09-002465 Galaxy Powersports, Llc, D/B/A Jcl International, Llc, And Extreme Motor Sales vs. Action Orlando Motorsports Status: Closed Recommended Order on Tuesday, January 12, 2010.

Summary: Petitioners failed to appear at hearing and no evidence was presented on their behalf. Thus, they did not meet their burden of proof and their request to establish an additional dealership should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GALAXY POWERSPORTS, LLC, d/b/a )

JCL INTERNATIONAL, LLC, AND )

EXTREME MOTOR SALES, )

)

Petitioners, )

)

vs. ) Case No. 09-2465

)

ACTION ORLANDO MOTORSPORTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

before Carolyn S. Holifield, a duly-designated Administrative

Law Judge of the Division of Administrative Hearings, on

November 10, 2009, by video teleconference at sites in Orlando

and Tallahassee, Florida.

APPEARANCES

For Petitioners: No appearance

For Respondent: James Sursely, Owner

Action Orlando Motor Sports

306 West Main Street

Apopka, Florida 32712

STATEMENT OF THE ISSUE

The issue is whether Petitioners should be permitted to establish an additional dealership for the sale of motorcycles

manufactured by Zhejiang Taizhou Wangye Power Company, Ltd.

("ZHEJ").

PRELIMINARY STATEMENT

On April 17, 2008, a notice was published in the Florida

Administrative Weekly that pursuant to Section 320.642, Florida

Statutes (2008), 1 Petitioner, Galaxy Powersports, LLC, d/b/a JCL

International, LLC ("JCL International"), intended to allow the

establishment of TGT Companies, d/b/a Extreme Motor Sales

("Extreme Motor Sales"), as a dealership for the sale of

motorcycles by ZHEJ at 1918 Orange Blossom Trail, Apopka (Orange

County), Florida ("Orange Blossom Trail location"). On May 7,

2008, Respondent, Action Orlando Motorsports ("Respondent"),

filed with the Department of Highway Safety and Motor Vehicles

("Department") a "petition or complaint" protesting the

establishment of the additional dealership at the proposed

location. The matter was referred to the Division of

Administrative Hearings on May 12, 2009, to conduct the final

hearing.

This final hearing was scheduled for November 12, 2009.

Petitioners and Respondent were provided with written notice in

accordance with Subsection 120.569(2)(b), Florida Statutes. The

notice, in the form of a Notice of Hearing, was mailed on

June 10, 2009, to Petitioners and Respondent at their respective

addresses of record.

The final hearing in this case was held, as noticed, on

November 12, 2009. Despite the undersigned's waiting 15 minutes

after the scheduled time of the hearing to convene the

proceeding, Petitioners did not appear to present their case.

Respondent appeared at hearing through its representative, James

Sursely.

Respondent presented the testimony of James Sursely, owner

of Action Orlando Motorsports, and offered and had three

exhibits received into evidence.

The proceeding was recorded, but not transcribed. Neither

of the parties submitted proposed recommended orders.

FINDINGS OF FACT

Based on the evidence adduced at hearing and the record as

a whole, the following Findings of Fact are made:

1. On April 17, 2009, the Florida Administrative Weekly

published a notice that JCL International intended to allow the

establishment of Extreme Motor Sales as a dealership for the

sale of motorcycles manufactured by ZHEJ at the Orange Blossom

Trail location. The notice also stated that the "new point"

location for the proposed dealership is in a "county of more

than 300,000 population, according to the latest population

estimates of the University of Florida, Bureau of Economic and

Business Research."

2. Respondent is an existing franchised dealer of

motorcycles manufactured by ZHEJ.

3. Respondent's dealership is located at 306 West Main

Street in Apopka, Florida.

4. The driving distance between Respondent's dealership

and the location of the new dealership that JCL International

proposes to establish is 3.89 miles.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

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

6. The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§§ 320.60 through 320.70, Fla. Stat.

7. JCL International and Extreme Motor Sales are seeking

the Department's approval of a proposal to establish a new

dealership for the sale of motorcycles manufactured by ZHEJ at

the Orange Blossom Trail location pursuant to Section 320.642,

Florida Statutes.

8. Subsection 320.642(1), Florida Statutes, requires a

motor vehicle dealer who proposes to establish an additional

motor vehicle dealership within an area already represented by

the same line-make vehicle to give written notice to the

Department of its intent. The Department is then required to

publish the notice in the Florida Administrative Weekly.

§ 320.642, Fla. Stat.

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

that approval of a motor vehicle dealer's proposal to establish

an additional dealership within an area where the same line-make

dealer is represented shall be denied if:

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.

10. Subsection 320.642(3), Florida Statutes, sets forth

the requirements an existing franchised motor vehicle dealer

must meet in order to have standing to protest a proposed

additional dealership. That section provides in pertinent part:

(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; or . . . .

11. In this case, the evidence established that Respondent

is an existing motor vehicle dealership which has a franchise

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

proposed additional motor vehicle dealership. The record also

established that the proposed additional motor vehicle

dealership is to be located in a county with a population of

more than 300,000 according to the most recent data of the

Bureau of Economic Research of the University of Florida.

Finally, the evidence established that Respondent, the existing

dealership, has a licensed franchise location within a radius of

12.5 miles of the location of the proposed additional motor

vehicle dealer.

12. For the reasons stated in paragraph 11, Respondent has

standing to file a protest in this case.

13. Where, as in this case, Respondent filed a protest and

established that it has standing to do so, Petitioners, as

licensees, must meet the burden of proof enunciated in

Subsection 320.642(2)(a)2., Florida Statutes. According to that

provision, Respondent must establish that the existing

franchised dealership is not providing adequate representation

of the line-make motor vehicles in the subject territory.

14. In this case, Petitioners, as licensees, failed to

appear at the hearing after proper notice of the hearing was

issued. Thus, no evidence was presented to establish that

Respondent was not providing adequate representation of the

line-make motor vehicles in the territory in which the proposed

dealership intends to locate. Absent such evidence, Petitioners

failed to meet their burden of proof.

15. Having failed to meet their burden of proof, the

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Highway Safety and Motor

Vehicles issue a final order denying Petitioners, Galaxy

Powersports, LLC, d/b/a JCL International, LLC, and Extreme

Motor Sales, approval to establish a new ZHEJ motorcycle

dealership at 1918 South Orange Blossom Trail, Apopka, Florida.

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

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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.

ENDNOTE

1/ All statutory references are to Florida Statutes (2008),

unless otherwise noted.

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

James Sursely

Action Orlando Motorsports

306 West Main Street

Apopka, Florida 32712

Leo Su

Galaxy Powersports, LLC, d/b/a

JCL International, LLC

2667 Northhaven Road

Dallas, Texas 75229

Tina Wilson

TGT Companies, Inc., d/b/a Extreme

Motor Sales

1918 South Orange Blossom Trail

Apopka, Florida 32703

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.