09-003024 Galaxy Powersports, Llc, D/B/A Jcl International, Llc And J And F South Florida Investments, Inc., D/B/A Treasure Coast Scooters And Things vs. Wenmark, Inc. D/B/A All The Wheel Toys
 Status: Closed
Recommended Order on Monday, November 2, 2009.


View Dockets  
Summary: Petitioner failed to prove that the existing dealership is inadequately representing the same line make in the territory.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8GALAXY POWERSPORTS, LLC d/b/a )

13JCL INTERNATIONAL, LLC, AND )

18J & F SOUTH FLORIDA )

24INVESTMENTS, INC. d/b/a )

28TREASURE COAST SCOOTERS AND )

33THINGS, )

35)

36Petitioners, )

38) Case No. 09-3010

42vs. )

44)

45WENMARK, INC. d/b/a ALL THE )

51WHEEL TOYS, )

54)

55Respondent. ) )

58)

59GALAXY POWERSPORTS, LLC, d/b/a JCL INTERNATIONAL, LLC AND J )

69AND F SOUTH FLORIDA )

74INVESTMENTS, INC., d/b/a )

78TREASURE COAST SCOOTERS AND )

83THINGS, )

85)

86)

87Petitioners, )

89)

90vs. ) Case No. 09-3024

95)

96WENMARK, INC., d/b/a ALL THE )

102WHEEL TOYS, )

105)

106Respondent. )

108_______________________________

109RECOMMENDED ORDER

111As previously scheduled, a final hearing was held on

120October 6, 2009, at video teleconference sites in Fort Pierce

130and Tallahassee, Florida, before Administrative Law Judge

137Eleanor M. Hunter of the Division of Administrative Hearings

146(DOAH).

147APPEARANCES

148For Petitioners: Galaxy Powersports LLC d/b/a

154JCL International, LLC; and

158For Petitioner: Guy Young, pro se

164J & F South Florida Investments, Inc.

171d/b/a Treasure Coast Scooters and Things:

1777320 South US 1

181Port St. Lucie, Florida 34952

186For Respondent: Mark Mourning, pro se

192WenMark Inc., d/b/a All The

197Wheel Toys

1991540 Northwest Federal Highway

203Stuart, Florida 34994

206STATEMENT OF THE ISSUE

210The issue is whether the Petitioners' proposal for a dealer

220to sell two new lines of motorcycles should be approved.

230PRELIMINARY STATEMENT

232Galaxy Powersports, LLC d/b/a JCL International LLC

239(Galaxy) published two separate “Notices of Publication for a

248New Point Franchise Motor Vehicle Dealer in a County of More

259than 300,000 Population” in the Florida Administrative Weekly on

269October 10, 2008. The notices stated an intent to permit J & F

282South Florida Investments, Inc. d/b/a Treasure Coast Scooters

290and Things (Treasure Coast) to sell two separate lines of

300motorcycles. On October 16, 2008, Respondent, WenMark Inc.,

308d/b/a All The Wheel Toys, timely filed challenges to having the

319dealership sell both line-makes.

323The Florida Department of Highway Safety and Motor Vehicles

332(the Department) forwarded that challenges to DOAH on June 3,

3422009, and assigned DOAH Case Nos. 09-3010 and 09-3024. At the

353request of the parties, the cases were consolidated for hearing.

363Initially set for August 27, 2009, at the request of Guy Young,

375the hearing was rescheduled for October 6, 2009.

383At the hearing, Petitioner presented the testimony of

391Mr. Young. Respondent presented the testimony of Mark Mourning

400and subsequently filed a 13-page Composite Exhibit, which was

409received into evidence.

412A Transcript of the proceeding was not filed, as allowed on

423or before October 20, 2009. Neither party filed a proposed

433order, as they were permitted to do up to and including

444October 28, 2009.

447FINDINGS OF FACT

4501. On October 10, 2008, in the Florida Administrative

459Weekly, Volume 34, Number 41, two separate Notices of

468Publication for a New Point Franchise Motor Vehicle Dealer in a

479County of More than 300,000 Population were published.

4882. The first notice provided, in relevant part, as

497follows:

498Pursuant to Section 320.642, Florida

503Statutes, notice is given that [Galaxy]

509intends to allow the establishment of

515[Treasure Coast] as a dealership for the

522sale of motorcycles manufactured by Taizhou

528Zhongneng Motorcycle Co. Ltd. (ZHNG) at 7320

535South U.S. 1, Port St. Lucie (St. Lucie

543County) Florida 34952 on or after

549September 26, 2008.

