08-004570 Ls Motorsports, Llc And The Orlando Scooter Shop, Llc vs. James Sursely, D/B/A Action Orlando Motorsports Status: Closed Recommended Order on Tuesday, April 7, 2009.

Summary: Petitioners failed to appear, Respondent proved standing to protest, and Petitioners failed to meet their burden of proof. The dealership is denied

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LS MOTORSPORTS, LLC AND THE )

ORLANDO SCOOTER SHOP, LLC, )

)

Petitioners, )

)

vs. ) Case No. 08-4570

)

JAMES SURSELY, d/b/a ACTION ORLANDO MOTORSPORTS, )

)

)

Respondent. )

)

RECOMMENDED ORDER

This Cause came on for formal administrative hearing before

Daniel M. Kilbride, Administrative Law Judge (ALJ) of the

Division of Administrative Hearings (DOAH), on March 24, 2009,

by video teleconference between Tallahassee and Orlando,

Florida.

APPEARANCES

For Petitioners: No appearance

For Respondent: James Sursely, pro se

Action Orlando Motorsports

306 West Main Street

Apopka, Florida 32712

STATEMENT OF THE ISSUE

Whether Petitioners are entitled to establish a new motor vehicle dealership that is proposed to be located in Winter

Park, Florida, for the sale of motorcycles manufactured by

Chunfeng Holding Group Co. Ltd. (CFHG).

PRELIMINARY STATEMENT

On August 15, 2008, LS Motorsports, LLC, and The Orlando

Scooter Shop, LLC, (Petitioners) published a Notice of

Publication for a New Point Franchise Motor Vehicle Dealer in a

County of More than 300,000 Population in the Florida

Administrative Weekly . Respondent Action Orlando Motorsports

filed a protest with the Department of Highway Safety and Motor

Vehicles (Department) on September 12, 2008. By letter dated

September 16, 2008, the Department referred the matter to DOAH

to assign an administrative law judge to conduct a hearing "for

the sole purpose of determining the propriety of the protest

regarding issues specifically within the purview of Sections

320.642 and 320.699, Florida Statutes."

This matter was set for hearing by Notice of Hearing, dated

October 15, 2008, to all parties of record. On March 12, 2009,

an Amended Notice of Hearing by Video Teleconference was sent to

all parties of record. None of the parties filed a response to

the undersigned Administrative Law Judge’s Order of Pre-hearing

Instructions. After waiting approximately 15 minutes, the

hearing was convened as scheduled. Respondent was present and

ready to proceed. Petitioners made no appearance.

James Sursely, the owner of Action Orlando Motorsports,

testified at the hearing.

The hearing was not transcribed. Respondent waived the

filing of a proposed recommended order. All references to the

Florida Statutes are to the 2008 edition unless otherwise

indicated.

FINDINGS OF FACT

1. Respondent is an existing franchised dealer of

motorcycles manufactured by Chunfeng Holding Group. Co., Ltd.

(CFHG).

2. Petitioners have proposed the establishment of a new

dealership to sell the same line and make of motorcycles as

those sold by Respondent.

3. Respondent's dealership is located at 306 West Main

Street, Apopka, Florida 32712.

4. Petitioners' proposed dealership would be located at

1710 West Fairbanks Avenue, Winter Park, Florida 32789.

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

Respondent's dealership.

6. Respondent has standing to protest the establishment of

the proposed dealership.

7. No evidence was presented that there is inadequate

representation of such line-make motor vehicles in such

community.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the parties and the subject

9. The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§§ 320.60-320.70, Fla. Stat.

10. 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 to establish a new franchise. The

statute also provides that any affected dealership may protest

the establishment of a new franchise in its territory.

11. Subsection 320.642(2), Florida Statutes, establishes

the standards of review to determine if establishment of a new,

competing motor vehicle franchise should be granted.

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

in relevant part:

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.

13. Pursuant to Subsection (3)(b)1. of Section 320.642,

Florida Statutes, "if the proposed additional . . . motor

vehicle dealer is to be located in a county with a population of

more than 300,000," as in the instant case, then any existing

motor vehicle dealer of the same line-make whose licensed

franchise location is within a radius of 12.5 miles of the

proposed additional dealer has standing to file a protest within

the meaning of Subsection (2)(a)1. of the statute.

14. Respondent is an existing motor vehicle dealer who has

standing to file a protest of the proposed new dealership in

this case.

15. The burden is therefore on Petitioners to prove that

there is "inadequate representation" in the community or

territory of the proposed new dealership, according to the

criteria set forth in Subsection 320.642(2)(b), Florida

Statutes.

16. Petitioners made no appearance and presented no

evidence at the final hearing. Petitioners failed to meet their

burden of proof.

17. The approval sought by Petitioners must therefore be

denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Department of Highway Safety and Motor Vehicles

enter a final order denying the establishment of Petitioners'

proposed dealership.

DONE AND ENTERED this 7th day of April, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 7th day of April, 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

Michael J. Alderman, Esquire

Department of Highway Safety

And Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Pierre Le Poureau

The Orlando Scooter Shop, LLC

1710 West Fairbanks Avenue

Winter Park, Florida 32789

James Sursely

Action Orlando Motorsports

306 West Main Street

Apopka, Florida 32712

Terry Nesbitt

LS Motor Sports, LLC

10215 South Sam Houston Parkway West

Suite 100

Houston, Texas 77071

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.