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08-005247 Galaxy Powersports, Llc, D/B/A Jcl International, Llc, And Mega Power Sports Corp. vs. Action Orlando Motorsports
 Status: Closed
Recommended Order on Wednesday, January 14, 2009.

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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GALAXY POWERSPORTS, LLC, d/b/a )

13JCL INTERNATIONAL, LLC, AND )

18MEGA POWER SPORTS CORP., )

23)

24Petitioners, )

26)

27vs. ) Case No. 08-5247

32)

33ACTION ORLANDO MOTORSPORTS, )

37)

38Respondent. )

40)

41RECOMMENDED ORDER

43On January 5, 2009, an administrative hearing in this case

53was held in Orlando, Florida, before Lawrence P. Stevenson,

62Administrative Law Judge, Division of Administrative Hearings

69(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 vehicle dealership that is proposed to be located in Longwood, Florida.

116PRELIMINARY STATEMENT

118On September 19, 2008, Galaxy Powersports, LLC d/b/a JCL

127International, LLC and Mega Power Sports Corp. (Petitioners)

135published a Notice of Publication for a New Point Franchise

145Motor Vehicle Dealer in a County of More than 300,000 Population

157in the Florida Administrative Weekly . Respondent Action Orlando

166Motorsports filed a protest with the Department of Highway

175Safety and Motor Vehicles (Department) on October 10, 2008. By

185letter dated October 17, 2008, the Department referred the

194matter to DOAH to assign an administrative law judge to conduct

205a hearing "for the sole purpose of determining the propriety of

216the protest regarding issues specifically within the purview of

225Sections 320.642 and 320.699, Florida Statutes."

231The hearing was convened as scheduled. Respondent was

239present and ready to proceed. Petitioners made no appearance.

248James Sursely, the owner of Action Orlando Motorsports,

256testified at the hearing. Respondent's Composite Exhibit 1 was

265offered and received into evidence.

270The hearing was not transcribed. Respondent waived the

278filing of a proposed recommended order. All references to the

288Florida Statutes are to the 2008 edition unless otherwise

297indicated.

298FINDINGS OF FACT

3011. Respondent is an existing franchised dealer of

309motorcycles manufactured by Zhejiang Taizhou Wangye Power Co.

317Ltd. (ZHEJ).

3192. Petitioners have proposed the establishment of a new

328dealership to sell the same line and make of motorcycles as

339those sold by Respondent.

3433. Respondent's dealership is located at 306 West Main

352Street, Apopka, Florida 32712.

3564. Petitioners' proposed dealership would be located at

364821 South Highway 17-92, Suite 101, Longwood, Florida 32750.

3735. The proposed dealership is within a 12.5-mile radius of

383Respondent's dealership.

3856. Respondent has standing to protest the establishment of

394the proposed dealership.

397CONCLUSIONS OF LAW

4007. DOAH has jurisdiction over the parties and the subject

4108. The Department is the agency responsible for regulating

419the licensing and franchising of motor vehicle dealers.

427§§ 320.60-320.70, Fla. Stat.

4319. Subsection 320.642(1), Florida Statutes, requires a

438motor vehicle dealer who proposes to establish an additional

447motor vehicle dealership within an area already represented by

456the same line-make vehicle to give written notice to the

466Department of its intent to establish a new franchise. The

476statute also provides that any affected dealership may protest

485the establishment of a new franchise in its territory.

49410. Subsection 320.642(2), Florida Statutes, establishes

500the standards of review to determine if establishment of a new,

511competing motor vehicle franchise should be granted. Subsection

519320.642(2)(a), Florida Statutes, provides in relevant part:

526An application for a motor vehicle dealer

533license in any community or territory shall

540be denied when:

5431. A timely protest is filed by a presently

552existing franchised motor vehicle dealer

557with standing to protest as defined in

564subsection (3); and

5672. The licensee fails to show that the

575existing franchised dealer or dealers who

581register new motor vehicle retail sales or

588retail leases of the same line-make in the

596community or territory of the proposed

602dealership are not providing adequate

607representation of such line-make motor

612vehicles in such community or territory. The

619burden of proof in establishing inadequate

625representation shall be on the licensee.