5523. The second notice provided, in relevant part, as

561follows:

562Pursuant to Section 320.642, Florida

567Statutes, notice is given that [Galaxy]

573intends to allow the establishment of

579[Treasure Coast] as a dealership for the

586sale of motorcycles manufactured by Zhejiang

592Taizhou Wangye Power Co. Ltd (ZHEJ) at 7320

600South U.S. 1, Port St. Lucie (St. Lucie

608County) Florida 34952 on or after September

61526, 2008.

6174. On October 16, 2008, Respondent filed the following

626letters of protest with the Department of Highway Safety and

636Motor Vehicles:

638In regards to the intent of [Galaxy] to

646establish a Taizhou Zhongneng Motorcycle Co.

652Ltd. (ZHNG) with [Treasure Coast] for the

659sale of motorcycles at 7320 South U.S. 1,

667Port St. Lucie, Fl [sic] 34952. This letter

675represents a written complaint to their

681application for this dealership, because we

687already represent said dealership.

691and

692In regards to the intent of [Galaxy] to

700establish a Zhejiang Taizhou Wangye Power

706Co. Ltd (ZHEJ) with [Treasure Coast] for the

714sale of motorcycles at 7320 South U.S. 1,

722Port St. Lucie, Fl [sic] 34952. This letter

730represents a written complaint to their

736application for this dealership, because we

742already represent said dealership.

7465. Both letters made the following additional

753representations:

7541. The proposed dealership would be within

76120 miles of our dealership, as measured by

769straight line distance. They are 8.61 miles

776away per mapquest.

7792. The proposed dealership is to be located

787within the contractual area outlined in our

794dealer agreement, as we have a 20 mile

802exclusivity.

8033. We have made more than 25% of our retail

813sales to persons whose registered household

819addresses are within 20 straight line miles

826of the proposed dealership during the past

83312 month period.

8366. By letter dated October 22, 2008, the Department

845apparently tried to refer this matter to DOAH. For reasons that

856were not explained, however, this matter was not received at

866DOAH until it was referred again by letter dated June 3, 2009.

8787. The protest filed by Respondent was timely.

8868. The parties agreed that the population of St. Lucie

896County is over 300,000, and that Respondent's dealership is 8.61

907miles from the proposed site.

9129. Respondent has dealer agreements to sell various lines

921of motorcycles, including motorcycles manufactured by Zhejiang

928Taizhou Wangye Power Co., Ltd. (ZHEJ); and motorcycles

936manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG).

94410. At the hearing, Mr. Young agreed that the evidence

954showed that, as a dealer for Zhejiang Taizhou Wangye Power Co.

965Ltd. (ZHEJ), Respondent has adequately promoted that line and

974has made 25 percent or more of its retail sales to household

986addresses within 12.5 miles of the proposed dealership.

99411. At the hearing, Mr. Young said that the only

1004motorcycles at issue were those manufactured by Taizhou

1012Zhongneng Motorcycle Co. Ltd. (ZHNG). Specifically, he

1019questioned whether the line represented sufficient numbers of

1027sales within the territory.

103112. Mr. Mourning explained that the ZHNG line was also

1041called ZNEN before 2009. He produced records that confirm that

1051Taizhou Zhongneng Motorcycle Co. Ltd., used ZNEN as the make of

1062its vehicles in 2008. Taken together, his sales records for

1072ZHNG and ZNEN motorcycles demonstrated that he also adequately

1081and successfully represents that line in the territory.

1089CONCLUSIONS OF LAW

109213. The Division of Administrative Hearings has

1099jurisdiction over the parties to and the subject matter of these

1110proceedings. §§ 120.569, and 120.57(1), Fla. Stat (2008).

111814. Section 320.605, Florida Statutes (2008), provides:

1125It is the intent of the Legislature to

1133protect the public health, safety, and

1139welfare of the citizens of the state by

1147regulating the licensing of motor vehicle

1153dealers and manufacturers, maintaining

1157competition, providing consumer protection

1161and fair trade and providing minorities with

1168opportunities for full participation as

1173motor vehicle dealers.

117615. Section 320.642, Florida Statutes (2008), provides, in

1184pertinent part:

1186(1) Any licensee who proposes to

1192establish an additional motor vehicle

1197dealership or permit the relocation of an

1204existing dealer to a location within a

1211community or territory where the same line-

1218make vehicle is presently represented by a

1225franchised motor vehicle dealer or dealers

1231shall give written notice of its intention

1238to the department. Such notice shall state:

1245(a) The specific location at which the

1252additional or relocated motor vehicle

1257dealership will be established.

1261(b) The date on or after which the

1269licensee intends to be engaged in business

1276with the additional or relocated motor

1282vehicle dealer at the proposed location.

