08-005825 Ls Motorsports, Llc And Wild Hogs Scooters And Motorsports, Llc vs. Action Orlando Motorsports Status: Closed Recommended Order on Tuesday, April 21, 2009.

Summary: Agency should deny new-line make dearlership when proposed dealer fails to appear at hearing and submit evidence of compliance with statutory criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LS MOTORSPORTS, LLC, AND WILD )

HOGS SCOOTERS AND MOTORSPORTS, )

LLC, )

)

Petitioners, )

)

vs. ) Case No. 08-5825

)

ACTION ORLANDO MOTORSPORTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on April 6, 2009. The representative for

Respondent and the court reporter attended the hearing in

Orlando, Florida. The ALJ conducted the hearing by video

teleconference from Tallahassee, Florida.

APPEARANCES

For Petitioners: (No appearance)

For Respondent: James Sursely, President, pro se

Action Orlando Motor Sports

306 West Main Street

Apopka, Florida 32712

STATEMENT OF THE ISSUE

The issue is whether Petitioners are entitled to a proposed

motor vehicle dealership in Seminole County, Florida.

PRELIMINARY STATEMENT

On October 24, 2008, the petitioners published a Notice of

Publication for a New Point Franchise Motor Vehicle Dealer in a

County of More than 300,000 Population in the Florida

Administrative Weekly . Respondent timely filed a protest with

the Department of Highway Safety and Motor Vehicles (the

Department).

By letter dated November 18, 2008, the Department referred

the matter to DOAH to conduct a hearing "for the sole purpose of

determining the propriety of the protest regarding issues

specifically within the purview of Sections 320.642 and 320.699,

Florida Statutes [(2008)]." 1

At the hearing, neither of the petitioners appeared, and

neither submitted any evidence. Respondent appeared through its

corporate officer. Respondent did not request a transcript of

the hearing. The time for submitting proposed recommended

orders expired on April 16, 2009. Neither party filed a

proposed recommended order.

FINDINGS OF FACT

1. DOAH provided the parties with adequate notice of the

final hearing. On December 11, 2008, DOAH mailed a Notice of

Hearing to each of the parties, scheduling the final hearing for

April 6, 2009. No Notice was returned as undelivered. No party

objected to a final hearing on April 6, 2009.

2. On December 11, 2008, DOAH also issued an Order of Pre-

hearing Instructions that, in relevant part, required the

parties to file a pre-hearing stipulation which was to include a

list of witnesses and exhibits to be called and submitted at the

final hearing. No party complied with the Order.

3. The documents forwarded to DOAH by the Department

support the findings. The Notice of Publication for a New Point

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

Population was published in the Florida Administrative Weekly ,

Volume 34, Number 43, on October 24, 2008. On behalf of

Respondent, Mr. James Sursely timely filed a protest letter

dated November 7, 2008, with Ms. Nalini Vinayak, the

administrator at the Department responsible for receiving such

protests.

4. The remaining facts are undisputed in this proceeding.

The proposed new point franchise motor vehicle dealer is for a

line-make identified in the record as Chunfeng Holding Group Co.

Ltd. (CFHG) motorcycles. The proposed location is in Seminole

County, Florida. Seminole County has a population in excess

of 300,000.

5. The proposed new point franchise motor vehicle dealer

is located at 3311 West Lake Mary Boulevard, Lake Mary, Florida.

Respondent owns and operates an existing CFHG dealership that is

located at 306 West Main Street, Apopka, Orange, County,

Florida, 32712. The proposed dealership is within a 12.5-mile

radius of Respondent's dealership.

6. Respondent has standing to protest the establishment of

the proposed dealership. The petitioners submitted no evidence

that Respondent is "not providing adequate representation" of

the same line-make motor vehicles in the community or territory.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57(1).

DOAH provided the parties legally, sufficient notice.

8. The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers in the

state. §§ 320.60 through 320.70. The petitioners and

Respondent each operate motorcycle dealerships in the state.

9. Subsection 320.642(1) requires a motor vehicle dealer,

who proposes to establish an additional motor vehicle dealership

within an area already represented by the same line-make

vehicle, to give written notice to the Department of its intent

to establish a new franchise. The statute also provides that

any affected dealership may protest the establishment of a new

franchise in its territory.

10. Subsection 320.642(2) establishes the standards of

review to determine if establishment of a new, competing motor

vehicle franchise should be granted. Subsection 320.642(2)(a)

provides in relevant part:

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.

11. Pursuant to Subsection 320.642(3)(b)1., "if the

proposed additional . . . motor vehicle dealer is to be located

in a county with a population of more than 300,000," as in the

instant case, then any existing motor vehicle dealer of the same

line-make whose licensed franchise location is within a radius

of 12.5 miles of the proposed additional dealer has standing to

file a protest within the meaning of Subsection 320.642(2)(a)1.

12. Subsection 320.642(8) provides:

The department shall not be obligated to

determine the accuracy of any distance

asserted by any party in a notice submitted

to it. Any dispute concerning a distance

measurement asserted by a party shall be

resolved by a hearing conducted in

accordance with ss. 120.569 and 120.57.

13. Respondent's assertion in its protest letter that the

proposed franchise is within 12.5 miles of the existing

franchise location is not a disputed issue of fact. Respondent

is an existing motor vehicle dealer who has standing to file a

protest of the proposed new dealership in this case.

14. The burden of proof is on the petitioners. The

petitioners must show by a preponderance of the evidence that

there is "inadequate representation" in the community or

territory of the proposed new dealership in accordance with the

criteria prescribed in Subsection 320.642(2)(b).

15. The petitioners failed to satisfy their burden of

proof. The petitioners submitted no evidence at the final

hearing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order denying

the establishment of the proposed franchise dealership.

DONE AND ENTERED this 21st day of April, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 21st day of April, 2009.

ENDNOTE

1/ References to subsections, sections, and chapters are to

Florida Statutes (2008) unless otherwise stated.

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

Jason Rupp

Wild Hogs Scooters & Motorsports, LLC

3311 West Lake Mary Boulevard

Lake Mary, Florida 32746

Mathu Solo

LS Motorsports, LLC

10215 South Sam Houston Parkway West

Suite 100

Houston, Texas 77071

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.