09-004102 El Sol Trading, Inc., And Eco Green Machine, Llc vs. Finish Line Scooters, Llc Status: Closed Recommended Order on Tuesday, March 9, 2010.

Summary: No evidence was presented that protestor has standing. New dealership application is approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EL SOL TRADING, INC., AND ECO )

GREEN MACHINE, LLC, )

)

Petitioners, )

)

vs. ) Case No. 09-4102

)

FINISH LINE SCOOTERS, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 10, 2010, an administrative hearing in this

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

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings (DOAH).

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 El Sol

Trading, Inc., and Eco-Green Machine, LLC (Petitioners), should

be approved.

PRELIMINARY STATEMENT

By Notice published in the Florida Administrative Weekly

(Volume 35, Number 27; July 10, 2009), the Department of Highway

Safety and Motor Vehicles (Department) gave notice that El Sol

Trading, Inc., was seeking to establish a new point franchise

motor vehicle dealership for the sale of motorcycles

manufactured by Zhejiang Leike Machinery Co. Ltd. (ZLMI) at

Eco-Green Machine, LLC, at 7000 Park Boulevard, Suite A,

Pinellas Park, Florida 33781.

Finish Line Scooters, LLC (Respondent), filed a challenge

to the establishment of the dealership. By letter dated

July 31, 2009, the Department forwarded the challenge to DOAH.

On the same date, DOAH issued an Initial Order, directing the

parties to identify the anticipated length of the hearing, dates

upon which the parties were available for hearing, and a

suggested hearing location. 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.

FINDINGS OF FACT

1. There was no evidence presented at the hearing to

establish that the Respondent has a franchise agreement to sell

or service ZLMI motor vehicles, the line-make to be sold by

Eco-Green Machine, LLC.

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

Respondent's 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 (2009), 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 El Sol Trading, Inc.,

and Eco-Green Machine, LLC. See §§ 320.60(8) and 320.61, Fla.

Stat. (2009).

6. The Respondent is the alleged existing franchised motor

vehicle dealer. The Respondent 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.

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 in this case by Finish Line

Scooters, LLC, and granting the Petitioners' request to establish

a new point franchise motor vehicle dealership for the sale of

ZLMI motorcycles.

DONE AND ENTERED this 9th day of March, 2010, 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 9th day of March, 2010.

COPIES FURNISHED :

Patcharee Clark

ECO Green Machine, LLC, d/b/a

ECO Green Machine

7000 Park Boulevard, Suite A

Pinellas Park, Florida 33781

John V. Leonard

Finish Line Scooters, LLC

6600 Gulf Boulevard

St. Pete Beach, Florida 33706

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Gloria Ma

El Sol Trading, Inc., d/b/a

Motobravo, Inc.

19877 Quiroz Court

City of Industry, California 91789

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 32399-0500

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.