09-003223
Zongshen, Inc., And Tropical Scooters, Llc vs.
Scooter Escapes, Llc, D/B/A Scooter Escapes
Status: Closed
Recommended Order on Thursday, November 19, 2009.
Recommended Order on Thursday, November 19, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ZONGSHEN, INC., AND TROPICAL )
13SCOOTERS, LLC, )
16)
17Petitioners, )
19)
20vs. ) Case No. 09-3223
25)
26SCOOTER ESCAPES, LLC, d/b/a SCOOTER ESCAPES, )
33)
34)
35Respondent. )
37)
38RECOMMENDED ORDER
40On October 20, 2009, an administrative hearing in this case
50was held by video teleconference in Tallahassee and
58St. Petersburg, Florida, before William F. Quattlebaum,
65Administrative Law Judge (ALJ), Division of Administrative
72Hearings.
73APPEARANCES
74For Petitioner Zongshen, Inc.:
78(No appearance)
80For Petitioner Tropical Scooters, LLC:
85Michele R. Stanley, Owner
8911610 Seminole Boulevard
92Largo, Florida 33778
95For Respondent: Chris Densmore, Owner
1001450 First Avenue, North St. Petersburg, Florida 33705
108STATEMENT OF THE ISSUE
112The issue in the case is whether an application for a new
124point franchise motor vehicle dealership filed by Zongshen,
132Inc., and Tropical Scooters, LLC, should be approved.
140PRELIMINARY STATEMENT
142By notice published in the Florida Administrative Weekly
150(Volume 35, Number 22; June 5, 2009), the Department of Highway
161Safety and Motor Vehicles (Department) gave notice that
169Zongshen, Inc. (Zongshen), was seeking to establish a new point
179motor vehicle dealership in Largo, Pinellas County, Florida,
187with Tropical Scooters, LLC (Tropical), for the line-make
"195Zongshen Industrial Group (ZONG)." A challenge to the
203establishment of the dealership was filed with the Department by
213an existing motor vehicle dealership, Scooter Escapes, LLC
221(Respondent).
222By letter dated June 16, 2009, the Department forwarded the
232challenge to the Division of Administrative Hearings. The
240previously-assigned ALJ issued an Initial Order on June 17,
2492009, directing the parties to identify dates upon which the
259parties were available for hearing. No responses to the Initial
269Order were filed, but Tropical filed an Answer and moved to
280dismiss the protest, asserting that the proposed dealership was
289outside the area served by the Respondent and that the
299Respondent therefore lacked standing to maintain the protest.
307The hearing was thereafter scheduled in accordance with
315Subsection 320.699(2), Florida Statutes (2009). The hearing was
323transferred to the undersigned ALJ on October 23, 2009.
332Prior to the hearing, both parties filed documents related
341to the disputed issue of distance between the two locations. At
352the commencement of the hearing, the parties presented the
361documents and argument related to the issue. The documents were
371admitted into the record as composite exhibits of the respective
381parties and are referenced herein. Neither party presented
389witnesses at the hearing.
393No transcript of the hearing was filed. No Proposed
402Recommended Orders were filed.
406FINDINGS OF FACT
409opical is seeking to establish a new point franchise
418motor vehicle dealership at 11610 Seminole Boulevard, Largo, in
427Pinellas County, Florida, for line-make ZONG.
4332. The Respondent is an existing franchise dealer for
442ZONG-manufactured vehicles located at 1450 First Avenue, North,
450St. Petersburg, in Pinellas County, Florida.
4563. The Respondent is located within 12.5 miles of the
466proposed new point motor vehicle dealership location.
4734. The Respondent timely filed a protest of the proposed
483dealership.
4845. The Petitioner presented no evidence that the
492Respondent is not providing adequate representation within the
500territory of the motor vehicles at issue in this proceeding.
510CONCLUSIONS OF LAW
5136. The Division of Administrative Hearings has
520jurisdiction over the parties to and subject matter of this
530proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).
5387. The Respondent has standing to challenge the
546application for the new dealership pursuant to Subsection
554320.642(3)(b)1., Florida Statutes (2008), which provides as
561follows:
562(3) An existing franchised motor vehicle
568dealer or dealers shall have standing to
575protest a proposed additional or relocated
581motor vehicle dealer when the existing motor
588vehicle dealer or dealers have a franchise
595agreement for the same line-make vehicle to
602be sold or serviced by the proposed
609additional or relocated motor vehicle dealer
615and are physically located so as to meet or
624satisfy any of the following requirements or
631conditions:
632* * *
635(b) If the proposed additional or relocated
642motor vehicle dealer is to be located in a
651county with a population of more than
658300,000 according to the most recent data of
667the United States Census Bureau or the data
675of the Bureau of Economic and Business
682Research of the University of Florida:
6881. Any existing motor vehicle dealer or
695dealers of the same line-make have a
702licensed franchise location within a radius
708of 12.5 miles of the location of the
716proposed additional or relocated motor
721vehicle dealer. . . .
726opical asserted that the measurement between the
733Respondent's location and the proposed dealership is greater
741than 12.5 miles and suggested that the Respondent's protest
750should be dismissed. In support of the argument, Tropical
759submitted several maps at the commencement of the hearing
768obtained from various internet mapping sources, showing an
776assortment of driving routes between the two locations, all of
786which exceeded 12.5 miles.
