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.


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GALAXY POWERSPORTS, LLC, d/b/a )

13JCL INTERNATIONAL, LLC, and )

18MX MOTORSPORTS, )

21)

22Petitioners, )

24)

25vs. ) Case No. 08-5865

30)

31POWER AND PLAY WAREHOUSE, INC., )

37)

38Respondent. )

40________________________________)

41)

42GALAXY POWERSPORTS, LLC, d/b/a )

47JCL INTERNATIONAL, LLC, and )

52KEB TRANS, INC., d/b/a EZ RIDER )

59SCOOTERS, )

61)

62Petitioners, )

64)

65vs. ) Case No. 08-5866

70)

71POWER AND PLAY WAREHOUSE, INC., )

77)

78Respondent. )

80________________________________)

81)

82GALAXY POWERSPORTS, LLC, d/b/a )

87JCL INTERNATIONAL, LLC, and )

92KEB TRANS, INC., d/b/a EZ RIDER )

99SCOOTERS, )

101)

102Petitioners, )

104)

105vs. ) Case No. 08-5867

110)

111POWER AND PLAY WAREHOUSE, INC., )

117)

118Respondent. )

120________________________________)

121RECOMMENDED ORDER

123Robert E. Meale, Administrative Law Judge of the Division

132of Administrative Hearings, conducted a hearing by

139videoconference in Tallahassee, Florida, on May 14, 2009.

147Respondent's representative, Respondent's attorney, and the

153court reporter participated by videoconference in Fort

160Lauderdale, Florida. No other person appeared at the final

169hearing.

170APPEARANCES

171For Petitioners: no appearances

175For Respondent: Paul J. Lane

1802775 East Oakland Boulevard, Suite 300

186Fort Lauderdale, Florida 33306

190STATEMENT OF THE ISSUES

194The issues are whether Galaxy Powersports, LLC, is entitled

203to three licenses to establish new dealerships for the sale of

214motorcycles, pursuant to Sections 320.642 and 320.699, Florida

222Statutes (2008).

224PRELIMINARY STATEMENT

226As published on October 24, 2008, in the Florida

235Administrative Weekly, by Notice of Publication for a New Point

245Franchise Motor Vehicle Dealer, the Department of Highway Safety

254and Motor Vehicles (Department) gave notice of its intent to

264allow the establishment of MX Motor Toys, Inc., as a dealership

275for the sale of motorcycles manufactured by Taizhou Zhongneng

284Motorcycle Co. Ltd. (ZHNG) at 1335 Okeechobee Road, West Palm

294Beach, Florida.

296By letter dated November 10, 2008, Respondent filed a

305Notice of Protest of the establishment of the new dealership.

315The Notice of Protest states that Respondent sells motorcycles

324manufactured by ZHNG at its dealership located at 1828 North

334Dixie Highway, Lake Worth, Florida, and that this location is

344within 12.5 miles of the proposed dealership. Department

352transmitted the case to the Division of Administrative Hearings,

361where it was assigned Case No. 08-5865.

368As published on October 24, 2008, in the Florida

377Administrative Weekly, by Notice of Publication for a New Point

387Franchise Motor Vehicle Dealer, Department gave notice of its

396intent to allow the establishment of Keb Trans, Inc., as a

407dealership for the sale of motorcycles manufactured by Zhejiang

416Taizhou Wangye Power Co., Ltd. (ZHEJ) at 7600 Wiles Road, Coral

427Springs, Florida.

429By letter dated November 10, 2008, Respondent filed a

438Notice of Protest of the establishment of the new dealership.

448The Notice of Protest states that Respondent sells motorcycles

457manufactured by ZHEJ at its dealership located at 550 North

467Flagler Avenue, Pompano Beach, Florida, and that this dealership

476is within 12.5 miles of the proposed dealership. Department

485transmitted the case to the Division of Administrative Hearings,

494where it was assigned Case No. 08-5866.

501As published on October 24, 2008, in the Florida

510Administrative Weekly, by Notice of Publication for a New Point

520Franchise Motor Vehicle Dealer, Department gave notice of its

529intent to allow the establishment of Keb Trans, Inc., as a

540dealership for the sale of motorcycles manufactured by ZHNG at

5507600 Wiles Road, Coral Springs, Florida.

556By letter dated November 10, 2008, Respondent filed a

565Notice of Protest of the establishment of the new dealership.

575The Notice of Protest states that Respondent sells motorcycles

584manufactured by ZHNG at its dealership located at 550 North

594Flagler Avenue, Pompano Beach, Florida, and that this dealership

603is within 12.5 miles of the proposed dealership. Department

612transmitted the case to the Division of Administrative Hearings,

621where it was assigned Case No. 08-5867.

628By Order of Consolidation entered January 20, 2009, the

637Administrative Law Judge consolidated these three cases.

