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.
Recommended Order on Thursday, April 23, 2009.
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.
- Date
- Proceedings
- 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: 12/03/2008
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 8, 2009; 9:00 a.m.; Orlando and Tallahassee, FL).
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
-
Michael James Alderman, Esquire
Address of Record -
Jason Rupp
Address of Record -
Mathu Solo
Address of Record -
James Sursely
Address of Record