09-000939 Zongshen, Inc., And Scooter City Usa, Llc vs. Action Orlando Motorsports Status: Closed Recommended Order on Friday, May 29, 2009.

Summary: Petitioners failed to appear. No evidence was presented that existing motorcycle dealership does not adequately represent line-make in the territory of proposed dealer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZONGSHEN, INC., AND SCOOTER )

CITY USA, LLC, )

)

Petitioners, )

)

vs. ) Case No. 09-0939

)

ACTION ORLANDO MOTORSPORTS, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 18, 2009, an administrative hearing in this case was

held via teleconference from locations in Tallahassee and

Orlando, Florida, before Lawrence P. Stevenson, Administrative

Law Judge, Division of Administrative Hearings (DOAH).

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

The issue is whether Petitioners are entitled to a motor

vehicle dealership that is proposed to be located in Winter

Park, Florida.

PRELIMINARY STATEMENT

On February 6, 2009, Zongshen, Inc., and Scooter City USA,

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

February 16, 2009. By letter dated February 17, 2009, 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."

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 Zongshen Industrial Group (ZONG).

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

2650 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.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties and the subject

8. The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§§ 320.60-320.70, Fla. Stat.

9. 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.

10. 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. 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.

11. 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.

12. Respondent is an existing motor vehicle dealer who has

standing to file a protest of the proposed new dealership in

this case.

13. 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.

14. Petitioners made no appearance and presented no

evidence at the final hearing. Petitioners failed to meet their

burden of proof.

15. 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 franchise.

DONE AND ENTERED this 29th day of May, 2009, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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

29th day of May, 2009.

COPIES FURNISHED :

Carl A. Ford, Director

Division of Motor Vehicles

Department of Highway Safety and

Motor Vehicles

Neil Kirkland Building, Room B-439

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 James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

James Sursely

Action Orlando Motorsports

306 West Main Street

Apopka, Florida 32712

Patricia Fornes

Zongshen, Inc.

3511 Northwest 113th Court

Miami, Florida 33178

Randy Lozanas

Scooter City USA, LLC

2650 West Fairbanks Avenue

Winter Park, Florida 32789

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.