV had

failed to arrange for the appearance of a court reporter at the

hearing. Accordingly, the undersigned issued an Order Granting

Continuance and requiring the parties to confer and provide DOAH

with mutually-agreeable dates for re-scheduling the hearing.

On December 17, 2008, Respondent filed its unilateral

Compliance with Order Granting Continuance. Respondent filed

this pleading after an unsuccessful attempt to confer with

Petitioner.

On December 18, 2008, the undersigned issued a Notice of

Hearing and Order of Pre-hearing Instruction. The notice

scheduled the hearing for February 9, 2008.

On February 3, 2007, Respondent filed its unilateral

Compliance with Order of Pre-hearing Instructions. Petitioner

did not file a response to the Order of Pre-hearing

Instructions.

When the hearing commenced, Petitioner did not make an

appearance. Respondent made an appearance and presented the

testimony of Colin Austin, Respondent's Managing Member.

Respondent did not offer any exhibits.

The hearing transcript was not filed with DOAH. Neither

party filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent has standing to protest Petitioner's

applications pursuant to Section 320.642(3)(a)2., Florida

Statutes (2008).

2. According to DHSMV's published notice, Petitioner

intended to establish two new motorcycle dealerships at

2106 Northwest 67th Place, Suite 15, Gainesville, Florida, on or

after May 9, 2008. This location is only 4.5 miles from

Respondent's place of business.

3. At some point in time, Petitioner relocated its

business to 7065 Northwest 22nd Street, Suite A, Gainesville,

Florida. This location is only 5.3 miles from Respondent's

place of business.

4. Petitioner's application indicated that Petitioner

intended to establish itself as a dealer of SHEN and JMSTAR

motorcycles. Currently, Respondent sells those motorcycles

under License No. VF/1020597/1.

5. Respondent currently supplies itself with SHEN and

JMSTAR products from a United States distributor. Respondent

has a good faith belief that Petitioner intends to import the

motorcycles and related products directly from the Chinese

manufacturers. In that case, Petitioner would be able to sell

the products at a lower price than Respondent and thereby deny

Respondent the opportunity for reasonable growth.

6. Petitioner did not notify DOAH about a change of

address. DOAH's notices and orders directed to Petitioner at

its address of record have not been returned. Petitioner has

not communicated with DOAH since filing a response to the

Initial Order. Petitioner did not make an appearance at the

hearing. Apparently, Petitioner has abandoned its applications

to establish the new dealerships.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 320.699, 120.569, and 120.57(1),

Florida Statutes (2008).

8. Section 320.642, Florida Statutes (2008), sets forth

the procedure for establishing proposed motor vehicle

dealerships or permitting the relocations of such dealerships as

follows in pertinent part:

(1) Any licensee who proposes to

establish an additional motor vehicle

dealership or permit the relocation of an

existing dealer to a location within a

community or territory where the same line-

make vehicle is presently represented by a

franchised motor vehicle dealer or dealers

shall give written notice of its intention

by certified mail to the department. Such

notice shall state:

(a) The specific location at which the

additional or relocated motor vehicle

dealership will be established.

(b) The date on or after which the

licensee intends to be engaged in business

with the additional or relocated motor

vehicle dealer at the proposed location.

(c) The identity of all motor vehicle

dealers who are franchised to sell the same

line-make vehicle with licensed locations in

the county or any contiguous county to the

county where the additional or relocated

motor vehicle dealer is proposed to be

located.

(d) The names and addresses of the

dealer-operator and principal investors in

the proposed additional or relocated motor

vehicle dealership.

Immediately upon receipt of such notice the

department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice shall state

that a petition or complaint by any dealer

with standing to protest pursuant to

subsection (3) must be filed not more than

30 days from the date of publication of the

notice in the Florida Administrative Weekly.

The published notice shall describe and

identify the proposed dealership sought to

be licensed, and the department shall cause

a copy of the notice to be mailed to those

dealers identified in the licensee's notice

under paragraph (c).

