08-003988 Vento North America, Llc And H Long Investments Corp. vs. Best Buy Vehicles, Inc. Status: Closed Recommended Order on Tuesday, December 16, 2008.

Summary: Challenger to proposed new dealership failed to establish standing pursuant to the statute. The new point is not within 20 miles of existing dealership and no record of sales was provided.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VENTRO NORTH AMERICA, LLC AND )

H. LONG INVESTMENTS CORP., )

)

Petitioner, )

)

vs. ) Case No. 08-3988

)

BEST BUY VEHICLES, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice a hearing was conducted on October 30,

2008, in Vero Beach, Florida, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Heidi S. Long, President

H. Long Investments Corp. d/b/a

Tropical Scooters of Vero

4901 North U. S. Highway 1, Unit J

Vero Beach, Florida 32967

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether the proposed dealership should be approved.

PRELIMINARY STATEMENT

The Florida Department of Highway Safety and Motor Vehicles forwarded the instant case to the Division of Administrative

Hearings for formal proceedings on August 18, 2008. Thereafter,

the case was scheduled for hearing and the parties were provided

notice of the hearing location and time.

At the hearing, the Respondent, Best Buy Vehicles, Inc.

(Respondent), did not appear. The Petitioner, H. Long

Investments, Corp. d/b/a Tropical Scooters of Vero (Petitioner),

did appear and presented evidence in support of the proposed

dealership.

A transcript of the proceeding was not filed. The parties

were granted ten days from the hearing date within which to file

proposed recommended orders. By letter filed November 12, 2008,

the Respondent requested that the case be held in St. Lucie

County "due to the number of cases like this our company endures

on an annual basis." The Petitioner responded to that letter on

November 17, 2008. The Respondent's letter has been treated as a

request to re-open the record and is addressed below.

FINDINGS OF FACT

1. On August 1, 2008, in the Florida Administrative Weekly,

Volume 34, Number 31, a Notice of Publication for a New Point

Franchise Motor Vehicle Dealer in a County of Less than 300,000

Population was published. The notice provided that Vento North

America, LLC, intended to allow the establishment of H. Long

Investments Corp. d/b/a Tropical Scooters of Vero, as a

dealership for the sale of motorcycles manufactured by Qianjaing

Motorcycle Group Corp. (QINJ) at 4901 North U.S. Highway 1, Unit

J, Vero Beach (Indian River County), Florida.

2. On August 12, 2008, the Respondent timely filed a

protest of the establishment of the Petitioner's dealership and

represented that 25 percent of its retail sales were within a

20-mile straight line distance of the proposed dealership during

any 12-month period out of the 36-month period immediately

preceding the filing of the protest.

3. Based upon the Petitioner's evidence, its proposed

dealership location is not less than 21.51 miles from the

Respondent's dealership.

4. The Respondent did not establish that any of its sales

are within 20 miles of the proposed dealership.

5. The Respondent did not establish that it currently

markets any motorcycle to be sold by the proposed dealership.

More specifically, the Respondent did not offer evidence that it

has an agreement for the same line-make vehicle to be sold by the

proposed dealer.

6. Vento North America, the distributor of the motorcycle

brand/model to be sold at the proposed dealership, did not attend

the hearing.

7. Notice of the formal hearing was provided to all parties

of record at their addresses of record.

8. The Respondent did not timely contest the location,

date, or time for the hearing.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 120.569, and 120.57(1), Fla. Stat (2008).

10. Section 320.605, Florida Statutes (2008), provides:

It is the intent of the Legislature to

protect the public health, safety, and

welfare of the citizens of the state by

regulating the licensing of motor vehicle

dealers and manufacturers, maintaining

competition, providing consumer protection

and fair trade and providing minorities with

opportunities for full participation as motor

vehicle dealers.

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

part:

(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.

12. The Respondent's request for a hearing in St. Lucie

County, filed after the hearing had occurred, was untimely. If

treated as Motion to Re-Open the Record, it is denied. The

Respondent was provided timely notice of the hearing date and

location. The Respondent provided no reasonable excuse for the

failure to attend the hearing in this cause. Moreover, to

further delay the rendition of this order is prejudicial to the

Petitioner.

13. The record in this cause is devoid of any evidence

supporting the allegations set forth in the Respondent's request

for hearing. The Respondent has failed to establish standing to

challenge the proposed dealership as a matter of law.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Highway

Safety and Motor Vehicles enter a Final Order dismissing the

protest filed by the Respondent and approving the dealership

proposed by this Petitioner.

DONE AND ENTERED this 16th day of December, in Tallahassee,

Leon County, Florida.

___________________________________

J. D. PARRISH

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 16th day of December, 2008.

COPIES FURNISHED:

Electra Theodorides-Bustle, Executive Director

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

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

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Jim Buchheit

Best Buy Vehicles, Inc.

3525 South US Highway 1

Fort Pierce, Florida 34982

Heidi S. Long

H. Long Investments, Corp.

Tropical Scooters of Vero

4901 North US highway 1, Unit J

Vero Beach, Florida 32967

Alma Gonzalez

Vento North America

6190 Cornerstone Court E, Suite 200

San Diego, California 92121

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.