08-005827 Ls Motorsports, Llc And Wild Hogs Scooters And Motorsports, Llc vs. Action Orlando Motorsports
 Status: Closed
Recommended Order on Thursday, April 23, 2009.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8LS MOTORSPORTS, LLC, AND WILD )

14HOGS SCOOTERS AND MOTORSPORTS, )

19LLC, )

21)

22Petitioners, )

24)

25vs. ) Case No. 08-5827

30)

31ACTION ORLANDO MOTORSPORTS, )

35)

36Respondent. )

38)

39RECOMMENDED ORDER

41Administrative Law Judge (ALJ) Daniel Manry conducted the

49final hearing of this case for the Division of Administrative

59Hearings (DOAH) on April 8, 2009. The representative for

68Respondent and the court reporter attended the hearing in

77Orlando, Florida. The ALJ conducted the hearing by video

86teleconference from Tallahassee, Florida.

90APPEARANCES

91For Petitioners: (No appearance)

95For Respondent: James Sursely, President, pro se

102Action Orlando Motorsports

105306 West Main Street

109Apopka, Florida 32712

112STATEMENT OF THE ISSUE

116The issue is whether Petitioners are entitled to a proposed

126motor vehicle dealership in Seminole County, Florida.

133PRELIMINARY STATEMENT

135On October 24, 2008, the petitioners published a Notice of

145Publication for a New Point Franchise Motor Vehicle Dealer in a

156County of More than 300,000 Population in the Florida

166Administrative Weekly . Respondent timely filed a protest with

175the Department of Highway Safety and Motor Vehicles (the

184Department).

185By letter dated November 18, 2008, the Department referred

194the matter to DOAH to conduct a hearing "for the sole purpose of

207determining the propriety of the protest regarding issues

215specifically within the purview of Sections 320.642 and 320.699,

224Florida Statutes [(2008)]." 1

228At the hearing, neither of the petitioners appeared, and

237neither submitted any evidence. Respondent appeared through its

245corporate officer, who was the sole witness at the hearing.

255Respondent did not submit any exhibits for admission into

264evidence, and none of the parties requested a transcript of the

275hearing. The time for submitting proposed recommended orders

283expired on April 20, 2009. Neither party filed a proposed

293recommended order.

295FINDINGS OF FACT

2981. DOAH provided the parties with adequate notice of the

308final hearing. On December 3, 2008, DOAH mailed a Notice of

319Hearing to each of the parties, scheduling the final hearing for

330April 8, 2009. No Notice was returned as undelivered. No party

341objected to a final hearing on April 8, 2009.

3502. On December 3, 2008, DOAH also issued an Order of Pre-

362hearing Instructions that, in relevant part, required the

370parties to file a pre-hearing stipulation, which was to include

380a list of witnesses and exhibits to be called and submitted at

392the final hearing. No party complied with the Order.

4013. The documents forwarded to DOAH by the Department

410support the findings. The Notice of Publication for a New Point

421Franchise Motor Vehicle Dealer in a County of More than 300,000

433Population was published in the Florida Administrative Weekly ,

441Volume 34, Number 43, on October 24, 2008. On behalf of

452Respondent, Mr. James Sursely timely filed a protest letter

461dated November 7, 2008, with Ms. Nalini Vinayak, the

470administrator at the Department responsible for receiving such

478protests.

4794. The remaining facts are undisputed in this proceeding.

488The proposed new point franchise motor vehicle dealer is for a

499line-make identified in the record as Chongqing Lifan Industry

508Group Co. Ltd. (CHOL) motorcycles. The proposed location is in

518Seminole County, Florida. Seminole County has a population in

527excess of 300,000.

5315. The proposed new point franchise motor vehicle dealer

540is located at 3311 West Lake Mary Boulevard, Lake Mary, Florida.

551Respondent owns and operates an existing CHOL dealership that is

561located at 306 West Main Street, Apopka, Orange, County, Florida

57132712. The proposed dealership is within a 12.5-mile radius of

581Respondent's dealership.

5836. Respondent has standing to protest the establishment of

592the proposed dealership. The petitioners submitted no evidence

600that Respondent is "not providing adequate representation" of

608the same line-make motor vehicles in the community or territory.

618CONCLUSIONS OF LAW

6217. DOAH has jurisdiction over the parties to and the

631subject matter of this proceeding. §§ 120.569 and 120.57(1).

640DOAH provided the parties legally, sufficient notice.

6478. The Department is the agency responsible for regulating

656the licensing and franchising of motor vehicle dealers in the

666state. §§ 320.60 through 320.70. The petitioners and

674Respondent each operate motorcycle dealerships in the state.

6829. Subsection 320.642(1) requires a motor vehicle dealer,

690who proposes to establish an additional motor vehicle dealership

699within an area already represented by the same line-make

708vehicle, to give written notice to the Department of its intent

719to establish a new franchise. The statute also provides that

729any affected dealership may protest the establishment of a new

739franchise in its territory.