644At the hearing, no one appeared as a witness,

653representative, or attorney for any petitioner. Respondent

660called one witness and offered into evidence no exhibits.

669Respondent did not order a transcript.

675FINDINGS OF FACT

6781. Respondent operates a dealership at 1828 North Dixie

687Highway, Lake Worth, Florida, at which it offers for sale the

698complete line of ZHNG motorcycles. The proposed dealership at

7071335 Okeechobee Boulevard, West Palm Beach, Florida, is located

716less than six miles from Respondent's Lake Worth dealership.

7252. Due to inadvertence, Respondent failed to present

733evidence to establish the location of its Pompano Beach

742dealership; the distance from the Pompano Beach dealership to

751the proposed dealership at 7600 Wiles Road, Coral Springs,

760Florida; and that the Pompano Beach dealership sells the ZHNG

770and ZHEJ line makes. Obviously addressing only DOAH Case No.

78008-5865, counsel for Respondent moved, toward the end of the

790hearing, for a favorable order dismissing the case (i.e.,

799denying applications), and the Administrative Law Judge

806indicated that he would enter a recommended order essentially

815granting the relief that Respondent sought. Only after the

824hearing did the Administrative Law Judge realize that Respondent

833had failed to present the evidence identified in the preceding

843paragraph.

844CONCLUSIONS OF LAW

8473. The Division of Administrative Hearings has

854jurisdiction over the subject matter. §§ 120.569, 120.57(1),

862and 320.699, Fla. Stat. (2008).

8674. Section 320.642(1), Florida Statutes (2008), describes

874the process under which a licensee notifies Department of its

884intent to establish an additional motor vehicle dealership and

893Department publishes a notice of the notification received by

902Department and a statement that a petition or complaint by any

913dealer "with standing" must be filed within 30 days of the date

925of publication.

9275. Section 320.642(2)(a), Florida Statutes (2008), states

934that Department shall deny the licensee's application to

942establish a new dealer when:

9471. A timely protest is filed by a presently

956existing franchised motor vehicle dealer

961with standing to protest as defined in

968subsection (3); and

9712. The licensee fails to show that the

979existing franchised dealer or dealers who

985register new motor vehicle retail sales or

992retail leases of the same line-make in the

1000community or territory of the proposed

1006dealership are not providing adequate

1011representation of such line-make motor

1016vehicles in such community or territory.

1022The burden of proof in establishing

1028inadequate representation shall be on the

1034licensee.

10356. Section 320.642(3)(b), Florida Statutes (2008), states:

1042(3) An existing franchised motor vehicle

1048dealer or dealers shall have standing to

1055protest a proposed additional or relocated

1061motor vehicle dealer where the existing

1067motor vehicle dealer or dealers have a

1074franchise agreement for the same line-make

1080vehicle to be sold or serviced by the

1088proposed additional or relocated motor

1093vehicle dealer and are physically located so

1100as to meet or satisfy any of the following

1109requirements or conditions:

1112* * *

1115(b) If the proposed additional or

1121relocated motor vehicle dealer is to be

1128located in a county with a population of

1136more than 300,000 according to the most

1144recent data of the United States Census

1151Bureau or the data of the Bureau of Economic

1160and Business Research of the University of

1167Florida:

11681. Any existing motor vehicle dealer

1174or dealers of the same line-make have a

1182licensed franchise location within a radius

1188of 12.5 miles of the location of the

1196proposed additional or relocated motor

1201vehicle dealer; or

1204* * *

12077. Section 320.642(8), Florida Statutes (2008), provides:

1214The department shall not be obligated to

1221determine the accuracy of any distance

1227asserted by any party in a notice submitted

1235to it. Any dispute concerning a distance

1242measurement asserted by a party shall be

1249resolved by a hearing conducted in

1255accordance with ss. 120.569 and 120.57.

12618. In the typical permit-application case, the applicant

1269has the burden of proof and proceeds first at hearing, although

1280the party challenging the proposed agency decision to issue the

1290permit must allege sufficient facts to identify the areas of

1300controversy. Department of Transportation v. J. W. C. Company,

1309Inc. , 396 So. 2d 778, 789 (Fla. 1st DCA 1981). The court

1321stressed, of course, that the first source of authority

1330concerning the burden of proof would be the relevant statutes

1340and rules. 396 So. 2d at 787.

13479. In Case No. 08-5865, Respondent proved its standing,

1356and Petitioners failed to prove inadequate representation, so

1364this application must be denied.