1288(c) The identity of all motor vehicle

1295dealers who are franchised to sell the same

1303line-make vehicle with licensed locations in

1309the county or any contiguous county to the

1317county where the additional or relocated

1323motor vehicle dealer is proposed to be

1330located.

1331(d) The names and addresses of the

1338dealer-operator and principal investors in

1343the proposed additional or relocated motor

1349vehicle dealership.

1351Immediately upon receipt of such notice

1357the department shall cause a notice to be

1365published in the Florida Administrative

1370Weekly. The published notice shall state

1376that a petition or complaint by any dealer

1384with standing to protest pursuant to

1390subsection (3) must be filed not more than

139830 days from the date of publication of the

1407notice in the Florida Administrative Weekly.

1413The published notice shall describe and

1419identify the proposed dealership sought to

1425be licensed, and the department shall cause

1432a copy of the notice to be mailed to those

1442dealers identified in the licensee's notice

1448under paragraph (c).

1451(2)(a) An application for a motor vehicle

1458dealer license in any community or territory

1465shall be denied when:

14691. A timely protest is filed by a

1477presently existing franchised motor vehicle

1482dealer with standing to protest as defined

1489in subsection (3); and

14932. The licensee fails to show that the

1501existing franchised dealer or dealers who

1507register new motor vehicle retail sales or

1514retail leases of the same line-make in the

1522community or territory of the proposed

1528dealership are not providing adequate

1533representation of such line-make motor

1538vehicles in such community or territory.

1544The burden of proof in establishing

1550inadequate representation shall be on the

1556licensee.

1557* * *

1560(3) An existing franchised motor vehicle

1566dealer or dealers shall have standing to

1573protest a proposed additional or relocated

1579motor vehicle dealer where the existing

1585motor vehicle dealer or dealers have a

1592franchise agreement for the same line-make

1598vehicle to be sold or serviced by the

1606proposed additional or relocated motor

1611vehicle dealer and are physically located so

1618as to meet or satisfy any of the following

1627requirements or conditions:

1630* * *

1633(b) If the proposed additional or

1639relocated motor vehicle dealer is to be

1646located in a county with a population of

1654more than 300,000 according to the most

1662recent data of the United States Census

1669Bureau or the data of the Bureau of Economic

1678and Business Research of the University of

1685Florida:

16861. Any existing motor vehicle dealer or

1693dealers of the same line-make have a

1700licensed franchise location within a radius

1706of 12.5 miles of the location of the

1714proposed additional or relocated motor

1719vehicle Dealer. . . . (Emphasis added.)

172616. Respondent established as a matter of law that it has

1737standing to protest the proposed dealership's sale of the two

1747new line-makes.

174917. Petitioners waived at the formal hearing the notice of

1759intent to sell and, therefore, its challenge to the adequacy of

1770Respondent's sales and representation for line-makes of

1777motorcycles manufactured by Zhejiang Taizhou Wangye Power Co.

1785Ltd. (ZHEJ).

178718. Petitioners presented no credible evidence to support

1795a conclusion that the Respondent has not provided adequate

1804representation of Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG)

1812in the community or territory surrounding the proposed site. To

1822the contrary, the evidence established that Respondent has

1830provided adequate representation for the manufacture of the

1838line-make, ZHNG, that was also previously called the ZHEN line-

1848make.

1849RECOMMENDATION

1850Based on the foregoing Findings of Fact and Conclusions of

1860Law, it is RECOMMENDED that the Florida Department of Highway

1870Safety and Motor Vehicles enter a Final Order denying Treasure

1880Coast's applications to become the licensee to sell motorcycles

1889line-makes manufactured by Zhejiang Taizhou Wangye Power Co.

1897Ltd. (ZHEJ); and by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG)

1907at the proposed site.

1911DONE AND ENTERED this 2nd day of November, 2009, in

1921Tallahassee, Leon County, Florida.

1925S

1926ELEANOR M. HUNTER

1929Administrative Law Judge

1932Division of Administrative Hearings

1936The DeSoto Building

19391230 Apalachee Parkway

1942Tallahassee, Florida 32399-3060

1945(850) 488-9675

1947Fax Filing (850) 921-6847

1951www.doah.state.fl.us

1952Filed with the Clerk of the

1958Division of Administrative Hearings

1962this 2nd day of November, 2009.

1968COPIES FURNISHED :

1971Electra Theodorides-Bustle, Executive Director

1975Department of Highway Safety and

1980Motor Vehicles

19824052 Bald Cypress Way, BIN A02

1988Tallahassee, Florida 32399-1701

1991Robin Lotane, General Counsel

1995Department of Highway Safety and

2000Motor Vehicles

2002Neil Kirkman Building

20052009 Apalachee Parkway

2008Tallahassee, Florida 32399-0500

2011Guy Young

2013J & F South Florida Investments, Inc.

