08-003784 Ls Motorsports, Llc And Michael J. Konczal, Inc. vs. Seminole Scooters, Inc. Status: Closed Recommended Order on Thursday, February 19, 2009.

Summary: No evidence exists that the franchise dealer is not adequately representing line-make.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LS MOTORSPORTS, LLC, AND )

MICHAEL J. KONCZAL, INC., )

)

Petitioners, )

)

vs. ) Case No. 08-3784

)

SEMINOLE SCOOTERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On January 22, 2009, an administrative hearing in this case

was held in St. Petersburg, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner LS MotorSports, LLC:

(No appearance)

For Petitioner Michael J. Konczal, Inc:

Michael Konczal, pro se

Michael J. Konczal, Inc.

1801 Twenty-Eighth Street, North

St. Petersburg, Florida 33715

For Respondent: David Dubin, pro se

Seminole Scooters, Inc.

6227 Park Boulevard

Pinellas Park, Florida 33781

STATEMENT OF THE ISSUE

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

vehicle dealer license filed by LS Motorsports, LLC, and

Michael J. Konczal, Inc., should be approved.

PRELIMINARY STATEMENT

By notice 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

LS MotorSports, LLC (LS MotorSports), was seeking to establish a

new point motor vehicle dealership in St. Petersburg, Florida,

with Michael J. Konczal, Inc., for the line-make "Chongqing

Lifan Industry Group (CHOL)." A challenge to the establishment

of the dealership was filed with the Department by an existing

motorcycle dealership, Seminole Scooters, Inc. (Respondent).

By letter dated July 31, 2008, the Department forwarded the

challenge to the Division of Administrative Hearings. On

August 1, 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. The Respondent

filed a response to the Initial Order, requesting that the

hearing be scheduled in St. Petersburg, Florida, and the hearing

was scheduled accordingly.

At the hearing, Petitioner, Michael Konczal, testified on

his own behalf. The Respondent's representative testified on

behalf of the Respondent. No exhibits were offered into

evidence.

No transcript of the hearing was filed. The Respondent

filed a Proposed Recommended Order.

FINDINGS OF FACT

1. LS MotorSports is seeking to establish a new point

motor vehicle dealership in St. Petersburg, Florida, for line-

make Chongqing Lifan Industry Group (CHOL).

2. The Respondent is an existing franchise motor dealer

for line-make Chongqing Lifan Industry Group (CHOL), located

within 12.5 miles of the proposed new point motor vehicle

dealership location. The majority of the Respondent's vehicle

sales come from within a 12.5-mile radius of the proposed

dealership.

3. The Respondent timely filed a protest of

LS MotorSports’ proposed dealership.

4. There is no evidence that the Respondent is not

providing adequate representation within the territory of the

motor vehicles at issue in this proceeding.

CONCLUSIONS OF LAW

5. 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).

6. Subsection 320.642(2)(a), Florida Statutes (2008),

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)

7. The licensees in this case are Petitioners,

LS Motorsports, LLC, and Michael J. Konczal, Inc. See

§§ 320.60(8) and 320.61, Fla. Stat. (2008).

8. As the licensees, the Petitioners have the burden of

establishing compliance with applicable statutory requirements

by a preponderance of the evidence presented at the hearing.

§ 320.642(2)(a)2., Fla. Stat. (2008). The Petitioners have

failed to establish that the Respondent is not providing

adequate representation of the line-make Chongqing Lifan

Industry Group (CHOL).

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 19th day of February, 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 19th 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

Mathu Solo

LS Motorsports, LLC

10215 South Sam Houston Parkway West

Suite 100

Houston, Texas 77071

Michael Konczal

Michael J. Konczal, Inc.

1801 Twenty-Eighth Street, North

St. Petersburg, Florida 33715

David Dubin

Seminole Scooters, Inc.

6227 Park Boulevard

Pinellas Park, Florida 33781

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.