136910. The remaining cases raise the question of the proper

1379disposition, if no evidence is presented as to standing or the

1390merits--essentially, as though no party appears at the final

1399hearing. Section 320.642(2)(a), Florida Statutes (2008), states

1406that Department shall deny an application if: 1) a dealer with

1417standing timely files a protest and 2) the licensee fails to

1428show inadequate representation. The statute requires merely a

1436filing by a dealer, but proof from a licensee. The mention of

1448standing in connection with a protesting dealer is merely

1457descriptive of the dealer that can file a protest, but does not

1469impose the requirement, in every case, that a protesting dealer

1479must prove its standing. In most cases, the distance between

1489dealer locations is indisputable, and, if the parties do not

1499wish to contest it, the statute should not be construed to

1510require that they do so or even enter into a stipulation on this

1523matter.

152411. To hold otherwise would be to elevate standing to

1534subject-matter jurisdiction. The case law holds that standing

1542is an affirmative defense that is waived, if not timely raised.

1553See , e.g. , Krivanek v. Take Back Tampa Political Committee , 625

1563So. 2d 840, 842 (Fla. 1993). In the remaining cases, Respondent

1574timely failed protests in a document that properly alleged that

1584it was a dealer with standing, and no opposing party ever filed

1596a pleading that could be construed as raising standing as a

1607defense, so standing has been waived.

161312. For Case Nos. 08-5866 and 08-5867, then, the absence

1623of proof means that the applications must be denied.

1632RECOMMENDATION

1633Based on the foregoing, it is

1639RECOMMENDED that the Department of Highway Safety and Motor

1648Vehicles enter a final order denying the application in each of

1659these three cases.

1662DONE AND ENTERED this 18th day of June, 2009, in

1672Tallahassee, Leon County, Florida.

1676___________________________________

1677ROBERT E. MEALE

1680Administrative Law Judge

1683Division of Administrative Hearings

1687The DeSoto Building

16901230 Apalachee Parkway

1693Tallahassee, Florida 32399-3060

1696(850) 488-9675 SUNCOM 278-9675

1700Fax Filing (850) 921-6847

1704www.doah.state.fl.us

1705Filed with the Clerk of the

1711Division of Administrative Hearings

1715this 18th day of June, 2009.

1721COPIES FURNISHED:

1723Carl A. Ford, Director

1727Division of Motor Vehicles

1731Department of Highway Safety

1735And Motor Vehicles

1738Neil Kirkman Building, Room B-439

17432900 Apalachee Parkway

1746Tallahassee, Florida 32399-0635

1749Robin Lotane, General Counsel

1753Department of Highway Safety

1757And Motor Vehicles

1760Neil Kirkman Building

17632900 Apalachee Parkway

1766Tallahassee, Florida 32399-0500

1769Michael James Alderman, Esquire

1773Department of Highway Safety and

1778Motor Vehicles

1780Neil Kirkman Building, Room A-432

17852900 Apalachee Parkway

1788Tallahassee, Florida 32344

1791Paul J. Lane, Esquire

17952755 East Oakland Park Boulevard, Suite 300

1802Fort Lauderdale, Florida 33306

1806Rick Marabini

1808MX Motor Toys, Inc., d/b/a

1813MX Motorsports

1815300 South Austrailian Avenue, No. 1507

1821West Palm Beach, Florida 33401

1826Leo Su

1828Galaxy Powersports, LLC, d/b/a

1832JCL International, LLC

18352667 Northhaven Road

1838Dallas, Texas 75229

1841NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1847All parties have the right to submit written exceptions within

185715 days from the date of this recommended order. Any exceptions

1868to this recommended order must be filed with the agency that

1879will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/20/2009
Proceedings: Final Order filed.
PDF:
Date: 07/15/2009
Proceedings: Agency Final Order
PDF:
Date: 06/26/2009
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 06/18/2009
Proceedings: Recommended Order
PDF:
Date: 06/18/2009
Proceedings: Recommended Order (hearing held May 14, 2009). CASE CLOSED.
PDF:
Date: 06/18/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
Date: 05/14/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 04/28/2009
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for May 14, 2009; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to Video Hearing).
PDF:
Date: 01/20/2009
Proceedings: Notice of Hearing (hearing set for May 14, 2009; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 01/20/2009
Proceedings: Order of Consolidation (DOAH Case Nos. 08-5865, 08-5866, and 08-5867).
PDF:
Date: 12/30/2008
Proceedings: Respondent`s Response to Initial Order filed.
PDF:
Date: 12/22/2008
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 11/24/2008
Proceedings: Initial Order.
PDF:
Date: 11/24/2008
Proceedings: Notice of Publication for a New Point Franchise Motor Vehicle Dealer filed.
PDF:
Date: 11/24/2008
Proceedings: Notice of Protest Pursuant to F.S. 340.642 (2) filed.
PDF:
Date: 11/24/2008
Proceedings: Agency referral filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
11/24/2008
Date Assignment:
11/24/2008
Last Docket Entry:
07/20/2009
Location:
Lauderdale Lakes, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (4):