09-002383 Snyder Computer Systems, Inc., D/B/A Wildfire Motors And Pc Scooter And Cycle, Llc vs. Moto Import Distributors, Llc Status: Closed Recommended Order on Monday, July 6, 2009.

Summary: Petitioner's application to establish a competing motorcycle dealership in Panama City should be denied for not meeting the statutory criteria in Section 320.642, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SNYDER COMPUTER SYSTEMS, INC., )

d/b/a WILDFIRE MOTORS AND PC )

SCOOTER AND CYCLE, LLC, )

)

Petitioners, )

)

vs. ) Case No. 09-2383

)

MOTO IMPORT DISTRIBUTORS, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on July 2,

2009, in Tallahassee, Florida, before Robert S. Cohen, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners Snyder Computer Systems, Inc., d/b/a

Wildfire Motors and PC Scooter and Cycle, L.L.C.:

No appearance

For Respondent Moto Import Distributors, L.L.C.:

Barry Wayne Wooten, pro se

12202 Hutchison Boulevard, Suite 72

Panama City Beach, Florida 32407

STATEMENT OF THE ISSUE

Whether the application of Snyder Computer Systems, Inc.,

d/b/a Wildfire Motors and PC Scooter and Cycle, L.L.C., to

establish an additional franchised dealership for the sale of

Zhejiang Summit Huawin Motorcycle Co. Ltd. (POPC) motorcycles to

be located at 3401 East Business Highway 98, Panama City, Bay

County, Florida 32401, should be granted.

PRELIMINARY STATEMENT

By publication in the April 17, 2009, Florida

Administrative Law Weekly, Petitioners provided notice of their

intent to establish a dealership for the sale of POPC

motorcycles at 3401 East Business Highway 98, Panama City,

Florida 32401. Pursuant to Section 320.642, Florida Statutes

(2008), Respondent Moto Import Distributors, L.L.C., timely

filed a protest of the establishment of the proposed dealership

with the Department of Highway Safety and Motor Vehicles

(Department).

The Department forwarded the letter of protest to the

Division of Administrative Hearings for assignment of an

administrative law judge to conduct a formal hearing.

At the hearing, Petitioners did not appear nor did they

submit any testimonial or documentary evidence. Respondent

presented the testimony of Barry Wayne Wooten and offered two

exhibits, which were admitted into evidence.

Since Petitioners did not appear, Respondent was informed

that a proposed recommended order was not necessary.

FINDINGS OF FACT

1. Respondent is a licensed motor vehicle dealer in

Florida and an existing POPC dealer located at 12202 Hutchison

Boulevard, Suite 72, Panama City Beach, Florida 32407.

2. There was no evidence which demonstrated Petitioners’

market share in the motorcycle market. There was no evidence

presented analyzing the motorcycle market in the Panama City

area. Likewise, there was no evidence presented regarding

anticipated growth in the market area. This type of evidence is

generally presented by the distributor or manufacturer of the

product. As indicated, Petitioners did not appear at the

hearing. Given this lack of evidence, the market share for

Petitioners’ motorcycles cannot be established.

3. Mr. Wooten, Respondent’s CEO, established that

Petitioners’ proposed location is within 25 miles of

Respondent’s current location.

4. Respondent has the ability to adequately serve the

needs of the population of Bay County, including Panama City and

Panama City Beach through its sales and service of the POPC

motorcycles.

5. In the current economy, the entry of Petitioners into

the POPC marketplace would have a significant negative financial

impact on Respondent’s ability to maintain its sales, service,

and customer base.

6. Respondent has expended significant sums on

advertising, both in print and online, and could not afford to

continue to advertise the POPC line if Petitioners’ application

were approved.

7. Respondent already works seven days a week to maintain

his market share, and would suffer significant financial losses

if Petitioners’ application were approved.

8. Respondent provides low prices for the products it

sells and would be forced out of business if Petitioners’

application were approved.

9. Petitioners seek to sell the identical motorcycles sold

by Respondent, and the Bay County market is not sufficiently

large to support a new entrant.

10. If Petitioners’ application is approved, Respondent

will be forced to close its business in Panama City Beach.

11. Respondent is in good standing with the distributors

of the products it sells.

12. Respondent’s license with the State of Florida is

active and in good standing.