(2)(a) 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.

(b) In determining whether the

existing franchised motor vehicle dealer or

dealers are providing adequate

representation in the community or territory

for the line-make, the department may

consider evidence which may include, but is

not limited to:

1. The impact of the establishment of

the proposed or relocated dealer on the

consumers, public interest, existing

dealers, and the licensee; provided,

however, that financial impact may only be

considered with respect to the protesting

dealer or dealers.

2. The size and permanency of

investment reasonably made and reasonable

obligations incurred by the existing dealer

or dealers to perform their obligations

under the dealer agreement.

3. The reasonably expected market

penetration of the line-make motor vehicle

for the community or territory involved,

after consideration of all factors which may

affect said penetration, including, but not

limited to, demographic factors such as age,

income, education, size class preference,

product popularity, retail lease

transactions, or other factors affecting

sales to consumers of the community or

territory.

4. Any actions by the licensees in

denying its existing dealer or dealers of

the same line-make the opportunity for

reasonable growth, market expansion, or

relocation, including the availability of

line-make vehicles in keeping with the

reasonable expectations of the licensee in

providing an adequate number of dealers in

the community or territory.

5. Any attempts by the licensee to

coerce the existing dealer or dealers into

consenting to additional or relocated

franchises of the same line-make in the

community or territory.

6. Distance, travel time, traffic

patterns, and accessibility between the

existing dealer or dealers of the same line-

make and the location of the proposed

additional or relocated dealer.

7. Whether benefits to consumers will

likely occur from the establishment or

relocation of the dealership which the

protesting dealer or dealers prove cannot be

obtained by other geographic or demographic

changes or expected changes in the community

or territory.

8. Whether the protesting dealer or

dealers are in substantial compliance with

their dealer agreement.

9. Whether there is adequate

interbrand and intrabrand competition with

respect to said line-make in the community

or territory and adequately convenient

consumer care for the motor vehicles of the

line-make, including the adequacy of sales

and service facilities.

10. Whether the establishment or

relocation of the proposed dealership

appears to be warranted and justified based

on economic and marketing conditions

pertinent to dealers competing in the

community or territory, including

anticipated future changes.

11. The volume of registrations and

service business transacted by the existing

dealer or dealers of the same line-make in

the relevant community or territory of the

proposed dealership.

(3) An existing franchised motor

vehicle dealer or dealers shall have

standing to protest a proposed additional or

relocated motor vehicle dealer where the

existing motor vehicle dealer or dealers

have a franchise agreement for the same

line-make vehicle to be sold by the proposed

additional or relocated motor vehicle dealer

and are physically located so as to meet or

satisfy any of the following requirements or

conditions:

(a) If the proposed additional or

relocated motor vehicle dealer is to be

located in a county with a population of

less than 300,000 according to the most

recent data of the United States Census

Bureau or the data of the Bureau of Economic

and Business Research of the University of

Florida:

* * *

2. The existing motor vehicle dealer or

dealers of the same line-make have a

licensed franchise location within a radius

of 20 miles of the location of the proposed

additional or relocated motor vehicle

dealer;

9. Respondent met its burden of proving that it had

standing to protest Petitioner's applications. On the other

hand, Petitioner has not met its burden of establishing that

Respondent is not providing adequate representation for the

JMSTAR and SHEN motorcycles. See § 320.642(2)(a)2., Fla. Stat.

(2008).

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

That the Department of Highway Safety and Motor Vehicles

enter a final order denying Petitioner's applications.

DONE AND ENTERED this 16th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February, 2009.

COPIES FURNISHED :

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Collin Austin

Austin Global Enterprise, LLC

118 Northwest 14th Avenue, Suite D

Gainesville, Florida 32601

Justin Jackrel

Gator Moto, LLC

4337 Northwest 35th Terrace

Gainesville, Florida 32605

Justin Jackrel

Gator Moto, LLC

2106 Northwest 67th Place, Suite 15

Gainesville, Florida 32653

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.