08-005066 Lance Powersports, Inc., And Eco Motor Sports And Scooters, Llc vs. Action Orlando Motorsports Status: Closed Recommended Order on Tuesday, May 5, 2009.

Summary: Petitioners did not appear for hearing and failed to establish that the existing dealership was not providing adequate representation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LANCE POWERSPORTS, INC., AND )

ECO MOTOR SPORTS AND SCOOTERS, )

LLC, )

)

Petitioners, )

)

vs. ) Case No. 08-5066

)

ACTION ORLANDO MOTORSPORTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on April 21, 2009, in Tallahassee, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioners: (No appearance)

For Respondent: James Sursely, pro se

Action Orlando Motorsports

306 West Main Street

Apopka, Florida 32712

STATEMENT OF THE ISSUE

The issue in this case is whether an application for a

motor vehicle dealership filed by Petitioners should be

approved.

PRELIMINARY STATEMENT

By notice published in the Florida Administrative Weekly

(Volume 34, Number 36; September 5, 2008), the Department of

Highway Safety and Motor Vehicles (Department) gave notice that

Lance Powersports, Inc., was seeking to establish a new point

motor vehicle dealership in Longwood, Florida, with ECO Motor

Sports and Scooters, LLC, “for the sale of motorcycles

manufactured by Taizhou Zongneng Motorcycle Co. Ltd. (ZHNG)." A

challenge to the establishment of the dealership was filed with

the Department by an existing motorcycle dealership, Action

Orlando Motorsports (Action Orlando).

By letter dated October 9, 2008, the Department forwarded

the challenge to the Division of Administrative Hearings. The

case was originally assigned to Administrative Law Judge

William F. Quattlebaum, but was transferred to Administrative

Law Judge Susan B. Harrell to conduct the final hearing. On

October 13, 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. Petitioners did

not file a response to the Initial Order. The hearing was

scheduled in Tallahassee, Florida, for April 21, 2009, a date in

accordance with Subsection 320.699(2), Florida Statutes (2008).

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

of, either Petitioner. Respondent's owner, James Sursley,

testified on behalf of Respondent. No exhibits were offered

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

proposed recommended orders were filed.

FINDINGS OF FACT

1. Lance Powersports, Inc., is seeking to establish a new

point motor vehicle dealership in Longwood, Florida, for

motorcycles manufactured by ZHNG.

2. Action Orlando is an existing franchise motor vehicle

dealer for line-make ZHNG, located within 12.5 miles of the

proposed new point motor vehicle dealership location.

3. Action Orlando timely filed a protest of Lance

Powersports, Inc.’s, proposed dealership.

4. There is no evidence that Acton Orlando 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 Lance

Powersports, Inc., and ECO Motor Sports and Scooters, LLC. 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 Action Orlando is not providing

adequate representation of motorcycles manufactured by ZHNG.

RECOMMENDATION

Based on the foregoing Findings 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 5th day of May, 2009, in Tallahassee,

Leon County, Florida.

S

SUSAN B. HARRELL

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 5th day of May, 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

Gene Chang

Lance Powersports, Inc.

5200 Ontario Mills Parkway, Suite 100

Ontario, California 91764

Elliot Blackwelder

ECO Motor Sports & Scooters, LLC

725 Ronald Regan Boulevard, Suite 100

Longwood, Florida 32750

James Sursely

Action Orlando Motorsports

306 West Main Street

Apopka, Florida 32712

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.