08-005365 Galaxy Powersports, Llc D/B/A Jcl International, Llc And J &Amp; F South Florida Investments, Inc. D/B/A Treasure Coast Scooters And Things vs. Wenmark, Inc. D/B/A All The Wheel Toys Status: Closed Recommended Order on Thursday, April 16, 2009.

Summary: Respondent dealer waived protest to new dealership for one line of motorcycles. Other line protests, if any, were not forwarded to DOAH.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GALAXY POWERSPORTS, LLC d/b/a )

JCL INTERNATIONAL, LLC, AND )

J & F SOUTH FLORIDA )

INVESTMENTS, INC. d/b/a )

TREASURE COAST SCOOTERS AND )

THINGS, )

)

Petitioners, )

) Case No. 08-5365

vs. )

)

WENMARK, INC. d/b/a ALL THE )

WHEEL TOYS, )

)

Respondent. ) )

RECOMMENDED ORDER

Pursuant to notice a hearing was conducted on March 19,

2009, in Stuart, Florida, before Claude B. Arrington, a

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner Galaxy Powersports LLC d/b/a

JCL International, LLC:

No Appearance

For Petitioner J & F South Florida Investments,

Inc. d/b/a Treasure Coast Scooters and Things:

Guy Young

7320 South US 1

Port St. Lucie, Florida 34952

For Respondent: Mark Mourning

WenMark Inc., d/b/a All The

Wheel Toys

1540 Northwest Federal Highway

Stuart, Florida 34994

STATEMENT OF THE ISSUE

Whether the Petitioners' proposed dealership should be

approved.

PRELIMINARY STATEMENT

Galaxy Powersports, LLC d/b/a JCL International LLC

(Galaxy) published three separate “Notices of Publication for a

New Point Franchise Motor Vehicle Dealer in a County of More

than 300,000 Population” in the Florida Administrative Weekly on

October 10, 2008, providing notice of its intent to permit J & F

South Florida Investments, Inc. d/b/a Treasure Coast Scooters

and Things (Treasure Coast) to sell three separate lines of

motorcycles. As will be discussed below, Respondent, WenMark

Inc., d/b/a All The Wheel Toys, thereafter timely filed a

challenge to one of those lines. The Florida Department of

Highway Safety and Motor Vehicles (the Department) forwarded

that challenge to DOAH, and this proceeding resulted.

Thereafter, the case was scheduled for hearing and the

parties were provided notice of the hearing location and time.

At the hearing, Galaxy did not appear. Galaxy had been

provided appropriate notice of the hearingeasure Coast was

represented by Guy Young. Mr. Young did not testify and he did

not present any exhibits. Respondent presented the testimony of

Mark Mourning and offered three Composite Exhibits, each of

which was admitted into evidence.

A Transcript of the proceeding was not filed. The parties

were granted ten days from the hearing date within which to file

proposed recommended orders. Neither party filed a proposed

order.

FINDINGS OF FACT

1. On October 10, 2008, in the Florida Administrative

Weekly, Volume 34, Number 41, three separate Notices of

Publication for a New Point Franchise Motor Vehicle Dealer in a

County of More than 300,000 Population were published.

2. The first notice provided, in relevant part, as

follows:

Pursuant to Section 320.642, Florida

Statutes, notice is given that [Galaxy]

intends to allow the establishment of

[Treasure Coast] as a dealership for the

sale of motorcycles manufactured by Benzhou

Vehicle Industry Group Co. Ltd. (SHWI) at

7320 South U.S. 1, Port St. Lucie (St. Lucie

County) Florida 34952 on or after September

26, 2008.

3. The second notice provided, in relevant part, as

follows:

Pursuant to Section 320.642, Florida

Statutes, notice is given that [Galaxy]

intends to allow the establishment of

[Treasure Coast] as a dealership for the

sale of motorcycles manufactured by Zhejiang

Taizhou Wangye Power Co. Ltd. (ZHEJ) at 7320

South U.S. 1, Port St. Lucie (St. Lucie

County) Florida 34952 on or after September

26, 2008.

4. The third notice provided, in relevant part, as

follows:

Pursuant to Section 320.642, Florida

Statutes, notice is given that [Galaxy]

intends to allow the establishment of

[Treasure Coast] as a dealership for the

sale of motorcycles manufactured by Taizhou

Zhongneng Motorcycle Co. Ltd. (ZHNG) at 7320

South U.S. 1, Port St. Lucie (St. Lucie

County) Florida 34952 on or after September

26, 2008.