7909. Section 320.642, Florida Statutes (2008), does not
798provide any direction as to the manner in which the distance
809between an existing and a proposed dealership should be
818measured.
81910. The Florida Supreme Court has held that, absent
828statutory direction to the contrary, such distances are measured
837as a straight line between the closest points of the relevant
848parcels. See State ex rel. Fronton Exhibition Co. v. Stein , 144
859Fla. 387 (Fla. 1940), involving violation of a statute
868prohibiting location of a jai alai fronton within 1,000 feet of
880a public school; and State ex rel. Tourist Attractions, Inc. v.
891Lechner , 191 So. 2d 555, 557 (Fla. 1966), involving measurement
901of distance between harness racing tracks.
90711. The evidence established that Respondent's location is
915less than 12.5 miles from the proposed new dealership as
925measured by a straight line between the two locations.
93412. Subsection 320.642(2)(a), Florida Statutes (2008),
940provides as follows:
943An application for a motor vehicle dealer
950license in any community or territory shall
957be denied when:
9601. A timely protest is filed by a presently
969existing franchised motor vehicle dealer
974with standing to protest as defined in
981subsection (3); and
9842. The licensee fails to show that the
992existing franchised dealer or dealers who
998register new motor vehicle retail sales or
1005retail leases of the same line-make in the
1013community or territory of the proposed
1019dealership are not providing adequate
1024representation of such line-make motor
1029vehicles in such community or territory.
1035The burden of proof in establishing
1041inadequate representation shall be on the
1047licensee. (Emphasis supplied)
105013. The licensees in this case are Petitioners Zongshen
1059and Tropical. See §§ 320.60(8) and 320.61, Fla. Stat. (2008).
106914. As the licensees, the Petitioners have the burden of
1079establishing compliance with applicable statutory requirements
1085by a preponderance of the evidence presented at the hearing.
1095See § 320.642(2)(a)2., Fla. Stat. (2008). The Petitioners have
1104failed to establish that the Respondent is not providing
1113adequate representation of the ZONG line-make.
1119RECOMMENDATION
1120Based on the foregoing Findings of Fact and Conclusions of
1130Law, it is RECOMMENDED that the Department enter a final order,
1141denying the Petitioners' application for establishment of the
1149new point franchise motor vehicle dealer franchise.
1156DONE AND ENTERED this 19th day of November, 2009, in
1166Tallahassee, Leon County, Florida.
1170S
1171WILLIAM F. QUATTLEBAUM
1174Administrative Law Judge
1177Division of Administrative Hearings
1181The DeSoto Building
11841230 Apalachee Parkway
1187Tallahassee, Florida 32399-3060
1190(850) 488-9675
1192Fax Filing (850) 921-6847
1196www.doah.state.fl.us
1197Filed with the Clerk of the
1203Division of Administrative Hearings
1207this 19th day of November, 2009.
1213COPIES FURNISHED :
1216Patricia Fornes
1218Zongshen, Inc.
12203511 Northwest 113th Court
1224Miami, Florida 33178
1227Jennifer Clark
1229Department of Highway Safety
1233and Motor Vehicles
1236Neil Kirkman Building, Room A-308
12412900 Apalachee Parkway
1244Tallahassee, Florida 32399-0635
1247Chris Densmore
1249Scooter Escapes, LLC, d/b/a
1253Scooter Escapes
12551450 First Avenue, North
1259St. Petersburg, Florida 33705
1263Michele R. Stanley
1266Tropical Scooters, LLC
126911610 Seminole Boulevard
1272Largo, Florida 33778
1275Carl A. Ford, Director
1279Division of Motor Vehicles
1283Department of Highway Safety
1287and Motor Vehicles
1290Neil Kirkman Building, Room B-439
12952900 Apalachee Parkway
1298Tallahassee, Florida 32399-0500
1301Robin Lotane, General Counsel
1305Department of Highway Safety
1309and Motor Vehicles
1312Neil Kirkman Building
13152900 Apalachee Parkway
1318Tallahassee, Florida 32399-0500
1321NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1327All parties have the right to submit written exceptions within
133715 days from the date of this recommended Order. Any exceptions
1348to this Recommended Order should be filed with the agency that
1359will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 11/19/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 10/30/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 10/28/2009
- Proceedings: Letter to Judge Quattlebaum from C. Densmore enclosing case support documents filed.
- PDF:
- Date: 10/23/2009
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for October 30, 2009; 9:00 a.m.; St. Petersburg and Tallahassee, FL; amended as to type of hearing and location).
- PDF:
- Date: 10/08/2009
- Proceedings: Notice of Hearing (hearing set for October 30, 2009; 9:00 a.m.; St. Petersburg, FL).
Case Information
- Judge:
- WILLIAM F. QUATTLEBAUM
- Date Filed:
- 06/17/2009
- Date Assignment:
- 10/23/2009
- Last Docket Entry:
- 12/23/2009
- Location:
- St. Petersburg, Florida
- District:
- Middle
- Agency:
- ADOPTED IN TOTO
Counsels
-
Jennifer Clark, Agency Clerk
Address of Record -
Chris Densmore
Address of Record -
Patricia Fornes
Address of Record -
Mark W. Stanley
Address of Record -
Michele R Stanley
Address of Record -
Michele R. Stanley
Address of Record