08-005717 Galaxy Powersports, Llc, D/B/A Jcl International, Llc, And Kitai Powersports, Inc. vs. Road Power Usa, Llc Status: Closed Recommended Order on Tuesday, May 19, 2009.

Summary: Petitioners did not appear and therefore did not meet their burden of proof.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GALAXY POWERSPORTS, LLC, )

d/b/a JCL INTERNATIONAL, LLC, )

AND KITAI POWERSPORTS, INC., )

)

Petitioners, )

) Case No. 08-5717

vs. )

)

ROAD POWER USA, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings, on May 7, 2009, by video teleconference

with sites in Jacksonville and in Tallahassee, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Petitioners should be allowed to establish a new point dealership for the sale of motorcycles

manufactured by Taizhou Zhongneng Motorcycle Co., Ltd. (ZHNG),

in Jacksonville Beach, Florida.

FINDINGS OF FACT

1. On October 10, 2008, the Department of Highway Safety

and Motor Vehicles (Department) published a notice in the

Florida Administrative Weekly. The notice advised that Galaxy

Powersports, LLC d/b/a JCL International, LLC, intends to allow

the establishment of Kitai Powersports, Inc., as a dealership

for the sale of motorcycles manufactured by Taizhou Zhongneng

Motorcycle Co., Ltd. (ZHNG) at 228 North 3rd Street,

Jacksonville Beach, Duval County, Florida, on or after

October 3, 2008.

2. By letter received by the Department on October 31,

2008, Respondent, Roadpower USA LLC, opposed the establishment

of the dealership selling the same products as Roadpower USA,

LLC, within .5 miles from its established dealership.

3. On November 14, 2008, the Department referred this

matter to the Division of Administrative Hearings to conduct an

evidentiary hearing.

4. By Initial Order entered November 14, 2008, Petitioners

and Respondent were required to provide certain information for

the scheduling of the final hearing in this cause. None of the

parties responded to the Initial Order.

5. A Notice of Hearing by Video Teleconference was entered

on December 12, 2008, scheduling this case for final hearing on

May 7, 2009, at 9:00 a.m. An Order of Pre-hearing Instructions

was entered that same date, which required the parties to

exchange witness lists and copies of exhibits no later than

seven days prior to the final hearing. Copies of the witness

lists were also required to be filed with the Division of

Administrative Hearings. No witness lists have been filed.

6. At 9:00 a.m. on May 7, 2009, the final hearing was

convened. The only persons present were the court reporter, who

was at the Jacksonville site, and the undersigned, who was at

the Tallahassee site.

7. The undersigned waited until approximately 9:25 a.m.,

but neither the Petitioners nor the Respondent appeared for the

final hearing. The hearing was adjourned at approximately

9:30 a.m. No one on behalf of Petitioners or Respondent

contacted the undersigned’s office with any explanation of their

non-appearance before the hearing was adjourned, or thereafter.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 320.699, 120.569, and 120.57(1),

Florida Statutes (2008).

9. Section 320.642, Florida Statutes (2008), sets forth

the procedure for establishing proposed motor vehicle

dealerships or permitting the relocations of such dealerships.

Pursuant to this statute, the burden of proof to support a new

dealership is on the Petitioners. By failing to appear and

present evidence at the final hearing, they have failed to meet

their burden of proof.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

That the Department of Highway Safety and Motor Vehicles

enter a final order denying Petitioners’ application for the new

point dealership at issue in this case.

DONE AND ENTERED this 19th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 19th 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

Rustin Murray

Kitai Powersports, Inc.

400 North Pimlico Street

St. Augustine, Florida 32090

Leo Su

Galaxy Powersports, LLC, d/b/a

JCL International, LLC

2667 Northhaven Road

Dallas, Texas 75229

Claudio Biltoc

Kitai Powersports, Inc.

143 Belmont Drive

St. Johns, Florida 32259

Pete Biltoc

Kitai Powersports, Inc.

13887 Sea Prairie Street

Jacksonville, Florida 32216

Jim Lee

Road Power USA, LLC

927 North 3rd Street

Jacksonville Beach, Florida 32250

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.