09-001918 Scooters Management, Llc And Gator Moto, Llc vs. Swamp Cycle, Llc Status: Closed Recommended Order on Thursday, November 5, 2009.

Summary: Petitioner failed to appear and therefore failed to demonstrate inadequate representation of ZHNG motorcycles.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOOTERS MANAGEMENT, LLC and )

GATOR MOTO, LLC, )

)

Petitioners, )

)

vs. ) Case No. 09-1918

)

SWAMP CYCLE, LLC, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on October 27, 2009, in Gainesville,

Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Shawn Glasser

Swamp Cycles, LLC

633 Northwest 13th Street

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue is whether Petitioner's location for the sale of

ZHNG motorcycles is lawful pursuant to Section 320.642, Florida

Statutes.

PRELIMINARY STATEMENT

Scooters Management, LLC, of Houston, Texas, announced

through publication in the Florida Administrative Weekly, that

it intended to allow the establishment of Gator Moto, LLC,

(Gator) as a dealership for the sale of motorcycles manufactured

by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG), in Alachua

County, Florida. Swamp Cycle, LLC (Swamp) an existing ZHNG

motorcycle dealer in Alachua County, Florida, timely protested

the establishment of another dealership in Alachua County in a

filing with the Florida Department of Highway Safety and Motor

Vehicles (Department), on April 13, 2009.

The matter was forwarded to the Division of Administrative

Hearings by the Department and was filed April 15, 2009.

Pursuant to Subsection 320.699(2), Florida Statutes, 180 days

must elapse prior to the scheduling of a hearing on these types

of cases. Accordingly, the case was set for hearing on

October 27, 2009, more than 180 days from the time of the

objection. The case was heard as scheduled.

At the hearing, Swamp presented the testimony of its

principal Shawn Glasser.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Swamp is an established, licensed dealer in the sale of

ZHNG motorcycles. Its place of business is located at 633

Northwest 13th Street, Gainesville, Alachua County, Florida.

2. Gator sought to establish a dealership, also for the

sale of ZHNG motorcycles, at 7065 Northwest 22nd Street, Suite

A, Gainesville, Alachua County, Florida.

3. The distance between 633 Northwest 13th Street and 7065

Northwest 22nd Street, Gainesville, Alachua County, Florida, is

substantially less than 20 miles.

4. Alachua County, Florida, has a population of less than

300,000 people, according to the latest population estimates of

the University of Florida, Bureau of Economic and Business

Research.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2009).

6. Swamp has standing to protest the establishment of a

new dealership because Subsection 620.342(6), Florida Statutes,

provides that:

(6) 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:

(a) If the proposed additional or relocated

motor vehicle dealer is to be located in a

county with a population of less 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. The proposed additional or relocated

motor vehicle dealer is to be located in the

area designated or described as the area of

responsibility, or such similarly designated

area, including the entire area designated

as a multiple-point area, in the franchise

agreement or in any related document or

commitment with the existing motor vehicle

dealer or dealers of the same line-make as

such agreement existed upon October 1, 1988;

2. The existing motor vehicle dealer or

dealers of the same line-make have a

licensed franchise location within a radius

of 20 miles of the location of the proposed

additional or relocated motor vehicle

dealer; or

3. 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, the 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 20 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided the 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.

(b) The addition or relocation of a

service-only dealership shall not be subject

to protest if:

1. The applicant for the service-only

dealership location is an existing motor

vehicle dealer of the same line-make as the

proposed additional or relocated service-

only dealership;

2. There is no existing dealer of the same

line-make closer than the applicant to the

proposed location of the additional or

relocated service-only dealership; and

3. The proposed location of the additional

or relocated service-only dealership is at

least 7 miles from all existing motor

vehicle dealerships of the same line-make,

other than motor vehicle dealerships owned

by the applicant.

(c) In determining whether existing

franchised motor vehicle dealers are

providing adequate representations in the

community or territory for the line-make in

question in a protest of the proposed

addition or relocation of a service-only

dealership, the department may consider the

elements set forth in paragraph (2)(b),

provided:

1. With respect to subparagraph (2)(b)1.,

only the impact as it relates to service may

be considered;

2. Subparagraph (2)(b)3. shall not be

considered;

3. With respect to subparagraph (2)(b)9.,

only service facilities shall be considered;

and

4. With respect to subparagraph (2)(b)11.,

only the volume of service business

transacted shall be considered.

(d) If an application for a service-only

dealership is granted, the department shall

issue a license which permits only service,

as defined in s. 320.60 (16), and does not

permit the selling or leasing of new motor

vehicles, as defined in s. 320.60 (15). If a

service-only dealership subsequently seeks

to sell new motor vehicles at its location,

the notice and protest provisions of this

section shall apply.

7. Subsection 320.642(2)(a), Florida Statutes, provides

that once standing is established pursuant to Subsection

620.342(6), Florida Statutes, it is up to the applicant for a

license to demonstrate inadequate representation of the

particular make of motor vehicle in question. In this case, the

applicant, Moto, failed to appear, and thus failed to

demonstrate inadequate representation. Accordingly, Moto may

not be licensed as a dealer for the sale of ZHNG motorcycles.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Department of Highway Safety and Motor

Vehicles issue a final order disapproving the establishment of

another ZHNG motorcycle dealership in Alachua County, Florida.

DONE AND ENTERED this 5th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 5th day of November, 2009.

COPIES FURNISHED :

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Shawn Glasser

Swamp Cycles, LLC

633 Northwest 13th Street

Gainesville, Florida 32601

Justin Jackrel

Gator Moto, LLC

7065 Northwest 22nd Street, Suite A

Gainesville, Florida 32653

Neil Aussenberg

Scooters Management, LLC

6910 Renwick, Suite C

Houston, Texas 77081

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

Julia L. Jones, Executive Director

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.