63111. Pursuant to Subsection (3)(b)1. of Section 320.642,

639Florida Statutes, "if the proposed additional . . . motor

649vehicle dealer is to be located in a county with a population of

662more than 300,000," as in the instant case, then any existing

674motor vehicle dealer of the same line-make whose licensed

683franchise location is within a radius of 12.5 miles of the

694proposed additional dealer has standing to file a protest within

704the meaning of Subsection (2)(a)1. of the statute.

71212. Respondent is an existing motor vehicle dealer who has

722standing to file a protest of the proposed new dealership in

733this case.

73513. The burden is therefore on Petitioners to prove that

745there is "inadequate representation" in the community or

753territory of the proposed new dealership, according to the

762criteria set forth in Subsection 320.642(2)(b), Florida

769Statutes.

77014. Petitioners made no appearance and presented no

778evidence at the final hearing. Petitioners failed to meet their

788burden of proof.

79115. The approval sought by Petitioners must therefore be

800denied.

801RECOMMENDATION

802Based on the foregoing Findings of Fact and Conclusions of

812Law, it is

815RECOMMENDED:

816That the Department of Transportation enter a final order

825denying the establishment of Petitioners' proposed franchise.

832DONE AND ENTERED this 14th day of January, 2009, in

842Tallahassee, Leon County, Florida.

846S

847LAWRENCE P. STEVENSON

850Administrative Law Judge

853Division of Administrative Hearings

857The DeSoto Building

8601230 Apalachee Parkway

863Tallahassee, Florida 32399-3060

866(850) 488-9675

868Fax Filing (850) 921-6847

872www.doah.state.fl.us

873Filed with the Clerk of the

879Division of Administrative Hearings

883this 14th day of January, 2009.

889COPIES FURNISHED :

892Electra Theodorides-Bustle,

894Executive Director

896Department of Highway Safety

900and Motor Vehicles

903Neil Kirkman Building

9062900 Apalachee Parkway

909Tallahassee, Florida 32399-0500

912Robin Lotane, General Counsel

916Department of Highway Safety

920and Motor Vehicles

923Neil Kirkman Building

9262900 Apalachee Parkway

929Tallahassee, Florida 32399-0500

932Michael J. Alderman, Esquire

936Department of Highway Safety

940and Motor Vehicles

943Neil Kirkman Building, Room A-432

9482900 Apalachee Parkway

951Tallahassee, Florida 32399-0635

954David Levison

956Mega Power Sports, Corp.

960921 West International Speedway Boulevard

965Daytona Beach, Florida 32114

969David Levison

971Mega Powersports Corp.

974390 North Beach Street

978Daytona Beach, Florida 32114

982Leo Su

984Galaxy Powersports, LLC, d/b/a

988JCL International, LLC

9912667 Northhaven Road

994Dallas, Texas 75229

997James Sursely

999Action Orlando Motorsports

1002306 West Main Street

1006Apopka, Florida 32712

1009NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1015All parties have the right to submit written exceptions within

102515 days from the date of this Recommended Order. Any exceptions

1036to this Recommended Order should be filed with the agency that

1047will issue the final order in this case.

Dockets
Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/24/2009
Proceedings: (Agency) Final Order filed.
PDF:
Date: 04/20/2009
Proceedings: Agency Final Order
PDF:
Date: 01/21/2009
Proceedings: Corrected RO
PDF:
Date: 01/21/2009
Proceedings: Corrected Recommended Order.
PDF:
Date: 01/21/2009
Proceedings: Corrected Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/14/2009
Proceedings: Recommended Order
PDF:
Date: 01/14/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/14/2009
Proceedings: Recommended Order (hearing held January 5, 2009). CASE CLOSED.
Date: 01/05/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/13/2008
Proceedings: Amended Notice of Hearing (hearing set for January 5, 2009; 9:00 a.m.; Orlando, FL; amended as to Location).
PDF:
Date: 11/07/2008
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 11/05/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/05/2008
Proceedings: Notice of Hearing (hearing set for January 5, 2009; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 10/21/2008
Proceedings: Initial Order.
PDF:
Date: 10/21/2008
Proceedings: Notice of Publication for a New Point Franchise Motor Vehicle Dealer filed.
PDF:
Date: 10/21/2008
Proceedings: Protest of the Establishment of a New Point Dealership filed.
PDF:
Date: 10/21/2008
Proceedings: Agency referral filed.

Case Information

Judge:
LAWRENCE P. STEVENSON
Date Filed:
10/21/2008
Date Assignment:
10/21/2008
Last Docket Entry:
04/24/2009
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (2):