08-005830 Snyder Computer Systems, Inc., D/B/A Wildfire Motors And Beach Cycle Of Fort Lauderdale, Inc. vs. Power And Play Warehouse, Inc. Status: Closed Recommended Order on Wednesday, February 18, 2009.

Summary: Protesting dealer is within 8.5 miles of the proposed dealership, sells within the proposed market, and meets the market need. No proof of the proposed dealership should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SNYDER COMPUTER SYSTEMS, INC., )

d/b/a WILDFIRE MOTORS AND BEACH )

CYCLE OF FORT LAUDERDALE, INC., )

)

Petitioners, )

)

vs. ) Case No. 08-5830

)

POWER AND PLAY WAREHOUSE, INC., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice a hearing was conducted on January 28,

2009, in Fort Lauderdale, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: No Appearance

For Respondent: Paul J. Lane, Esquire

2755 East Oakland Park Boulevard

Suite 300

Fort Lauderdale, Florida 33306

STATEMENT OF THE ISSUE

Whether the Petitioners' proposed dealership should be

approved.

PRELIMINARY STATEMENT

The Florida Department of Highway Safety and Motor Vehicles forwarded the instant case to the Division of Administrative

Hearings for formal proceedings on November 20, 2008.

Thereafter, the case was scheduled for hearing and the parties

were provided notice of the hearing location and time.

At the hearing, the Respondent, Power and Play Warehouse,

Inc., through counsel and Thomas McMahon, a principal with the

company, appeared for hearing. The Petitioners, Snyder Computer

Systems, Inc., d/b/a Wildfire Motors and Beach Cycle of Fort

Lauderdale, Inc., did not appear. Mr. McMahon testified and

presented evidence in opposition to the proposed dealership. No

evidence was presented in support of the proposed dealership.

A transcript of the proceeding was not filed. The parties

were granted ten days from the hearing date within which to file

proposed recommended orders. Neither timely filed a proposed

order.

FINDINGS OF FACT

1. On October 17, 2008, in the Florida Administrative

Weekly, Volume 34, Number 42, a Notice of Publication for a New

Point Franchise Motor Vehicle Dealer in a County of More than

300,000 Population was published. The notice provided that

Snyder Computer Systems, Inc., d/b/a Wildfire Motors intended to

allow the establishment of Beach Cycle of Fort Lauderdale, Inc.,

as a dealership for the sale of motorcycles manufactured by

Zhejiang Summit Huawin Motorcycle Co. Ltd. (POPC) at Ravens Wood

Road, Fort Lauderdale (Broward County), Florida 33312, on or

after November 5, 2008.

2. On November 12, 2008, the Respondent timely filed a

protest of the establishment of the Petitioners' dealership.

Respondent alleged that it currently services customers for the

line-make proposed by the Petitioners and that its location is

within 12.5 miles of the location proposed by the Petitioners.

3. The evidence presented established that the Respondent's

dealership is within 8.5 miles of the proposed site. Mr. McMahon

verified the driving distance and presented the measured distance

as computed by the website Mapquest. Further, the driving time

between the two points is less than 30 minutes.

4. The Respondent has served the area for not less than 2

years and has successfully promoted the vehicles proposed to be

sold by the line-make proposed by the Petitioners.

5. The Respondent established that its sales are within

12.5 miles of the proposed dealership.

6. The Respondent established that it currently markets the

motorcycle to be sold by the proposed dealership. More

specifically, the Respondent offered testimony that it has an

agreement for the same line-make vehicle to be sold by the

proposed dealer.

7. Notice of the formal hearing was provided to all parties

of record at their addresses of record.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 120.569, and 120.57(1), Fla. Stat (2008).

9. Section 320.605, Florida Statutes (2008), provides:

It is the intent of the Legislature to

protect the public health, safety, and

welfare of the citizens of the state by

regulating the licensing of motor vehicle

dealers and manufacturers, maintaining

competition, providing consumer protection

and fair trade and providing minorities with

opportunities for full participation as motor

vehicle dealers.

10. Section 320.642, Florida Statutes (2008), provides, in

pertinent part:

(1) Any licensee who proposes to establish

an additional motor vehicle dealership or

permit the relocation of an existing dealer

to a location within a community or territory

where the same line-make vehicle is presently

represented by a franchised motor vehicle

dealer or dealers shall give written notice

of its intention to the department. Such

notice shall state:

(a) The specific location at which the

additional or relocated motor vehicle

dealership will be established.

(b) The date on or after which the licensee

intends to be engaged in business with the

additional or relocated motor vehicle dealer

at the proposed location.

(c) The identity of all motor vehicle

dealers who are franchised to sell the same

line-make vehicle with licensed locations in

the county or any contiguous county to the

county where the additional or relocated

motor vehicle dealer is proposed to be

located.

(d) The names and addresses of the dealer-

operator and principal investors in the

proposed additional or relocated motor

vehicle dealership.

Immediately upon receipt of such notice the

department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice shall state

that a petition or complaint by any dealer

with standing to protest pursuant to

subsection (3) must be filed not more than 30

days from the date of publication of the

notice in the Florida Administrative Weekly.

The published notice shall describe and

identify the proposed dealership sought to be

licensed, and the department shall cause a

copy of the notice to be mailed to those

dealers identified in the licensee's notice

under paragraph (c).

(2)(a) 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.

* * *

(3) An existing franchised motor vehicle

dealer or dealers shall have standing to

protest a proposed additional or relocated

motor vehicle dealer where the existing motor

vehicle dealer or dealers have a franchise

agreement for the same line-make vehicle to

be sold or serviced by the proposed

additional or relocated motor vehicle dealer

and are physically located so as to meet or

satisfy any of the following requirements or

conditions:

* * *

(b) If the proposed additional or relocated

motor vehicle dealer is to be located in a

county with a population of more than 300,000

according to the most recent data of the

United States Census Bureau or the data of

the Bureau of Economic and Business Research

of the University of Florida:

1. Any existing motor vehicle dealer or

dealers of the same line-make have a licensed

franchise location within a radius of 12.5

miles of the location of the proposed

additional or relocated motor vehicle

Dealer . . . .(Emphasis Added)

11. The Respondent established as a matter of law that it

has standing to protest the proposed dealership. The Petitioners

presented no evidence to support a conclusion that the Respondent

has failed to provide adequate representation of the line-make

motor vehicles in the community or territory surrounding the

proposed site.

12. The record in this cause is devoid of any evidence

supporting the proposed dealership.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Highway

Safety and Motor Vehicles enter a Final Order denying the

approval of the Petitioners' proposed dealership.

DONE AND ENTERED this 18th day of February, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 18th day of February 2009.

COPIES FURNISHED:

Electra Theodorides-Bustle

Executive Director

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Paul J. Lane, Esquire

2755 East Oakland Park Boulevard, Suite 300

Fort Lauderdale, Florida 33306

Joel Ribler

Beach Cycle of Fort Lauderdale, Inc.

2190 Southwest 31st Avenue

Fort Lauderdale, Florida 33312

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Ronald Gardner

Snyder Computer Systems, Inc., d/b/a

Wildfire Motors

11 Technology Way

Steubenville, Ohio 43952

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.