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08-004881 Cf Moto Powersports And Mega Power Sports Corp vs. Action Orlando Motorsports
 Status: Closed
Recommended Order on Wednesday, April 29, 2009.

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Summary: No evidence was presented that the existing motorcycle dealership does not adequately represent line-make in the territory of the proposed dealership.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CF MOTO POWERSPORTS AND MEGA )

14POWER SPORTS CORP., )

18)

19Petitioners, )

21)

22vs. ) Case No. 08-4881

27)

28ACTION ORLANDO MOTORSPORTS, )

32)

33Respondent. )

35)

36RECOMMENDED ORDER

38On April 15, 2009, an administrative hearing in this case

48was held in Tallahassee, Florida, with Respondent appearing by

57telephone, before Lawrence P. Stevenson, Administrative Law

64Judge, Division of Administrative Hearings (DOAH).

70APPEARANCES

71For Petitioners: No appearance

75For Respondent: James Sursely, pro se

81Action Orlando Motorsports

84306 West Main Street

88Apopka, Florida 32712

91STATEMENT OF THE ISSUE

95The issue is whether Petitioners are entitled to a motor

105vehicle dealership that is proposed to be located in Longwood,

115Florida.

116PRELIMINARY STATEMENT

118On September 5, 2008, CF Moto Powersports, Inc. and Mega

128Power Sports Corp. (Petitioners) published a Notice of

136Publication for a New Point Franchise Motor Vehicle Dealer in a

147County of More than 300,000 Population in the Florida

157Administrative Weekly . Respondent Action Orlando Motorsports

164filed a protest with the Department of Highway Safety and Motor

175Vehicles (Department) on September 17, 2008. By letter dated

184September 25, 2008, the Department referred the matter to DOAH

194to assign an administrative law judge to conduct a hearing "for

205the sole purpose of determining the propriety of the protest

215regarding issues specifically within the purview of Sections

223320.642 and 320.699, Florida Statutes."

228The hearing was convened as scheduled. Respondent was

236present and ready to proceed. Petitioners made no appearance.

245James Sursely, the owner of Action Orlando Motorsports,

253testified at the hearing.

257The hearing was not transcribed. Respondent waived the

265filing of a proposed recommended order. All references to the

275Florida Statutes are to the 2008 edition unless otherwise

284indicated.

285FINDINGS OF FACT

2881. Respondent is an existing franchised dealer of

296motorcycles manufactured by Chunfeng Holding Group Co. Ltd.

304(CFHG). Respondent also has an existing distribution

311arrangement with Petitioner CF Moto Powersports, Inc.

3182. Petitioners have proposed the establishment of a new

327dealership to sell the same line and make of motorcycles as

338those sold by Respondent.

3423. Respondent's dealership is located at 306 West Main

351Street, Apopka, Florida 32712.

3554. Petitioners' proposed dealership would be located at

363821 South Highway 17-92, Suite 101, Longwood, Florida 32750.

3725. The proposed dealership is within a 12.5-mile radius of

382Respondent's dealership.

3846. Respondent has standing to protest the establishment of

393the proposed dealership.

396CONCLUSIONS OF LAW

3997. DOAH has jurisdiction over the parties and the subject

4098. The Department is the agency responsible for regulating

418the licensing and franchising of motor vehicle dealers.

426§§ 320.60-320.70, Fla. Stat.

4309. Subsection 320.642(1), Florida Statutes, requires a

437motor vehicle dealer who proposes to establish an additional

446motor vehicle dealership within an area already represented by

455the same line-make vehicle to give written notice to the

465Department of its intent to establish a new franchise. The

475statute also provides that any affected dealership may protest

484the establishment of a new franchise in its territory.

49310. Subsection 320.642(2), Florida Statutes, establishes

499the standards of review to determine if establishment of a new,

510competing motor vehicle franchise should be granted. Subsection

518320.642(2)(a), Florida Statutes, provides in relevant part:

525An application for a motor vehicle dealer

532license in any community or territory shall

539be denied when:

5421. A timely protest is filed by a presently

551existing franchised motor vehicle dealer

556with standing to protest as defined in

563subsection (3); and

5662. The licensee fails to show that the

574existing franchised dealer or dealers who

580register new motor vehicle retail sales or

587retail leases of the same line-make in the

595community or territory of the proposed

601dealership are not providing adequate

606representation of such line-make motor

611vehicles in such community or territory.

617The burden of proof in establishing

623inadequate representation shall be on the

629licensee.