2020d/b/a Treasure Coast Scooters and Things

20267320 South US 1

2030Port St. Lucie, Florida 34952

2035Mark Mourning

2037WenMark Inc., d/b/a All The Wheel Toys

20441540 Northwest Federal Highway

2048Stuart, Florida 34994

2051Jennifer Clark, Esquire

2054Department of Highway Safety

2058and Motor Vehicles

2061Neil Kirkman Building, Room A-308

20662900 Apalachee Parkway

2069Tallahassee, Florida 32399-0635

2072Leo Su

2074Galaxy Powersports, LLC, d/b/a

2078JCL International, LLC

20812667 Northhaven Road

2084Dallas, Texas 75229

2087NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2093All parties have the right to submit written exceptions within

210315 days from the date of this Recommended Order. Any exceptions

2114to this Recommended Order should be filed with the agency that

2125will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/03/2009
Proceedings: Agency Final Order filed.
PDF:
Date: 12/02/2009
Proceedings: Agency Final Order
PDF:
Date: 12/02/2009
Proceedings: Agency Final Order
PDF:
Date: 11/02/2009
Proceedings: Recommended Order
PDF:
Date: 11/02/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/02/2009
Proceedings: Recommended Order (hearing held October 6, 2008). CASE CLOSED.
PDF:
Date: 10/26/2009
Proceedings: Letter To Whom It May Concern from Penny Lawrence regarding JCL International selling a manufactured scooter filed.
Date: 10/09/2009
Proceedings: Respondent's Exhibits (exhibits not available for viewing) filed.
Date: 10/06/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/04/2009
Proceedings: Order Re-scheduling Hearing by Video Teleconference (hearing set for October 6, 2009; 3:00 p.m.; Fort Pierce and Tallahassee, FL).
PDF:
Date: 09/03/2009
Proceedings: (Petitioner's) Letter response to the Initial Order filed.
PDF:
Date: 08/27/2009
Proceedings: Letter to Judge Hunter from W. Mourning and M. Mourning regarding available dates for hearing filed.
PDF:
Date: 08/25/2009
Proceedings: Letter to DOAH from G. Young regarding scheduling of hearing date filed.
PDF:
Date: 08/25/2009
Proceedings: Letter to DOAH from M. Mourning regarding request to reschedule hearing filed.
PDF:
Date: 08/25/2009
Proceedings: Letter to DOAH from M. Mourning regarding rescinded Request for Postponement filed.
PDF:
Date: 08/25/2009
Proceedings: Order Granting Continuance and Placing Case in Abeyance (parties to advise status by September 25, 2009).
PDF:
Date: 08/24/2009
Proceedings: Letter to DOAH from G. Young requesting postponement of hearing filed.
PDF:
Date: 08/12/2009
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for August 27, 2009; 9:00 a.m.; Fort Pierce and Tallahassee, FL; amended as to video and location).
PDF:
Date: 06/26/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/26/2009
Proceedings: Notice of Hearing (hearing set for August 27, 2009; 9:00 a.m.; Port St. Lucie, FL).
PDF:
Date: 06/25/2009
Proceedings: Letter to DOAH from Guy Young regarding hearing date filed.
PDF:
Date: 06/12/2009
Proceedings: Notice of Ex-Parte Communications, Requirement for Parties to Agree on Referral to Previous Administrative Law Judge, and Notice of Disposition of Record in DOAH Case No. 08-5365.
PDF:
Date: 06/12/2009
Proceedings: Order of Consolidation (DOAH Case Nos. 09-3010 and 09-3024).
PDF:
Date: 06/10/2009
Proceedings: Letter to DOAH from G. Young regarding case issues and request to have hearing held in St. Lucie County filed.
PDF:
Date: 06/08/2009
Proceedings: Respondent's Response to Initial Order filed.
PDF:
Date: 06/04/2009
Proceedings: Initial Order.
PDF:
Date: 06/04/2009
Proceedings: Notice of Publication for a New Point Franchise Motor Vehicle Dealer filed.
PDF:
Date: 06/04/2009
Proceedings: Protest of Intent to Establish a New Dealership filed.
PDF:
Date: 06/04/2009
Proceedings: Agency referral

Case Information

Judge:
ELEANOR M. HUNTER
Date Filed:
06/04/2009
Date Assignment:
06/12/2009
Last Docket Entry:
12/03/2009
Location:
Fort Pierce, Florida
District:
Southern
Agency:
Other
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (4):