08-004244 Ls Motorsports, Llc And Michael J. Konczal, Inc. vs. Scooter Escapes Status: Closed Recommended Order on Friday, April 3, 2009.

Summary: There was no evidence that the existing dealer does not adequately represent the line-make. The application for the establishment of a new franchise should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LS MOTORSPORTS, LLC AND MICHAEL )

J. KONCZAL, INC., )

)

Petitioners, )

)

vs. ) Case No. 08-4244

)

SCOOTER ESCAPES, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 5, 2009, an administrative hearing in this case

was held in Tallahassee, 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:

(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 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 "Jiangsu Linhai

Power Machinery Group (LINH)." A challenge to the establishment

of the dealership was filed with the Department by an existing

motorcycle dealership, Scooter Escapes (Respondent).

By letter dated August 25, 2008, the Department forwarded

the challenge to the Division of Administrative Hearings. On

August 28, 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 Order stated

that failure to respond would be deemed a waiver of venue rights

in which event the hearing would be scheduled in Tallahassee.

No response to the Initial Order was filed. The hearing was

scheduled in Tallahassee for March 5, 2009, a date in accordance

with Section 320.699(2), Florida Statutes (2008).

At the hearing, there was no appearance by, or on behalf

of, either Petitioner. The Respondent's owner, Chris Densmore,

testified on behalf of the Respondent. No exhibits were offered

into evidence. No transcript of the hearing was filed. No

Proposed Recommended Orders were filed.

FINDINGS OF FACT

1. LS MotorSports is seeking to establish a new point

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

make LINH.

2. The Respondent is an existing franchise motor vehicle

dealer for line-make LINH, 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 LINH.

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 3rd day of April, 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 3rd day of April, 2009.

COPIES FURNISHED :

Electra Theodorides-Bustle, Executive Director

Department of Highway Safety and

Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel

Department of Highway Safety and

Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Chris Densmore

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

1450 1st Avenue North

St. Petersburg, Florida 33705

Mathu Solo

LS Motorsports, LLC

10215 South Sam Houston Parkway West, Suite 100

Houston, Texas 77071

Michael Konczal

Michael J. Konczal, Inc.

1801 28 Street North

St. Petersburg, Florida 33715

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.