09-005003 A 1 Motorscooters.Com, Llc And A 1 Motorscooters.Com, Llc vs. Eco Green Machine, Llc Status: Closed Recommended Order on Tuesday, January 12, 2010.

Summary: Respondent does not have standing to challenge Petitioner's proposed dealership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A 1 MOTORSCOOTERS.COM, LLC AND )

A 1 MOTORSCOOTERS.COM, LLC, )

)

Petitioner, )

)

vs. ) Case No. 09-5003

)

ECO GREEN MACHINE, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on December 18, 2009, in St. Petersburg, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stephen G. Mortimer, Esquire

Law Office of Thomas E. O'Hara

1901 Ulmerton Road, Suite 785

Clearwater, Florida 33762-2309

For Respondent: Patcharee Clark, pro se

Ronald Pownall, Interpreter/Spokesman

ECO Green Machine, LLC,

d/b/a ECO Green Machine

7000 Park Boulevard, Suite A

Pinellas Park, Florida 33781

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application

to establish a dealership to sell motorcycles manufactured by

JMSTAR Motorcycle Company should be approved.

PRELIMINARY STATEMENT

On February 27, 2009, a Notice was published in the Florida

Administrative Weekly ("FAW") indicating the desire of

Petitioner to establish a dealership to sell JMSTAR motorcycles

in Pinellas County, Florida. Respondent filed a protest against

the proposed dealership on June 4, 2009. The matter was

referred to the Division of Administrative Hearings ("DOAH") and

assigned to the undersigned Administrative Law Judge. Upon

motion of Petitioner, an Order was issued closing the file due

to lack of jurisdiction, i.e., because Respondent's protest was

not timely filed. ( See A1 Motorscooters.Com, LLC, and A1

Motorscooters.com v. ECO Green Machine, LLC , Case No. 09-3050,

DOAH June 29, 2009.) By Order of the Department of Highway

Safety and Motor Vehicles ("DHSMV") dated September 11, 2009,

the matter was referred back to DOAH due to the fact that

Respondent had not been appropriately noticed of the proposed

dealership. A final hearing was held at the date and place

indicated above.

At the final hearing, Petitioner called two witnesses:

Angela Starbuck, supervisor of DHSMV's dealer licensure section;

and Beth Miller. No exhibits were offered into evidence.

Respondent appeared pro se through the person of Patcharee

Clark; however, due to Clark's difficulty with the English

language, Respondent's position was enunciated through the

person of Ronald Pownall, service manager for Respondent. There

were no exhibits offered into evidence by Respondent.

The parties advised the undersigned that the transcript of

the final hearing would not be ordered. The parties asked leave

to submit proposed recommended orders on or before January 5,

2010. Petitioner timely submitted a Proposed Recommended Order,

which was duly considered in the preparation of this Recommended

Order. Respondent had indicated at final hearing that it would

not file a Proposed Recommended Order inasmuch as "the facts

speak for themselves." As of the date this Recommended Order

was completed, Respondent had not filed anything further with

the DOAH.

FINDINGS OF FACT

1. Petitioner is a Florida-limited liability company

located in Pinellas County, Florida. 1 Petitioner is in the

business of selling motorcycles and motorscooters. In

February 2009, Petitioner submitted to DHSMV a letter of intent

to establish A1 Motorscooters.com, LLC, as a new dealership for

the purpose of selling JMSTAR motorscooters. Notice of that

intent was duly published in the February 27, 2009, FAW,

Volume 35, Number 8.

2. In its letter of intent to DHSMV, Petitioner did not

list Respondent as a dealer with standing to protest its letter

of intent. That was due to the fact that Respondent did not

appear on the list of licensed dealers provided to Petitioner by

DHSMV (as will be discussed more fully herein).

3. Respondent is a Florida-limited liability company doing

business in Pinellas County, Florida. It sells different makes

of motorcycles. On June 4, 2009, Respondent was made aware of

Petitioner's letter of intent (some 98 days after Petitioner's

Notice was published). Respondent immediately filed a protest,

stating that Respondent was "approved" to sell the same line of

motorcycles and that Respondent "just received [their] license

and began selling several months ago."

4. In October 2008, Respondent received a Final Order from

DHSMV approving Respondent as a dealer for the JMSTAR line of

motorcycles. That Final Order gave Respondent a preliminary

approval to sell JMSTAR motorcycles, but only upon completion of

the application process and issuance of a license by the

Department. Respondent's license was, ultimately, issued

effective April 21, 2009. Thus, at the time of the FAW Notice

as to Petitioner's new dealership, Respondent had been

preliminarily approved, but was not a licensed dealer of JMSTAR

motorcyles.

5. Respondent had a prior agreement with SunL Group, Inc.

("SunL"), to sell motorcycles as a franchisee or independent

contractor. Under that arrangement, Respondent could sell

various kinds of motorcycles, including the JMSTAR line. At

some point in time, the agreement between SunL and Respondent

was terminated. Further, SunL's dealership license was revoked

by DHSMV on June 5, 2009. SunL was not a party to this

proceeding, and no one appeared on its behalf.

