08-003631 Sunl Group, Inc., And Auto Stop, Inc., D/B/A Motorsports Depot vs. Mobility Tech, Inc., D/B/A Charlie`s Scooter Depot Status: Closed Recommended Order on Thursday, March 5, 2009.

Summary: No evidence was presented that the protestor has standing to challenge the establishment of new dealerships. The protests should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNL GROUP, INC., AND AUTO )

STOP, INC., d/b/a MOTORSPORTS )

DEPOT, )

)

Petitioners, )

)

vs. ) Case Nos. 08-3631

) 08-3632

MOBILITY TECH, INC., d/b/a )

CHARLIE’S SCOOTER DEPOT, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 5, 2009, an administrative hearing in these

cases was conducted by video teleconference between Tallahassee

and Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge (ALJ), Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner SunL Group, Inc.:

(No appearance)

For Petitioner Auto Stop, Inc., d/b/a Motorsports Depot:

(No appearance)

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

The issue in these cases is whether an application for

motor vehicle dealer licenses filed by SunL Group, Inc., and

Auto Stop, Inc., d/b/a Motorsports Depot, should be approved.

PRELIMINARY STATEMENT

By notices published in the Florida Administrative Weekly

(Volume 34, Number 29; July 18, 2008), the Department of Highway

Safety and Motor Vehicles (Department) gave notice that SunL

Group, Inc. (SunL Group), was seeking to establish two new point

motor vehicle dealerships in Lutz, Florida, with Auto Stop,

Inc., d/b/a Motorsports Depot (Motorsports Depot). One of the

dealerships was for the sale of motorcycles manufactured by

Chunl Motorcycle Manufacturing Co. Ltd. (CHUA). The other

dealership was for the sale of motorcycles manufactured by

Shanghai Meitan Motorcycle Manufacturing Co. Ltd. (MEIT).

Challenges to the establishment of the dealerships were

filed with the Department by an existing motorcycle dealership,

Mobility Tech, Inc., d/b/a Charlie's Scooter Depot (Scooter

Depot).

By letters dated July 23, 2008, the Department forwarded

the challenges to the DOAH. On July 24, 2008, Initial Orders

were issued, directing the parties to identify the anticipated

length of the hearings and dates upon which the parties were

available. No responses were filed by either party.

ALJ Carolyn Holifield thereafter scheduled the cases for hearing

and subsequently consolidated the cases and issued Amended

Notices of Hearing. The notices were not returned and were

apparently delivered to the addresses of record for the parties.

The consolidated cases were transferred to the undersigned

ALJ on January 29, 2009.

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

party. DOAH contacted the identified representatives for

Motorsports Depot and Scooter Depot and was advised that neither

party would be present for the hearing.

There were no witnesses or exhibits admitted into evidence.

No transcript of the hearing was filed. No proposed recommended

orders were filed.

FINDINGS OF FACT

1. There was no evidence presented at the hearing to

establish that Scooter Depot has a franchise agreement to sell

or service Chunl Motorcycle Manufacturing Co. Ltd. (CHUA) motor

vehicles, a line-make to be sold by Motorsports Depot.

2. There was no evidence presented at the hearing to

establish that Scooter Depot has a franchise agreement to sell

or service Shanghai Meitan Motorcycle Manufacturing Co. Ltd.

(MEIT) motor vehicles, a line-make to be sold by Motorsports

Depot.

3. There was no evidence presented at the hearing that the

Scooter Depot dealership is physically located so as to meet the

statutory requirements for standing to protest the establishment

of the new point franchise motor vehicle dealerships.

CONCLUSIONS OF LAW

4. 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).

5. Section 320.642, Florida Statutes (2008), provides, in

relevant part, as follows:

(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.

* * *

(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 or serviced 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:

1. The proposed additional or relocated

motor vehicle dealer is to be located in the

area designated or described as the area of

responsibility, or such similarly designated

area, including the entire area designated

as a multiple-point area, in the franchise

agreement or in any related document or

commitment with the existing motor vehicle

dealer or dealers of the same line-make as

such agreement existed upon October 1, 1988;

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; or

3. Any existing motor vehicle dealer or

dealers of the same line-make can establish

that during any 12-month period of the 36-

month period preceding the filing of the

licensee's application for the proposed

dealership, such dealer or its predecessor

made 25 percent of its retail sales of new

motor vehicles to persons whose registered

household addresses were located within a

radius of 20 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided such existing

dealer is located in the same county or any

county contiguous to the county where the

additional or relocated dealer is proposed

to be located.

(b) If the proposed additional or relocated

motor vehicle dealer is to be located in a

county with a population of more 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:

1. Any 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 additional or relocated motor

vehicle dealer; or

2. Any existing motor vehicle dealer or

dealers of the same line-make can establish

that during any 12-month period of the 36-

month period preceding the filing of the

licensee's application for the proposed

dealership, such dealer or its predecessor

made 25 percent of its retail sales of new

motor vehicles to persons whose registered

household addresses were located within a

radius of 12.5 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided such existing

dealer is located in the same county or any

county contiguous to the county where the

additional or relocated dealer is proposed

to be located.

6. The licensees in these cases are SunL Group and

Motorsports Depot. See §§ 320.60(8) and 320.61, Fla. Stat.

(2008).

7. The alleged existing franchised motor vehicle dealer is

Scooter Depot.

8. Scooter Depot failed to present any evidence at the

hearing to establish that it meets the statutory requirements to

establish standing to protest the establishment of the new point

franchise motor vehicle dealerships at issue in these cases.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Motor Vehicles enter a final order dismissing the protests filed

by Mobility Tech, Inc., d/b/a Charlie's Scooter Depot, in these

cases.

DONE AND ENTERED this 5th day of March, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 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

Mei Zhou

SunL Group, Inc.

8551 Ester Boulevard

Irving, Texas 75063

Carlos Urbizu

Mobility Tech, Inc., d/b/a Charlie’s

Scooter Depot

5720 North Florida Avenue, Unit 2

Tampa, Florida 33604

Robert L. Sardegna

Auto Shop, Inc., d/b/a

Motorsports Depot

17630 US 41 North

Lutz, Florida 33549

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.