08-005731 Galaxy Powersports, Llc, D/B/A Jcl International, Llc, And Florida Sport Trucks, Inc., D/B/A Fst Motorsports vs. West Coast Cycle, Inc. Status: Closed Recommended Order on Thursday, July 2, 2009.

Summary: Recommend denial of new point dealership application where Petitioners did not appear for final hearing and, therefore, failed to meet their burden of proof.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GALAXY POWERSPORTS, LLC, d/b/a )

JCL INTERNATIONAL, LLC, and )

FLORIDA SPORT TRUCKS, INC., )

d/b/a FST MOTORSPORTS, )

)

Petitioners, )

)

vs. ) Case No. 08-5731

)

WEST COAST CYCLE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

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

with sites in Tampa and in Tallahassee, Florida.

APPEARANCES

For Petitioners: No appearance

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue presented is whether Petitioners should be

allowed to establish a new point dealership for the sale of

motorcycles manufactured by Benzhou Vehicle Industry Group Co.

Ltd. (SHWI) in Tampa, Florida.

FINDINGS OF FACT

1. On October 17, 2008, the Department of Highway Safety

and Motor Vehicles published a notice in the Florida

Administrative Weekly. The notice announced that Galaxy

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

the establishment of Florida Sport Trucks, Inc., d/b/a FST

Motorsports as a dealership for the sale of motorcycles

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

at 2301 South 50th Street, Tampa, Hillsborough County, Florida

33619, on or after October 3, 2008.

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

2008, Respondent West Coast Cycle, Inc., opposed the

establishment of the dealership selling the same products as

West Coast Cycle, Inc., less than 1/2 mile from its location.

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

matter to the Division of Administrative Hearings to conduct an

evidentiary proceeding.

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 that Initial Order.

5. By Notice of Hearing by Video Teleconference entered

December 12, 2008, this matter was scheduled for final hearing

on May 7, 2009, at 9:30 a.m. By Order of Pre-hearing

Instructions entered that same date, the parties were required

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. To date, no witness lists have been

filed.

6. By Amended Notice of Hearing by Video Teleconference

entered April 17, 2009, the commencement time of the final

hearing was changed to 8:30 a.m., but the date and location for

the final hearing remained the same.

7. At 8:30 a.m. on May 7, 2009, the final hearing was

convened. Only the undersigned and the court reporter were

present.

8. The undersigned waited until 9:00 a.m., but neither the

Petitioners nor Respondent appeared for the final hearing.

Further, neither the Petitioners nor the Respondent, or anyone

on their behalf, contacted the undersigned regarding their non-

appearance or late appearance before the final hearing

adjourned. Since the final hearing was adjourned, there has

been no contact or explanation from either Petitioners or

Respondent regarding their non-appearance.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

10. Pursuant to Section 320.642, Florida Statutes, the

burden of proof to support a new dealership is on the

Petitioners. They have failed to meet their burden of proof by

their failure to appear and present evidence at the final

hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying the

application for the establishment of the new point dealership at

issue in this case.

DONE AND ENTERED this 13th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 13th day of May, 2009.

COPIES FURNISHED:

Electra Theodorides-Bustle, Executive Director

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Robin Lotane, General Counsel

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Leo Su

Galaxy Powersports, LLC, d/b/a

JCL International, LLC

2667 Northhaven Road

Dallas, Texas 75229

William Ford

West Coast Cycle, Inc.

4511 Causeway Boulevard

Tampa, Florida 33619

Carlos M. Vasquez

Florida Sport Trucks, Inc., d/b/a

FST Motorsports

3214 Leila Avenue

Tampa, Florida 33611

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.