09-001170 Keeway America, Llc And Sunset Point Scooter, Inc. vs. Retro Unlimited, Inc. Status: Closed Recommended Order on Friday, October 23, 2009.

Summary: No evidence was presented that protester represents a line make. Recommend the denial of the protest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEEWAY AMERICA, LLC, AND SUNSET )

POINT SCOOTER, INC., )

)

Petitioners, )

)

vs. ) Case No. 09-1170

)

RETRO UNLIMITED, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On September 22, 2009, an administrative hearing in this

case was conducted in Tallahassee, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioners: (No appearance)

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

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

point franchise motor vehicle dealership filed by Keeway

America, LLC, and Sunset Point Scooters, Inc. (Petitioners),

should be approved.

PRELIMINARY STATEMENT

By Notice published in the Florida Administrative Weekly

(Volume 35, Number 4; January 30, 2009) the Department of

Highway Safety and Motor Vehicles (Department) gave notice that

Keeway America, Inc., was seeking to establish a new point

franchise motor vehicle dealership for the sale of motorcycles

manufactured by Zhejiang Qianjiang Motorcycle Co. Ltd. (ZHQM) at

Sunset Point Scooters, Inc., 2300 Sunset Point Road, Clearwater,

Florida 33765.

Retro Unlimited, Inc. (Retro), filed a challenge to the

establishment of the dealership. By letter dated March 4, 2009,

the Department forwarded the challenge to the Division of

Administrative Hearings. On March 5, 2009, an Initial Order was

issued, directing the parties to identify the anticipated length

of the hearings, dates upon which the parties were available for

hearing, and suggested hearing locations. The Initial Order

stated that the failure to respond would result in the hearing

being scheduled in Tallahassee, Florida. No responses to the

Initial Order were filed, and the hearing was scheduled

accordingly.

Neither party appeared at the time scheduled for

commencement of the hearing. There were no witnesses or

exhibits admitted into evidence. No transcript of the hearing

was filed. No proposed recommended orders were filed.

FINDING OF FACT

1. There was no evidence presented at the hearing to

establish that Retro has a franchise agreement to sell or

service ZHQM motor vehicles, the line-make to be sold by Sunset

Point Scooters, Inc.

2. There was no evidence presented at the hearing that the

Retro dealership is physically located so as to meet the

statutory requirements for standing to protest the establishment

of the new point franchise motor vehicle dealership.

CONCLUSIONS OF LAW

3. 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).

4. Section 320.642, Florida Statutes (2008), provides in

relevant part as follows:

320.642 Dealer licenses in areas previously

served; procedure.--

(1) Any licensee who proposes to establish

an additional motor vehicle dealership or

permit the relocation of an existing dealer

to a location within a community or

territory where the same line-make vehicle

is presently represented by a franchised

motor vehicle dealer or dealers shall give

written notice of its intention to the

department. . . .

* * *

(2)(a) 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.

* * *

(3) An existing franchised motor vehicle

dealer or dealers shall have standing to

protest a proposed additional or relocated

motor vehicle dealer when 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

2. Any existing motor vehicle dealer or

dealers of the same line-make can establish

that during any 12-month period of the 36-

month period preceding the filing of the

licensee's application for the proposed

dealership, such dealer or its predecessor

made 25 percent of its retail sales of new

motor vehicles to persons whose registered

household addresses were located within a

radius of 12.5 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided such existing

dealer is located in the same county or any

county contiguous to the county where the

additional or relocated dealer is proposed

to be located.

5. The licensees in this case are Keeway America, LLC, and

Sunset Point Scooters, Inc. See §§ 320.60(8) and 320.61, Fla.

Stat. (2008).

6. Retro is the alleged existing franchised motor vehicle

dealer. Retro failed to present any evidence at the hearing to

establish that it meets the statutory requirements to establish

standing, by location or sales volume, to protest the

establishment of the new point franchise motor vehicle

dealership at issue in this case.

7. Prior to the hearing, the Petitioners filed documents

related to a Final Order issued in a separate case by the

Department wherein Retro appeared to have been granted a

conditional license to sell motorcycles manufactured by ZHQM at

a location other than that at issue in this proceeding. The

Administrative Law Judge is without jurisdiction to address any

matters related to the previously-issued Final Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

dismissing the protest filed by Retro in this case and granting

the Petitioners' request to establish a new point franchise motor

vehicle dealership for the sale of ZHQM motorcycles.

DONE AND ENTERED this 23rd 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 23rd day of October, 2009.

COPIES FURNISHED :

Gary Parr

Sunset Point Scooters, Inc.

6481 27th Avenue North

St. Petersburg, Florida 33710

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Doug Vitello

Sunset Point Scooters, Inc.

112 South Maywood Avenue

Clearwater, Florida 33765

Zhong Zhuang

Keeway America, LLC

2912 Skyway Circle, North

Irving, Texas 75038

Edward Dreyer, Jr.

Retro Unlimited, Inc.

3200 Dr. Martin Luther King, Jr. Street, North

St. Petersburg, Florida 33704

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.