5. By letter dated October 16, 2008, Respondent filed the

following letter of protest with the Department of Highway

Safety and Motor Vehicles:

In regards to the intent of [Galaxy] to

establish a Benzhou Vehicle Industry Group

LTD (SHWI) with [Treasure Coast] for the

sale of motorcycles at 7320 South U.S. 1,

Port St. Lucie, Fl [sic] 34952. This letter

represents a written complaint to their

application for this dealership, because we

already represent said dealership.

This letter also represents a complaint on

the following conditions:

1. The proposed dealership would be

within 20 miles of our dealership, as

measured by straight line distance. They

are 8.61 miles away per mapquest.

2. The proposed dealership is to be

located within the contractual area outlined

in our dealer agreement, as we have a 20

mile exclusivity.

3. We have made more than 25% of our

retail sales to persons whose registered

household addresses are within 20 straight

line miles of the proposed dealership during

the past 12 month period.

We have established three out of four of

the conditions exist, so we are submitting

this complaint protesting the establishment

of the above dealership.

6. By letter dated October 22, 2008, the Department

referred this matter to DOAH. The letter of referral provided,

in relevant part, as follows:

Pursuant to the provisions of section

120.57, Florida Statutes, we are enclosing a

Complaint and supporting documents pursuant

to 320.642, Florida Statutes, filed by Wendy

and Mark Mourning, on behalf of the above

Respondent, thus requiring a hearing under

the term of this statute.

[Respondent] is protesting the

establishment of [Treasure Coast] for the

line-make Benzhou Vehicle Industry Group Co.

Ltd. (SHWI) at 7320 South US 1, Port St.

Lucie, Florida 34952.

7. The protest filed by Respondent was timely.

8. Respondent's dealership is within 8.61 miles of the

proposed site. Mr. Mourning verified the driving distance and

presented the measured distance as computed by the website

Mapquest. Further, the driving time between the two points is

less than 30 minutes.

9. Respondent has dealer agreements to sell various lines

of motorcycles, including the following: motorcycles

manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWI);

motorcycles manufactured by Zhejiang Taizhou Wangye Power Co.

Ltd. (ZHEJ); and motorcycles manufactured by Taizhou Zhongneng

Motorcycle Co. Ltd. (ZHNG).

10. Although Respondent still has a valid dealer agreement

as to motorcycles manufactured by Benzhou Vehicle Industry Group

Co. Ltd. (SHWI), Respondent has discontinued the sale of those

motorcycles. Mr. Mourning testified that Respondent has no

objection to permitting Treasure Coast to sell motorcycles

manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWI).

11. As to motorcycles manufactured by Zhejiang Taizhou

Wangye Power Co. Ltd. (ZHEJ), and motorcycles manufactured by

Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG), Respondent has

served the area for not less than two years and has successfully

promoted those two lines of motorcycles within its territory or

community. Respondent established that its sales of those

motorcycles are within 12.5 miles of the proposed dealership.

12. Respondent adequately represents Zhejiang Taizhou

Wangye Power Co. Ltd. (ZHEJ) and Taizhou Zhongneng Motorcycle

Co. Ltd. (ZHNG) in Respondent’s community or territory.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

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

14. Section 320.605, Florida Statutes (2008), provides:

It is the intent of the Legislature to

protect the public health, safety, and

welfare of the citizens of the state by

regulating the licensing of motor vehicle

dealers and manufacturers, maintaining

competition, providing consumer protection

and fair trade and providing minorities with

opportunities for full participation as

motor vehicle dealers.

15. Section 320.642, Florida Statutes (2008), provides, in

pertinent part:

(1) Any licensee who proposes to

establish an additional motor vehicle

dealership or permit the relocation of an

existing dealer to a location within a

community or territory where the same line-

make vehicle is presently represented by a

franchised motor vehicle dealer or dealers

shall give written notice of its intention

to the department. Such notice shall state:

(a) The specific location at which the

additional or relocated motor vehicle

dealership will be established.

(b) The date on or after which the

licensee intends to be engaged in business

with the additional or relocated motor

vehicle dealer at the proposed location.

