09-001106 Zongshen, Inc., And Biker-Barn Source Sales, Inc. vs. Action Motorsports, Inc. Status: Closed Recommended Order on Friday, October 2, 2009.

Summary: There was no evidence that Respondent does not adequately represent a line-make. The application for the new dealership should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZONGSHEN, INC. AND BIKER-BARN )

SOURCE SALES, INC., )

)

Petitioners, )

)

vs. ) Case No. 09-1106

)

ACTION MOTORSPORTS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On September 2, 2009, an administrative hearing in this

case was held by video teleconference in Fort Myers and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner Zongshen, Inc.:

(No appearance)

For Petitioner Biker-Barn Source Sales, Inc.:

(No appearance)

For Respondent: Howard Chappell, Esquire

Law Offices of Howard Chappell

1514 Cumberland Court

Fort Myers, Florida 33919

STATEMENT OF THE ISSUE

The issue in the case is whether an application for a new

point franchise motor vehicle dealership filed by Zongshen,

Inc., and Biker-Barn Source Sales, Inc., should be approved.

PRELIMINARY STATEMENT

By notice published in the Florida Administrative Weekly

(Volume 35, Number 5; February 6, 2009), the Department of

Highway Safety and Motor Vehicles (Department) gave notice that

Zongshen, Inc. (Zongshen), was seeking to establish a new point

motor vehicle dealership in Cape Coral, Lee County, Florida,

with Biker-Barn Source Sales, Inc. (Biker-Barn), for the line-

make "Zongshen Industrial Group (ZONG)." A challenge to the

establishment of the dealership was filed with the Department by

an existing motorcycle dealership, Action Motorsports, Inc.

(Respondent).

By letter dated February 27, 2009, the Department forwarded

the challenge to the Division of Administrative Hearings. An

Initial Order was issued on March 2, 2009, directing the parties

to identify dates upon which the parties were available for

hearing. The Respondent filed a response to the Initial Order.

The hearing was scheduled in accordance with the Respondent's

response and with Subsection 320.699(2), Florida Statutes

(2009).

Neither Petitioner appeared or was otherwise represented at

the hearing. The Respondent was represented by counsel and had

one exhibit admitted into evidence. No transcript of the

hearing was filed. No proposed recommended orders were filed.

FINDINGS OF FACT

1. Biker-Barn is seeking to establish a new point

franchise motor vehicle dealership at 924 Del Prado Boulevard

South, Cape Coral, in Lee County, Florida, for line-make ZONG.

2. The Respondent is an existing franchise dealer for

ZONG-manufactured vehicles and is located within 12.5 miles of

the proposed new point motor vehicle dealership location. The

majority of the Respondent's vehicle sales come from within a

12.5-mile radius of the proposed dealership.

3. The Respondent timely filed a protest of the proposed

Biker-Barn dealership.

4. There is no evidence that the Respondent is not

providing adequate representation within the territory of the

motor vehicles at issue in this proceeding.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

6. Subsection 320.642(2)(a), Florida Statutes (2009),

provides as follows:

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. (Emphasis supplied)

7. The licensees in this case are Petitioners Zongshen and

Biker-Barn. See §§ 320.60(8) and 320.61, Fla. Stat. (2009).

8. As the licensees, the Petitioners have the burden of

establishing compliance with applicable statutory requirements

by a preponderance of the evidence presented at the hearing.

See § 320.642(2)(a)2., Fla. Stat. (2009). The Petitioners have

failed to establish that the Respondent is not providing

adequate representation of the ZONG line-make.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order

denying the Petitioners' application for establishment of the

new point franchise motor vehicle dealer franchise.

DONE AND ENTERED this 2nd day of October, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 2nd day of October, 2009.

COPIES FURNISHED :

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Howard Chappell, Esquire

Law Offices of Howard Chappell

1514 Cumberland Court

Fort Myers, Florida 33919

Joe Arguinzoni

Biker-Barn Source Sales, Inc.

924 Del Prado Boulevard South, Unit B

Cape Coral, Florida 33990

Patricia Fornes

Zongshen, Inc.

3511 Northwest 113th Court

Miami, Florida 33178

Carl A. Ford, Director

Division of Motor Vehicles

Highway Safety and Motor Vehicles

Neil Kirkman Building, Room B-439

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel

Highway Safety and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

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.