08-005867 Galaxy Powersports, Llc, D/B/A Jcl International, Llc, And Keb Trans, Inc., D/B/A Ez Riders Scooters vs. Power And Play Warehouse, Inc. Status: Closed Recommended Order on Thursday, June 18, 2009.

Summary: Denial of request for new dealership. Protesting dealer pleaded standing, but is not required to prove it because it is an affirmative defense that is waived if not timely raised.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GALAXY POWERSPORTS, LLC, d/b/a )

JCL INTERNATIONAL, LLC, and )

MX MOTORSPORTS, )

)

Petitioners, )

)

vs. ) Case No. 08-5865

)

POWER AND PLAY WAREHOUSE, INC., )

)

Respondent. )

________________________________)

)

GALAXY POWERSPORTS, LLC, d/b/a )

JCL INTERNATIONAL, LLC, and )

KEB TRANS, INC., d/b/a EZ RIDER )

SCOOTERS, )

)

Petitioners, )

)

vs. ) Case No. 08-5866

)

POWER AND PLAY WAREHOUSE, INC., )

)

Respondent. )

________________________________)

)

GALAXY POWERSPORTS, LLC, d/b/a )

JCL INTERNATIONAL, LLC, and )

KEB TRANS, INC., d/b/a EZ RIDER )

SCOOTERS, )

)

Petitioners, )

)

vs. ) Case No. 08-5867

)

POWER AND PLAY WAREHOUSE, INC., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted a hearing by

videoconference in Tallahassee, Florida, on May 14, 2009.

Respondent's representative, Respondent's attorney, and the

court reporter participated by videoconference in Fort

Lauderdale, Florida. No other person appeared at the final

hearing.

APPEARANCES

For Petitioners: no appearances

For Respondent: Paul J. Lane

2775 East Oakland Boulevard, Suite 300

Fort Lauderdale, Florida 33306

STATEMENT OF THE ISSUES

The issues are whether Galaxy Powersports, LLC, is entitled

to three licenses to establish new dealerships for the sale of

motorcycles, pursuant to Sections 320.642 and 320.699, Florida

Statutes (2008).

PRELIMINARY STATEMENT

As published on October 24, 2008, in the Florida

Administrative Weekly, by Notice of Publication for a New Point

Franchise Motor Vehicle Dealer, the Department of Highway Safety

and Motor Vehicles (Department) gave notice of its intent to

allow the establishment of MX Motor Toys, Inc., as a dealership

for the sale of motorcycles manufactured by Taizhou Zhongneng

Motorcycle Co. Ltd. (ZHNG) at 1335 Okeechobee Road, West Palm

Beach, Florida.

By letter dated November 10, 2008, Respondent filed a

Notice of Protest of the establishment of the new dealership.

The Notice of Protest states that Respondent sells motorcycles

manufactured by ZHNG at its dealership located at 1828 North

Dixie Highway, Lake Worth, Florida, and that this location is

within 12.5 miles of the proposed dealership. Department

transmitted the case to the Division of Administrative Hearings,

where it was assigned Case No. 08-5865.

As published on October 24, 2008, in the Florida

Administrative Weekly, by Notice of Publication for a New Point

Franchise Motor Vehicle Dealer, Department gave notice of its

intent to allow the establishment of Keb Trans, Inc., as a

dealership for the sale of motorcycles manufactured by Zhejiang

Taizhou Wangye Power Co., Ltd. (ZHEJ) at 7600 Wiles Road, Coral

Springs, Florida.

By letter dated November 10, 2008, Respondent filed a

Notice of Protest of the establishment of the new dealership.

The Notice of Protest states that Respondent sells motorcycles

manufactured by ZHEJ at its dealership located at 550 North

Flagler Avenue, Pompano Beach, Florida, and that this dealership

is within 12.5 miles of the proposed dealership. Department

transmitted the case to the Division of Administrative Hearings,

where it was assigned Case No. 08-5866.

As published on October 24, 2008, in the Florida

Administrative Weekly, by Notice of Publication for a New Point

Franchise Motor Vehicle Dealer, Department gave notice of its

intent to allow the establishment of Keb Trans, Inc., as a

dealership for the sale of motorcycles manufactured by ZHNG at

7600 Wiles Road, Coral Springs, Florida.

By letter dated November 10, 2008, Respondent filed a

Notice of Protest of the establishment of the new dealership.

The Notice of Protest states that Respondent sells motorcycles

manufactured by ZHNG at its dealership located at 550 North

Flagler Avenue, Pompano Beach, Florida, and that this dealership

is within 12.5 miles of the proposed dealership. Department

transmitted the case to the Division of Administrative Hearings,

where it was assigned Case No. 08-5867.

