08-001627 Peace Industry Group, Inc., And Mobility Tech, Inc. vs. Discount Scooters, Inc. Status: Closed Recommended Order on Wednesday, November 19, 2008.

Summary: Petitioners failed to appear at hearing. Thus, no evidence was presented that Respondent, the existing dealership, was not providing adequate representation of the line-make motor vehicles in the territory of proposed dealership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEACE INDUSTRY GROUP, INC., )

AND MOBILITY TECH, INC., )

)

Petitioners, )

)

vs. ) Case No. 08-1627

)

DISCOUNT SCOOTERS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

before Carolyn S. Holifield, a duly-designated Administrative

Law Judge of the Division of Administrative Hearings on

October 7, 2008, in Tampa, Florida.

APPEARANCES

For Petitioners: No appearance

For Respondent: Brooke S. Gentile

Discount Scooters, Inc.

5908 North Armenia Avenue

Tampa, Florida 33603

STATEMENT OF THE ISSUE

The issue is whether Petitioners should be permitted to

establish an additional dealership for the sale of motorcycles

manufactured by Astronautical Bashan Motorcycle Manufacturer

Company, Ltd., at 5720 North Florida Avenue, Tampa, Florida.

PRELIMINARY STATEMENT

On March 7, 2008, a notice was published in the Florida

Administrative Weekly that pursuant to Section 320.642, Florida

Statutes (2007), 1 Petitioner, Peace Industry Group, Inc. ("Peace

Industry"), intended "to allow the establishment of [Petitioner]

Mobility Tech, Inc. ["Mobility Tech"], as a dealership for the

sale of motorcycles manufactured by Astronautical Bashan

Motorcycle Manufacture Company, Ltd. (BASH), at 5720 North

Florida Avenue, Tampa (Hillsborough County), Florida

33604. . . ." On March 31, 2008, Respondent, Discount Scooters,

Inc. ("Respondent"), filed with the Department of Highway Safety

and Motor Vehicles ("Department") a "petition or complaint"

protesting the establishment of the additional dealership at the

proposed location. The matter was referred to the Division of

Administrative Hearings on April 3, 2008, to conduct the final

hearing.

This final hearing was scheduled for October 7, 2008.

Petitioners and Respondent were provided with written notice in

accordance with Subsection 120.569(2)(b), Florida Statutes. The

notice, in the form of a Notice of Hearing, was mailed on

May 27, 2008, to Petitioners and to Respondent at their

respective addresses of record.

As noted above, the final hearing in the case was held, as

noticed, on October 7, 2008. Despite the undersigned's waiting

about an hour to convene the hearing, Petitioners did not appear

to present their case. Respondent appeared at hearing through

its representative, Brooke S. Gentile.

Respondent presented the testimony of Brooke S. Gentile,

owner of Discount Scooters, Inc., and offered and had four

exhibits received into evidence.

The proceeding was recorded, but was not transcribed.

Neither of the parties submitted proposed recommended orders.

FINDINGS OF FACT

Based on the evidence adduced at hearing and the record as

a whole, the following Findings of Fact are made:

1. On March 7, 2008, the Florida Administrative Weekly

published a notice that Peace Industry Group intended to allow

the establishment of Mobility Tech as a dealership for the sale

of motorcycles manufactured by BASH at 5720 North Florida Avenue

in Tampa (Hillsborough County), Florida. The notice also stated

that the "new point" location for the proposed dealership is in

a "county of more than 300,000 population, according to the

latest population estimates of the University of Florida, Bureau

of Economic and Business Research."

2. Respondent is an existing franchised dealer of

motorcycles manufactured by BASH.

3. Respondent's dealership is located at 5908 North

Armenia Avenue in Tampa, Florida.

4. The driving distance between Respondent's dealership

and the location of the new dealership that Peace Industry

proposes to establish is 2.05 miles.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

6. The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§ 320.60 through 320.70, Fla. Stat.

7. Peace Industry Group and Mobility Tech are seeking the

Department's approval of a proposal to establish a new

dealership for the sale of motorcycles manufactured by BASH at

5720 North Florida Avenue in Tampa, Florida, pursuant to Section

320.642, Florida Statutes.

8. Subsection 320.642(1), Florida Statutes, 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. The Department is then required to

publish the notice in the Florida Administrative Weekly.

§ 320.642, Fla. Stat.

9. Subsection 320.642(2)(a), Florida Statutes, provides

that approval of a motor vehicle dealer's proposal to establish

an additional dealership within an area where the same line-make

dealer is represented shall be denied if:

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.

10. Subsection 320.642(3), Florida Statutes, sets forth

the requirements an existing franchised motor vehicle dealer

must meet in order to have standing to protest a proposed

additional dealership. That section provides in pertinent part:

(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 . . . .

11. In this case, the evidence established that Respondent

is an existing motor vehicle dealer which has a franchise

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

proposed additional motor vehicle dealer. The record also

established that the proposed additional 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 Bureau of Economic

Research of the University of Florida. Finally, the evidence

established that Respondent, the existing dealership, has a

licensed franchise location within a radius of 12.5 miles of the

location of the proposed additional motor vehicle dealer.

12. For the reasons stated in paragraph 11, Respondent has

standing to file a protest in this case.

13. Where, as in this case, Respondent filed a protest and

established that it has standing to do so, Petitioners, as

licensees, must meet the burden of proof enunciated in

Subsection 320.642(2)(a)2., Florida Statutes. According to that

provision, Respondent must establish that the existing

franchised dealer is not providing adequate representation of

the line-make motor vehicles in the subject territory.

14. In this case, Petitioners, as licensees, failed to

appear at the hearing after proper notice of the hearing was

issued. Thus, no evidence was presented to establish that

Respondent was not providing adequate representation of the

line-make motor vehicles in the territory in which the proposed

dealership intends to locate. Absent such evidence, Petitioners

failed to meet their burden of proof.

15. Having failed to meet their burden of proof, the

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Highway Safety and Motor

Vehicles issue a final order denying Petitioners, Peace Industry

Group, Inc., and Mobility Tech, Inc.'s, approval to establish a

new BASH motorcycle dealership at 5720 North Florida Avenue,

Tampa, Florida.

DONE AND ENTERED this 19th day of November, 2008, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 19th day of November, 2008.

ENDNOTE

1/ All references are to 2007 Florida Statutes, unless

otherwise indicated.

COPIES FURNISHED :

Carl Ford, Director

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 J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Carlos Urbizu

Mobility Tech, Inc., d/b/a Charlie's

Scooter Depot

5720 North Florida Avenue, Unit 2

Tampa, Florida 33604

Brooke S. Gentile

Discount Scooters, Inc.

5908 North Armenia Avenue

Tampa, Florida 33603

Lily Ji

Peace Industry Group, Inc.

6600-B Jimmy Carter Boulevard

Norcross, Georgia 30071

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.