09-004759 Universal Parts, Inc., D/B/A Parts Forscooters.Com And Eco Green Machine, Llc, D/B/A Eco Green Machine vs. Seminole Scooters, Inc., D/B/A Seminole Sales Status: Closed Recommended Order on Tuesday, April 6, 2010.

Summary: New point dealer failed to establish that the existing dealer (within 12.5 miles of the new point) does not meet the market demands.

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. 09-4759

)

SEMINOLE SCOOTERS, INC., d/b/a SEMINOLE SALES, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was conducted on March 2,

2010, by video teleconference between St. Petersburg, Florida,

and Tallahassee, Florida, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioners: No Appearance

For Respondent: David B. Dubin, Sales Manager

Seminole Scooters, Inc.

6239 Park Boulevard

Pinellas Park, Florida 33781

STATEMENT OF THE ISSUE

Whether the Petitioners' proposed dealership should be

approved.

PRELIMINARY STATEMENT

The Florida Department of Highway Safety and Motor Vehicles

forwarded the instant case to the Division of Administrative

Hearings for formal proceedings on August 28, 2009. Thereafter,

the case was scheduled for hearing and the parties were provided

notice of the hearing location and time.

At the hearing, the Respondent, Seminole Scooters, Inc.

d/b/a Seminole Sales, appeared and was represented by its sales

manager, David B. Dubin. The Petitioners, Universal Parts,

Inc., d/b/a PartsForScooters.Com and Eco Green Machine, LLC,

d/b/a Eco Green Machine did not appear. Mr. Dubin testified and

presented evidence in opposition to the proposed dealership. No

evidence was presented in support of the proposed dealership.

A transcript of the proceeding was not filed. The parties

were granted ten days from the hearing date within which to file

proposed recommended orders. The Respondent's proposal filed on

March 3, 2010, has been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. On August 14, 2009, in the Florida Administrative

Weekly, Volume 35, Number 32, a Notice of Publication for a New

Point Franchise Motor Vehicle Dealer in a County of More than

300,000 Population was published. The notice provided that

Universal Parts, Inc., d/b/a PartsForScooters.com, intended to

establish Eco Green Machine, LLC d/b/a Eco Green Machine as a

dealership for the sale of motorcycles manufactured by Taizhou

Zhongneng Motorcycle Co. Ltd. (ZHNG) at 7000 Park Boulevard,

Pinellas Park, Florida 33781, on or after September 4, 2009.

This proposed dealership was considered a "new point" as it did

not previously exist.

2. On August 23, 2009, the Respondent timely filed a

protest of the establishment of the Petitioners' dealership.

Respondent alleged that it currently services customers for the

line-make proposed by the Petitioners and that its location is

within 12.5 miles of the location proposed by the Petitioners.

3. The evidence presented established that the

Respondent's dealership is within two miles of the proposed

site. Mr. Dubin verified the driving distance and presented the

measured distance as computed by the website Googlemaps.com as

Respondent's Exhibit 1.

4. The Respondent has served the area for not less than

five years and has successfully promoted the vehicles proposed

to be sold by the line-make proposed by the Petitioners.

5. The Respondent established that its sales are within

12.5 miles of the proposed dealership.

6. The Respondent established that it currently markets

the motorcycle to be sold by the proposed dealership. More

specifically, the Respondent offered testimony that it has an

agreement for the same line-make vehicle to be sold by the

proposed dealer.

7. Notice of the formal hearing was provided to all

parties of record at their addresses of record.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.569, and 120.57(1), Fla. Stat (2009).

9. Section 320.605, Florida Statutes (2009), provides:

It is the intent of the Legislature to

protect the public health, safety, and

welfare of the citizens of the state by

regulating the licensing of motor vehicle

dealers and manufacturers, maintaining

competition, providing consumer protection

and fair trade and providing minorities with

opportunities for full participation as

motor vehicle dealers.

10. Section 320.642, Florida Statutes (2009), 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. Such notice shall state:

(a) The specific location at which the

additional or relocated motor vehicle

dealership will be established.

(b) The date on or after which the licensee

intends to be engaged in business with the

additional or relocated motor vehicle dealer

at the proposed location.

(c) The identity of all motor vehicle

dealers who are franchised to sell the same

line-make vehicle with licensed locations in

the county or any contiguous county to the

county where the additional or relocated

motor vehicle dealer is proposed to be

located.

(d) The names and addresses of the dealer-

operator and principal investors in the

proposed additional or relocated motor

vehicle dealership.

Immediately upon receipt of such notice the

department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice shall state

that a petition or complaint by any dealer

with standing to protest pursuant to

subsection (3) must be filed not more than

30 days from the date of publication of the

notice in the Florida Administrative Weekly.

The published notice shall describe and

identify the proposed dealership sought to

be licensed, and the department shall cause

a copy of the notice to be mailed to those

dealers identified in the licensee's notice

under paragraph (c).

(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 where 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. . . . (Emphasis Added)

11. The Respondent established as a matter of law that it

has standing to protest the proposed dealership. The

Petitioners presented no evidence to support a conclusion that

the Respondent has failed to provide adequate representation of

the line-make motor vehicles in the community or territory

surrounding the proposed site.

12. The record in this cause is devoid of any evidence

supporting the proposed dealership.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Highway

Safety and Motor Vehicles enter a final order denying the

approval of the Petitioners' proposed dealership.

DONE AND ENTERED this 6th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 April, 2010.

COPIES FURNISHED :

John Celestian

Universal Parts, Inc.

2401 72nd Street North

St. Petersburg, Florida 33710

Ronnie Pownall

ECO Green Machine, LLC, d/b/a

ECO Green Machine

7000 Park Boulevard, Suite A

Pinellas Park, Florida 33781

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

David Dubin

Seminole Scooters, Inc.

6239 Park Boulevard

Pinellas Park, Florida 33781

Carl A. Ford, Director

Division of Motor Vehicles

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.