08-004547 Moto Dealer Import, Llc And Big Boys Toys Florida, Llc vs. Moto Import Distributors, Llc Status: Closed Recommended Order on Wednesday, April 15, 2009.

Summary: Petitioner did not appear at the hearing and there was no evidence to establish entitlement to a franchise.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MOTO DEALER IMPORT, LLC AND BIG )

BOYS TOYS FLORIDA, LLC, )

)

Petitioners, )

)

vs. ) Case No. 08-4547

)

MOTO IMPORT DISTRIBUTORS, INC., )

)

Respondent. ) )

RECOMMENDED ORDER

Pursuant to Notice, this cause came on for formal hearing

before Diane Cleavinger, duly-designated Administrative Law

Judge, Division of Administrative Hearings on April 1, 2009, in

Panama City, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Wayne Wooten

Moto Imports Distributors, LLC

12202 Hutchinson Boulevard, Suite 72

Panama City Beach, Florida 32407

STATEMENT OF THE ISSUE

The issue in this cause is whether Petitioners are entitled

to a motor vehicle dealership that is proposed to be located in

Panama City Beach, Florida.

PRELIMINARY STATEMENT

On August 22, 2008, Moto Dealer Import, LLC, and Big Boy

Toys Florida, LLC (Petitioners) published a Notice of

Publication for a New Point Franchise Motor Vehicle Dealer in a

County of Less than 300,000 Population in the Florida

Administrative Weekly. The proposed dealership was to be

located in Panama City Beach, Florida. On September 7, 2008,

Moto Import Distributors, LLC (Respondent) filed a Petition of

Complaint in letter form, protesting the establishment of the

franchise at its proposed location. The case was forwarded to

the Division of Administrative Hearings to conduct the final

hearing in this matter.

This cause came on for hearing as noticed. After waiting

more than 15 minutes, Petitioners failed to appear to prosecute

their claim. Respondent, likewise, did not appear.

FINDINGS OF FACT

1. On November 4, 2008, a Notice of Hearing setting the

date, time and location of final hearing was issued in this

case. The Notice of Hearing was mailed to the last known, valid

addresses of the Petitioners, which were also the addresses

provided in Petitioners' Notice of Publication. Neither Notice

of Hearing was returned.

2. This cause came on for hearing as noticed. After

waiting more than 15 minutes, Petitioners failed to appear to

prosecute their claim. There has been no communication from the

Petitioners, before, during, or since the hearing to indicate

that they would not be attending the final hearing.

3. Because of Petitioners' failure to appear, there was no

evidence to demonstrate that Petitioners are entitled to a

franchise motor vehicle dealership in Panama City Beach,

Florida. Absent such evidence, the establishment of the

proposed dealership should be denied.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

5. The Department of Highway Safety and Motor Vehicles

(Department) is the agency responsible for regulating the

licensing and franchising of motor vehicles dealers. §§ 320.60-

320.70, Fla. Stat. (2008).

6. Section 320.642(1), Florida Statutes, requires a motor

vehicle dealer who proposes to establish an additional motor

vehicle dealership within an area already represented by the

same line-make vehicle to give written notice to the Department

of its intent to establish a new franchise. The statute also

provides that any affected dealership may protest the

establishment of a new franchise in its territory.

7. Section 320.642(2), Florida Statutes, establishes the

standards of review to determine if establishment of a new,

competing motor vehicle franchise should be granted. Section

320.642(2)(a), Florida Statutes, states in relevant part:

An application for a motor vehicle dealer

license in any community or territory shall

be denied when:

* * *

2. The licensee fails to show that the

existing franchise dealer . . . are not

providing adequate representation of such

line-make motor vehicles in such . . .

territory. The burden of proof in

establishing inadequate representation shall

be on the licensee. (emphasis supplied)

8. In this case, Petitioners, as the licensees, failed to

appear at the hearing after proper Notice of the hearing was

issued. Because Petitioners failed to appear, no evidence that

Respondent was not adequately representing the territory in

which the proposed dealership intends to locate was presented.

Absent such evidence, Petitioners have not carried their burden

of proof in this matter and the establishment of the proposed

franchise should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Department of Highway Safety and Motor Vehicles denying the

establishment of Petitioners' proposed franchise.

DONE AND ENTERED this 15th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 15th day of April, 2009.

COPIES FURNISHED :

Jack Lin

Moto Dealer Import, LLC

4998-B South Royal Atlanta Drive

Tucker, Georgia 30084

Wayne Wooten

Moto Import Distributors, LLC

12202 Hutchison Boulevard, Suite 72

Panama City Beach, Florida 32407

Rap Peavy

Big Boys Toys Florida, LLC

1312 Thomas Drive

Panama City Beach, Florida 32408

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Robin Lotane, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

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

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.