By Order of Consolidation entered January 20, 2009, the

Administrative Law Judge consolidated these three cases.

At the hearing, no one appeared as a witness,

representative, or attorney for any petitioner. Respondent

called one witness and offered into evidence no exhibits.

Respondent did not order a transcript.

FINDINGS OF FACT

1. Respondent operates a dealership at 1828 North Dixie

Highway, Lake Worth, Florida, at which it offers for sale the

complete line of ZHNG motorcycles. The proposed dealership at

1335 Okeechobee Boulevard, West Palm Beach, Florida, is located

less than six miles from Respondent's Lake Worth dealership.

2. Due to inadvertence, Respondent failed to present

evidence to establish the location of its Pompano Beach

dealership; the distance from the Pompano Beach dealership to

the proposed dealership at 7600 Wiles Road, Coral Springs,

Florida; and that the Pompano Beach dealership sells the ZHNG

and ZHEJ line makes. Obviously addressing only DOAH Case No.

08-5865, counsel for Respondent moved, toward the end of the

hearing, for a favorable order dismissing the case (i.e.,

denying applications), and the Administrative Law Judge

indicated that he would enter a recommended order essentially

granting the relief that Respondent sought. Only after the

hearing did the Administrative Law Judge realize that Respondent

had failed to present the evidence identified in the preceding

paragraph.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1),

and 320.699, Fla. Stat. (2008).

4. Section 320.642(1), Florida Statutes (2008), describes

the process under which a licensee notifies Department of its

intent to establish an additional motor vehicle dealership and

Department publishes a notice of the notification received by

Department and a statement that a petition or complaint by any

dealer "with standing" must be filed within 30 days of the date

of publication.

5. Section 320.642(2)(a), Florida Statutes (2008), states

that Department shall deny the licensee's application to

establish a new dealer 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.

6. Section 320.642(3)(b), Florida Statutes (2008), states:

(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; or

* * *

7. Section 320.642(8), Florida Statutes (2008), 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.

8. In the typical permit-application case, the applicant

has the burden of proof and proceeds first at hearing, although

the party challenging the proposed agency decision to issue the

permit must allege sufficient facts to identify the areas of

controversy. Department of Transportation v. J. W. C. Company,

Inc. , 396 So. 2d 778, 789 (Fla. 1st DCA 1981). The court

stressed, of course, that the first source of authority

concerning the burden of proof would be the relevant statutes

and rules. 396 So. 2d at 787.

9. In Case No. 08-5865, Respondent proved its standing,

and Petitioners failed to prove inadequate representation, so

this application must be denied.

10. The remaining cases raise the question of the proper

disposition, if no evidence is presented as to standing or the

merits--essentially, as though no party appears at the final

hearing. Section 320.642(2)(a), Florida Statutes (2008), states

that Department shall deny an application if: 1) a dealer with

standing timely files a protest and 2) the licensee fails to

show inadequate representation. The statute requires merely a

filing by a dealer, but proof from a licensee. The mention of

standing in connection with a protesting dealer is merely

descriptive of the dealer that can file a protest, but does not

impose the requirement, in every case, that a protesting dealer

must prove its standing. In most cases, the distance between

dealer locations is indisputable, and, if the parties do not

wish to contest it, the statute should not be construed to

require that they do so or even enter into a stipulation on this

matter.

11. To hold otherwise would be to elevate standing to

subject-matter jurisdiction. The case law holds that standing

is an affirmative defense that is waived, if not timely raised.

See , e.g. , Krivanek v. Take Back Tampa Political Committee , 625

So. 2d 840, 842 (Fla. 1993). In the remaining cases, Respondent

timely failed protests in a document that properly alleged that

it was a dealer with standing, and no opposing party ever filed

a pleading that could be construed as raising standing as a

defense, so standing has been waived.

12. For Case Nos. 08-5866 and 08-5867, then, the absence

of proof means that the applications must be denied.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Department of Highway Safety and Motor

Vehicles enter a final order denying the application in each of

these three cases.

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

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 June, 2009.

COPIES FURNISHED:

Carl A. Ford, Director

Division of Motor Vehicles

Department of Highway Safety

And Motor Vehicles

Neil Kirkman Building, Room B-439

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Robin Lotane, General Counsel

Department of Highway Safety

And Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Paul J. Lane, Esquire

2755 East Oakland Park Boulevard, Suite 300

Fort Lauderdale, Florida 33306

Rick Marabini

MX Motor Toys, Inc., d/b/a

MX Motorsports

300 South Austrailian Avenue, No. 1507

West Palm Beach, Florida 33401

Leo Su

Galaxy Powersports, LLC, d/b/a

JCL International, LLC

2667 Northhaven Road

Dallas, Texas 75229

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 must be filed with the agency that

will issue the final order in this case.