6. When Petitioner filed its letter of intent with DHSMV,

it asked for and received a list of all authorized dealers of

JMSTAR motorcycles so that those dealers could be appropriately

notified. DHSMV provided a list to Petitioner. Respondent was

not on the list because, at that time, Respondent was not yet a

licensed dealer of JMSTAR motorcyles. (Apparently SunL was a

licensed dealer and could have protested Petitioner's letter of

intent, but there is no evidence that it did so.)

7. Respondent did not provide any credible testimony or

other competent evidence at final hearing as to the impact of

Petitioner's proposed dealership on Respondent, nor were any of

the review criteria set forth in Florida Statutes concerning the

approval or denial of a new dealership discussed by either

party.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2009). 2

9. This matter was transferred to DOAH from DHSMV after

the prior case was closed "for the sole purpose of determining

the propriety of the protest [by Respondent] regarding issues

specifically within the purview of [S]ections 320.642 and

320.699, Florida Statutes." See letter from the dealer license

section administrator dated June 5, 2009.

10. Section 320.699, Florida Statutes, addresses the

process for obtaining an administrative hearing and states:

(1) A motor vehicle dealer, or person

with entitlements to or in a motor vehicle

dealer, who is directly and adversely

affected by the action or conduct of an

applicant or licensee which is alleged to be

in violation of any provision of ss. 320.60-

320.70, may seek a declaration and

adjudication of its rights with respect to

the alleged action or conduct of the

applicant or licensee by:

(a) Filing with the department a request

for a proceeding and an administrative

hearing which conforms substantially with

the requirements of ss. 120.569 and 120.57;

or

(b) Filing with the department a written

objection or notice of protest pursuant to

s. 320.642.

(2) If a written objection or notice of

protest is filed with the department under

paragraph (1)(b), a hearing shall be held

not sooner than 180 days nor later than

240 days from the date of filing of the

first objection or notice of protest, unless

the time is extended by the administrative

law judge for good cause shown. This

subsection shall govern the schedule of

hearings in lieu of any other provision of

law with respect to administrative hearings

conducted by the Department of Highway

Safety and Motor Vehicles or the Division of

Administrative Hearings, including

performance standards of state agencies,

which may be included in current and future

appropriations acts.

11. Section 320.642, Florida Statutes, sets forth the

process for establishing a new motor vehicle dealership. That

section states 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. The notice must 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 and 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 the notice the

department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice must state

that a petition or complaint by any dealer

with standing to protest pursuant to

subsection (3) must be filed within 30 days

following the date of publication of the

notice in the Florida Administrative Weekly.

The published notice must 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). The licensee shall pay

a fee of $75 and a service charge of $2.50

for each publication. Proceeds from the fee

and service charge shall be deposited into

the Highway Safety Operating Trust Fund.

Florida Statutes clearly require a proposed licensee to identify

all currently franchised dealers. Those dealers with standing

to protest are required to file a complaint within 30 days of

the FAW Notice. In this case, Respondent was not a licensed,

franchised dealer at the time Petitioner's Notice in the FAW was

filed. Therefore, Respondent did not have standing to protest

the proposed dealership.

12. The Department may provide to applicants, as a

courtesy, a list of any approved, but unlicensed, dealers in the

same line-make. There is no requirement that it do so, and why

it would do so is unclear since the approved dealers do not have

standing to file a protest. In this case, DHSMV did not

initially identify Respondent to Petitioner, but did so upon

receipt of the case from DOAH on remand. DHSMV then accepted

Respondent's protest, but sent the protest back to DOAH for a

determination of standing. It is clear Respondent does not have

standing in this case.

13. The remainder of Section 320.642, Florida Statutes

(specifically subsection (2)(b)1. through 11.), addresses the

determination of whether existing franchised dealers are

providing adequate representation in the community for the

line-make at issue. Inasmuch as Respondent does not have

standing to file a protest, that portion of the statute is not

relevant to this case.

14. Petitioner did not address the elements in Subsections

320.642(2)(b)1. through 11, Florida Statutes. However, in light

of Respondent's lack of jurisdiction to protest the proposed

dealership, Petitioner did not have a further burden to prove or

to address those elements.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Highway Safety and Motor Vehicles denying Respondent,

ECO Green Machine, LLC's, protest of Petitioner, A1

Motorscooter.com, LLC's, proposed dealership.

DONE AND ENTERED this 12th day of January, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

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 12th day of January, 2010.

ENDNOTES

1/ There was no explanation at final hearing as to why

A1 Motorscooters.com, LLC, is listed twice in the style of this

case. Inasmuch as that mystery is not necessary to the findings

made herein, it is of no consequence.

2/ All references to the Florida Statutes herein shall be to the

2009 codification.

COPIES FURNISHED :

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

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Patcharee Clark

ECO Green Machine, LLC, d/b/a

ECO Green Machine

7000 Park Boulevard, Suite A

Pinellas Park, Florida 33781

Stephen G. Mortimer, Esquire

Law Office of Thomas E. O'Hara

1901 Ulmerton Road, Suite 785

Clearwater, Florida 33762-2309

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.