74310. Subsection 320.642(2) establishes the standards of

750review to determine if establishment of a new, competing motor

760vehicle franchise should be granted. Subsection 320.642(2)(a)

767provides, in relevant part:

771An application for a motor vehicle dealer

778license in any community or territory shall

785be denied when:

7881. A timely protest is filed by a presently

797existing franchised motor vehicle dealer

802with standing to protest as defined in

809subsection (3); and

8122. The licensee fails to show that the

820existing franchised dealer or dealers who

826register new motor vehicle retail sales or

833retail leases of the same line-make in the

841community or territory of the proposed

847dealership are not providing adequate

852representation of such line-make motor

857vehicles in such community or territory.

863The burden of proof in establishing

869inadequate representation shall be on the

875licensee.

87611. Pursuant to Subsection 320.642(3)(b)1., "if the

883proposed additional . . . motor vehicle dealer is to be located

895in a county with a population of more than 300,000," as in the

909instant case, then any existing motor vehicle dealer of the same

920line-make whose licensed franchise location is within a radius

929of 12.5 miles of the proposed additional dealer has standing to

940file a protest within the meaning of Subsection 320.642(2)(a)1.

94912. Subsection 320.642(8) provides:

953The department shall not be obligated to

960determine the accuracy of any distance

966asserted by any party in a notice submitted

974to it. Any dispute concerning a distance

981measurement asserted by a party shall be

988resolved by a hearing conducted in

994accordance with ss. 120.569 and 120.57.

100013. Respondent's assertion in its protest letter that the

1009proposed franchise is within 12.5 miles of the existing

1018franchise location is not a disputed issue of fact. Respondent

1028is an existing motor vehicle dealer who has standing to file a

1040protest of the proposed new dealership in this case.

104914. The burden of proof is on the petitioners. The

1059petitioners must show by a preponderance of the evidence that

1069there is "inadequate representation" in the community or

1077territory of the proposed new dealership in accordance with the

1087criteria prescribed in Subsection 320.642(2)(b).

109215. The petitioners failed to satisfy their burden of

1101proof. The petitioners submitted no evidence at the final

1110hearing.

1111RECOMMENDATION

1112Based on the foregoing Findings of Fact and Conclusions of

1122Law, it is

1125RECOMMENDED that the Department enter a final order denying

1134the establishment of the proposed franchise dealership.

1141DONE AND ENTERED this 23rd day of April, 2009, in

1151Tallahassee, Leon County, Florida.

1155S

1156DANIEL MANRY

1158Administrative Law Judge

1161Division of Administrative Hearings

1165The DeSoto Building

11681230 Apalachee Parkway

1171Tallahassee, Florida 32399-3060

1174(850) 488-9675

1176Fax Filing (850) 921-6847

1180www.doah.state.fl.us

1181Filed with the Clerk of the

1187Division of Administrative Hearings

1191this 23rd day of April, 2009.

1197ENDNOTE

11981/ References to subsections, sections, and chapters are to

1207Florida Statutes (2008), unless otherwise stated.

1213COPIES FURNISHED :

1216Michael James Alderman, Esquire

1220Department of Highway Safety and

1225Motor Vehicles

1227Neil Kirkman Building, Room A-432

12322900 Apalachee Parkway

1235Tallahassee, Florida 32344

1238Jason Rupp

1240Wild Hogs Scooters & Motorsports, LLC

12463311 West Lake Mary Boulevard

1251Lake Mary, Florida 32746

1255Mathu Solo

1257LS Motorsports, LLC

126010215 South Sam Houston Parkway West

1266Suite 100

1268Houston, Texas 77071

1271James Sursely

1273Action Orlando Motorsports

1276306 West Main Street

1280Apopka, Florida 32712

1283Carl A. Ford, Director

1287Division of Motor Vehicles

1291Highway Safety and Motor Vehicles

1296Neil Kirkman Building, Room B-439

13012900 Apalachee Parkway

1304Tallahassee, Florida 32399-0500

1307Robin Lotane, General Counsel

1311Highway Safety and Motor Vehicles

1316Neil Kirkman Building

13192900 Apalachee Parkway

1322Tallahassee, Florida 32399-0500

1325NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1331All parties have the right to submit written exceptions within

134115 days from the date of this Recommended Order. Any exceptions

1352to this Recommended Order should be filed with the agency that

1363will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/02/2009
Proceedings: Final Order filed.
PDF:
Date: 05/27/2009
Proceedings: Agency Final Order
PDF:
Date: 04/23/2009
Proceedings: Recommended Order
PDF:
Date: 04/23/2009
Proceedings: Recommended Order (hearing held April 8, 2009). CASE CLOSED.
PDF:
Date: 04/23/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
Date: 04/08/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/07/2009
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for April 8, 2009; 9:30 a.m.; Orlando and Tallahassee, FL; amended as to time).
PDF:
Date: 04/07/2009
Proceedings: Notice of Transfer.
PDF:
Date: 12/03/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 12/03/2008
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 8, 2009; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 12/02/2008
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 11/20/2008
Proceedings: Initial Order.
PDF:
Date: 11/20/2008
Proceedings: Notice of Publication for a New Point Franchise Motor Vehicle Dealer filed.
PDF:
Date: 11/20/2008
Proceedings: Protest of Intent to Establish a New Dealership filed.
PDF:
Date: 11/20/2008
Proceedings: Agency referral filed.

Case Information

Judge:
DANIEL MANRY
Date Filed:
11/20/2008
Date Assignment:
04/07/2009
Last Docket Entry:
06/02/2009
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (6):