09-004758 Universal Parts, Inc., D/B/A Parts Forscooters.Com And Eco Green Machine, Llc, D/B/A Eco Green Machine vs. Tropical Scooters, Llc Status: Closed Recommended Order on Tuesday, March 30, 2010.

Summary: No evidence was presented that existing dealer is not adequately representing line-make.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

UNIVERSAL PARTS, INC., d/b/a )

PARTSFORSCOOTERS.COM, AND ECO )

GREEN MACHINE, LLC, d/b/a ECO )

GREEN MACHINE, )

)

Petitioners, )

)

vs. ) Case No. 09-4758

)

TROPICAL SCOOTERS, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 10, 2010, an administrative hearing in

this case was conducted by video teleconference between

St. Petersburg and Tallahassee, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: (No appearance)

For Respondent: Michelle R. Stanley, pro se

Tropical Scooters, LLC

11610 Seminole Boulevard

Largo, Florida 33778

STATEMENT OF THE ISSUE

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

point franchise motor vehicle dealership filed by Universal

Parts, Inc., d/b/a Partsforscooters.com, and Eco-Green Machine

LLC, d/b/a Eco Green Machine (Petitioners), should be approved.

PRELIMINARY STATEMENT

By Notice published in the Florida Administrative Weekly

(Volume 35, Number 32; August 14, 2009), the Department of

Highway Safety and Motor Vehicles (Department) gave notice that

Universal Parts, Inc., d/b/a Partsforscooters.com, was seeking

to establish a new point franchise motor vehicle dealership for

the sale of motorcycles manufactured by Taizhou Zhongneng

Motorcycle Co. Ltd. (ZHNG) at Eco-Green Machine, LLC, at

7000 Park Boulevard, Suite A, Pinellas Park, Florida 33781.

Tropical Scooters, LLC (Respondent), filed a challenge to

the establishment of the dealership. By letter dated August 28,

2009, the Department forwarded the challenge to the DOAH. On

September 1, 2009, 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.

The hearing venue was amended on March 4, 2010, to permit

the parties to appear by a video teleconference location in

St. Petersburg, Florida. At 4:37 p.m. on March 4, 2010, the

representative for Eco-Green Machine, LLC, filed a request for a

continuance of the hearing, asserting illness precluded

attendance at the hearing. The request, which is treated as a

Motion for Continuance, was not forwarded to the Administrative

Law Judge prior to the commencement of the hearing.

The motion failed to state whether other parties objected

to a continuance, failed to indicate that other parties had been

provided with a copy of the motion, and failed to suggest that

the asserted illness constituted an emergency. See Fla. Admin.

Code R. 28-106.104(4), 28-106.204(3), and 28-106.210.

Accordingly, the motion is hereby denied.

At the hearing, the Respondent presented the testimony of

one witness. No transcript of the hearing was filed. No

proposed recommended orders were filed.

FINDINGS OF FACT

1. The Respondent has a franchise agreement to sell ZHNG

motor vehicles, the line-make proposed to be sold by Eco Green

Machine, LLC.

2. The Respondent's dealership is located 4.1763 miles

from Eco Green Machine, LLC’s, dealership.

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

Respondent, or any other existing franchised dealer that

registers new motor vehicle retail sales or leases of the ZHNG

line-make within the community or territory of the proposed

dealership, are not providing adequate representation of the

ZHNG motor vehicles.

CONCLUSIONS OF LAW

4. 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).

5. 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.

6. The licensees in this case are the Petitioners. See

§§ 320.60(8) and 320.61, Fla. Stat. (2009).

7. The Respondent is the existing franchised motor vehicle

dealer within the territory. The evidence establishes that the

Respondent 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.

8. There was no evidence presented to suggest that the

Respondent is not providing adequate representation of the ZHNG

motor vehicle line-make.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

denying the application filed by the Petitioners to establish a

new point franchise motor vehicle dealership for the sale of ZHNG

motorcycles.

DONE AND ENTERED this 30th 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 30th day of March, 2010.

COPIES FURNISHED :

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Michelle R. Stanley

Tropical Scooters, LLC

11610 Seminole Boulevard

Largo, Florida 33778

Ronnie Pownall

ECO Green Machine, LLC, d/b/a

ECO Green Machine

7000 Park Boulevard, Suite A

Pinellas Park, Florida 33781

John Celestian

Universal Parts, Inc.

2401 72nd Street, North

St. Petersburg, Florida 33710

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.