63011. Pursuant to Subsection (3)(b)1. of Section 320.642,

638Florida Statutes, "if the proposed additional . . . motor

648vehicle dealer is to be located in a county with a population of

661more than 300,000," as in the instant case, then any existing

673motor vehicle dealer of the same line-make whose licensed

682franchise location is within a radius of 12.5 miles of the

693proposed additional dealer has standing to file a protest within

703the meaning of Subsection (2)(a)1. of the statute.

71112. Respondent is an existing motor vehicle dealer who has

721standing to file a protest of the proposed new dealership in

732this case.

73413. The burden is therefore on Petitioners to prove that

744there is "inadequate representation" in the community or

752territory of the proposed new dealership, according to the

761criteria set forth in Subsection 320.642(2)(b), Florida

768Statutes.

76914. Petitioners made no appearance and presented no

777evidence at the final hearing. Petitioners failed to meet their

787burden of proof.

79015. The approval sought by Petitioners must therefore be

799denied.

800RECOMMENDATION

801Based on the foregoing Findings of Fact and Conclusions of

811Law, it is

814RECOMMENDED:

815That the Department of Highway Safety and Motor Vehicles

824enter a final order denying the establishment of Petitioners'

833proposed franchise.

835DONE AND ENTERED this 29th day of April, 2009, in

845Tallahassee, Leon County, Florida.

849S

850LAWRENCE P. STEVENSON

853Administrative Law Judge

856Division of Administrative Hearings

860The DeSoto Building

8631230 Apalachee Parkway

866Tallahassee, Florida 32399-3060

869(850) 488-9675

871Fax Filing (850) 921-6847

875www.doah.state.fl.us

876Filed with the Clerk of the

882Division of Administrative Hearings

886this 29th day of April, 2009.

892COPIES FURNISHED :

895Carl A. Ford, Director

899Division of Motor Vehicles

903Department of Highway Safety and

908Motor Vehicles

910Neil Kirkland Building, Room B-439

9152900 Apalachee Parkway

918Tallahassee, Florida 32399-0500

921Robin Lotane, General Counsel

925Department of Highway Safety and

930Motor Vehicles

932Neil Kirkman Building

9352900 Apalachee Parkway

938Tallahassee, Florida 32399-0500

941David Levison

943Mega Powersports Corp.

946390 North Beach Street

950Daytona Beach, Florida 32114

954Michael James Alderman, Esquire

958Department of Highway Safety and

963Motor Vehicles

965Neil Kirkman Building, Room A-432

9702900 Apalachee Parkway

973Tallahassee, Florida 32344

976Ivan Escalante

978CF Moto Powersports

9813555 Holly Lane North, No. 30

987Plymouth, Minnesota 55447

990James Sursely

992Action Orlando Motorsports

995306 West Main Street

999Apopka, Florida 32712

1002NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1008All parties have the right to submit written exceptions within

101815 days from the date of this Recommended Order. Any exceptions

1029to this Recommended Order should be filed with the agency that

1040will issue the final order in this case.

Dockets
Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/02/2009
Proceedings: Final Order filed.
PDF:
Date: 05/27/2009
Proceedings: Agency Final Order
PDF:
Date: 04/29/2009
Proceedings: Recommended Order
PDF:
Date: 04/29/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/29/2009
Proceedings: Recommended Order (hearing held April 15, 2009). CASE CLOSED.
PDF:
Date: 04/15/2009
Proceedings: Statement of Person Administering Oath filed.
Date: 04/15/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/15/2009
Proceedings: Order Allowing Testimony by Telephone.
PDF:
Date: 04/14/2009
Proceedings: Request for Telephonic Hearing filed.
PDF:
Date: 04/09/2009
Proceedings: Notice of Transfer.
PDF:
Date: 10/16/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/16/2008
Proceedings: Notice of Hearing (hearing set for April 15, 2009; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 10/08/2008
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 10/01/2008
Proceedings: Initial Order.
PDF:
Date: 09/30/2008
Proceedings: Notice of Publication for a New Point Franchise Motor Vehicle Dealer filed.
PDF:
Date: 09/30/2008
Proceedings: Notice of Intent to Establish New Dealership filed.
PDF:
Date: 09/30/2008
Proceedings: Protest of Intent to Establish New Dealership filed.
PDF:
Date: 09/30/2008
Proceedings: Agency referral filed.

Case Information

Judge:
LAWRENCE P. STEVENSON
Date Filed:
09/30/2008
Date Assignment:
04/09/2009
Last Docket Entry:
06/02/2009
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

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