09-003039 Galaxy Powersports, Llc D/B/A Jcl International, Llc And Solano Cycle, Inc. vs. Austin Global Enterprises, D/B/A New Scooters 4 Less Status: Closed Recommended Order on Thursday, December 24, 2009.

Summary: Respondent satisfied the statutory standing requirement, and Petitioners failed to appear. Recommend that the new franchise location be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GALAXY POWERSPORTS, LLC d/b/a )

JCL INTERNATIONAL, LLC and )

SOLANO CYCLE, INC., )

)

Petitioners, )

)

vs. ) Case No. 09-3039

)

AUSTIN GLOBAL ENTERPRISES, )

d/b/a NEW SCOOTERS 4 LESS, )

)

Respondent. )

)

RECOMMENDED ORDER

On December 17, 2009, an administrative hearing in this

case was held in Gainesville, Florida, before Lawrence P.

Stevenson, Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: (No appearance)

For Respondent: Collin Austin, pro se

Austin Global Enterprises, LLC

118 Northwest 14th Avenue, Suite D

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Gainesville, Florida.

PRELIMINARY STATEMENT

On May 29, 2009, Galaxy Powersports, LLC d/b/a JCL

International, LLC, and Solano Cycle, Inc. (Petitioners)

published a Notice of Publication for a New Point Franchise

Motor Vehicle Dealer in a County of Less than 300,000 Population

in the Florida Administrative Weekly . Respondent Austin Global

Enterprises, LLC d/b/a New Scooters 4 Less (Respondent) filed a

protest with the Department of Highway Safety and Motor Vehicles

(Department) on June 3, 2009. By letter dated June 3, 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.

Collin Austin, the owner of Austin Global Enterprises, LLC,

testified at the hearing. Respondent's Exhibit 1, a map

indicating the distance between the places of business of Solano

Cycle, Inc., and New Scooters 4 Less, was admitted into

evidence.

The hearing was not transcribed. Respondent waived the

filing of a proposed recommended order. All references to the

Florida Statutes are to the 2009 edition unless otherwise

indicated.

FINDINGS OF FACT

1. Respondent is an existing franchised dealer of

motorcycles manufactured by Shanghai Shenke Motorcycle Co. Ltd.

(SHEN).

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 118 Northwest

14th Avenue, Gainesville, Florida 32601.

4. Petitioners' proposed dealership would be located at

1024 South Main Street, Gainesville, Florida 32601.

5. The proposed dealership is within a 20-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)(a)2. of Section 320.642,

Florida Statutes, "if the proposed additional . . . motor

vehicle dealer is to be located in a county with a population of

less 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 20 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 24th day of December, 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

this 24th day of December, 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

Martin Solano

Solano Cycle, Inc.

1024 South Main Street, Suite A

Gainesville, Florida 32601

Leo Su

Galaxy Powersports, LLC, d/b/a

JCL International, LLC

2667 Northhaven Road

Dallas, Texas 75229

Collin Austin

Austin Global Enterprise, LLC

118 Northwest 14th Avenue, Suite D

Gainesville, Florida 32601

Julie L. Jones, Executive Director

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building

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

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.