(c) The identity of all motor vehicle

dealers who are franchised to sell the same

line-make vehicle with licensed locations in

the county or any contiguous county to the

county where the additional or relocated

motor vehicle dealer is proposed to be

located.

(d) The names and addresses of the

dealer-operator and principal investors in

the proposed additional or relocated motor

vehicle dealership.

Immediately upon receipt of such notice

the department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice shall state

that a petition or complaint by any dealer

with standing to protest pursuant to

subsection (3) must be filed not more than

30 days from the date of publication of the

notice in the Florida Administrative Weekly.

The published notice shall describe and

identify the proposed dealership sought to

be licensed, and the department shall cause

a copy of the notice to be mailed to those

dealers identified in the licensee's notice

under paragraph (c).

(2)(a) 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.

* * *

(3) An existing franchised motor vehicle

dealer or dealers shall have standing to

protest a proposed additional or relocated

motor vehicle dealer where the existing

motor vehicle dealer or dealers have a

franchise agreement for the same line-make

vehicle to be sold or serviced by the

proposed additional or relocated motor

vehicle dealer and are physically located so

as to meet or satisfy any of the following

requirements or conditions:

* * *

(b) If the proposed additional or

relocated motor vehicle dealer is to be

located in a county with a population of

more than 300,000 according to the most

recent data of the United States Census

Bureau or the data of the Bureau of Economic

and Business Research of the University of

Florida:

1. Any existing motor vehicle dealer or

dealers of the same line-make have a

licensed franchise location within a radius

of 12.5 miles of the location of the

proposed additional or relocated motor

vehicle Dealer. . . . (Emphasis added.)

16. The Respondent established as a matter of law that it

has standing to protest the proposed dealership.

17. Respondent waived at the formal hearing its protest as

to motorcycles manufactured by Benzhou Vehicle Industry Group

Co. Ltd. (SHWI). Consequently, the Department should permit

Treasure Coast to sell motorcycles manufactured by Benzhou

Vehicle Industry Group Co. Ltd. (SHWI).

easure Coast and Respondent clearly believed that

all three proposed dealerships were at issue at the formal

hearing and evidence was taken as to all three lines.

Unfortunately for Respondent, the only protest referred to DOAH

was the protest pertaining to motorcycles manufactured by

Benzhou Vehicle Industry Group Co. Ltd. (SHWI). Whether

Respondent timely challenged the proposal pertaining to the sale

of motorcycles manufactured by Zhejiang Taizhou Wangye Power Co.

Ltd. (ZHEJ) and motorcycles manufactured by Taizhou Zhongneng

Motorcycle Co. Ltd. (ZHNG) at the proposed site was not

established.

19. The Petitioners presented no evidence to support a

conclusion that the Respondent has not provided adequate

representation of Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ)

and Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) in the

community or territory surrounding the proposed site. To the

contrary, the evidence established that Respondent has provided

adequate representation for those two lines in the community or

territory surrounding the proposed site.

20. No recommendation is made as to the sale of

motorcycles manufactured by Zhejiang Taizhou Wangye Power Co.

Ltd. (ZHEJ) or Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG)

because the undersigned lacks jurisdiction to make a

recommendation. Had the undersigned had such authority, the

recommendation would be to deny the application to permit

Treasure Coast to sell motorcycles manufactured by Zhejiang

Taizhou Wangye Power Co. Ltd. (ZHEJ) or Taizhou Zhongneng

Motorcycle Co. Ltd. (ZHNG) at the proposed site.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Highway

Safety and Motor Vehicles enter a Final Order authorizing

Treasure Coast to sell motorcycles manufactured by Benzhou

Vehicle Industry Group Co. Ltd. (SHWI) at Petitioners' proposed

dealership.

DONE AND ENTERED this 16th day of April, 2009, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 16th day of April, 2009.

COPIES FURNISHED :

Leo Su

Galaxy Powersports, LLC, d/b/a

JCL International, LLC

2667 Northhaven Road

Dallas, Texas 75229

Mark Mourning and Wendy Mourning

WenMark Inc., d/b/a All The Wheel Toys

1540 Northwest Federal Highway

Stuart, Florida 34994

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Guy Young

J & F South Florida Investments, Inc.

d/b/a Treasure Coast Scooters and Things

7320 South US 1

Port St. Lucie, Florida 34952

Electra Theodorides-Bustle, Executive Director

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32344

Robin Lotane, General Counsel

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32344

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.