13. There are no barriers to access for customers seeking

to purchase the products offered by Respondent. Respondent’s

location is centrally located for customers in Bay County,

including Panama City and Panama City Beach.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.57 and 120.569, Fla. Stat. (2008).

15. The scope of the inquiry in the case is set forth in

Section 320.642, Florida Statutes (2008), which provides in

pertinent part:

(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.

(b) In determining whether the existing

franchised motor vehicle dealer or dealers

are providing adequate representation in the

community or territory for the line-make,

the department may consider evidence which

may include, but is not limited to:

1. The impact of the establishment of the

proposed or relocated dealer on the

consumers, public interest, existing

dealers, and the licensee; provided,

however, that financial impact may only be

considered with respect to the protesting

dealer or dealers.

2. The size and permanency of investment

reasonably made and reasonable obligations

incurred by the existing dealer or dealers

to perform their obligations under the

dealer agreement.

3. The reasonably expected market

penetration of the line-make motor vehicle

for the community or territory involved,

after consideration of all factors which may

affect said penetration, including, but not

limited to, demographic factors such as age,

income, education, size class preference,

product popularity, retail lease

transactions, or other factors affecting

sales to consumers of the community or

territory.

4. Any actions by the licensees in denying

its existing dealer or dealers of the same

line-make the opportunity for reasonable

growth, market expansion, or relocation,

including the availability of line-make

vehicles in keeping with the reasonable

expectations of the licensee in providing an

adequate number of dealers in the community

or territory.

5. Any attempts by the licensee to coerce

the existing dealer or dealers into

consenting to additional or relocated

franchises of the same line-make in the

community or territory.

6. Distance, travel time, traffic patterns,

and accessibility between the existing

dealer or dealers of the same line-make and

the location of the proposed additional or

relocated dealer.

7. Whether benefits to consumers will

likely occur from the establishment or

relocation of the dealership which cannot be

obtained by other geographic or demographic

changes or expected changes in the community

or territory.

8. Whether the protesting dealer or dealers

are in substantial compliance with their

dealer agreement.

9. Whether there is adequate interbrand and

intrabrand competition with respect to said

line-make in the community or territory and

adequately convenient consumer care for the

motor vehicles of the line-make, including

the adequacy of sales and service

facilities.

10. Whether the establishment or relocation

of the proposed dealership appears to be

warranted and justified based on economic

and marketing conditions pertinent to

dealers competing in the community or

territory, including anticipated future

changes.

11. The volume of registrations and service

business transacted by the existing dealer

or dealers of the same line-make in the

relevant community or territory of the

proposed dealership.

16. The burden of proof in this proceeding is on

prevail, Petitioners must establish by a preponderance of the

evidence that the existing franchised dealer is not providing

adequate representation of the same line-make motor vehicles in

the designated community or territory.

17. Having weighed the statutory criteria enumerated in

Subsection 320.642(2), Florida Statutes (2008), in light of the

facts found herein, Petitioners have not met their burden of

proving by a preponderance of the evidence that the existing

POPC dealer is providing inadequate representation to the Panama

City/Bay County territory. By not appearing at the hearing,

Petitioners presented no evidence to demonstrate the benefits of

establishing the proposed dealership would outweigh any negative

impact on the existing dealer. Moreover, Respondent fully

demonstrated that it would suffer severe financial loss and

possible closure of its business if Petitioners’ application

were approved. Therefore, the establishment of Petitioners’

dealership at 3401 East Business Highway 98 in Panama City

should be denied.

RECOMMENDATION

Based upon 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’ dealership at 3401 East Business Highway 98, Panama

City, Florida.

DONE AND ENTERED this 6th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 6th day of July, 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

Donald Watts

PC Scooter & Cycle, LLC

1903 Brown Avenue

Panama City, Florida 32405

Dan Vogel

Snyder Computer Systems, Inc., d/b/a

Wildfire Motors

11 Technology Way

Steubenville, Ohio 43952

Barry Wayne Wooten

Moto Import Distributors, LLC

12202 Hutchison Boulevard, Suite 72

Panama City Beach, Florida 32407

Carl A. Ford, Director

Division of Motor Vehicles

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B-439

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Robin Lotane, General Counsel

Department of 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.