09-003223 Zongshen, Inc., And Tropical Scooters, Llc vs. Scooter Escapes, Llc, D/B/A Scooter Escapes Status: Closed Recommended Order on Thursday, November 19, 2009.

Summary: There was no evidence that the existing dearlship does not provide adequate representation of the motor scooter line-make.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZONGSHEN, INC., AND TROPICAL )

SCOOTERS, LLC, )

)

Petitioners, )

)

vs. ) Case No. 09-3223

)

SCOOTER ESCAPES, LLC, d/b/a SCOOTER ESCAPES, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On October 20, 2009, an administrative hearing in this case

was held by video teleconference in Tallahassee and

St. Petersburg, Florida, before William F. Quattlebaum,

Administrative Law Judge (ALJ), Division of Administrative

Hearings.

APPEARANCES

For Petitioner Zongshen, Inc.:

(No appearance)

For Petitioner Tropical Scooters, LLC:

Michele R. Stanley, Owner

11610 Seminole Boulevard

Largo, Florida 33778

For Respondent: Chris Densmore, Owner

1450 First Avenue, North St. Petersburg, Florida 33705

STATEMENT OF THE ISSUE

The issue in the case is whether an application for a new

point franchise motor vehicle dealership filed by Zongshen,

Inc., and Tropical Scooters, LLC, should be approved.

PRELIMINARY STATEMENT

By notice published in the Florida Administrative Weekly

(Volume 35, Number 22; June 5, 2009), the Department of Highway

Safety and Motor Vehicles (Department) gave notice that

Zongshen, Inc. (Zongshen), was seeking to establish a new point

motor vehicle dealership in Largo, Pinellas County, Florida,

with Tropical Scooters, LLC (Tropical), for the line-make

"Zongshen Industrial Group (ZONG)." A challenge to the

establishment of the dealership was filed with the Department by

an existing motor vehicle dealership, Scooter Escapes, LLC

(Respondent).

By letter dated June 16, 2009, the Department forwarded the

challenge to the Division of Administrative Hearings. The

previously-assigned ALJ issued an Initial Order on June 17,

2009, directing the parties to identify dates upon which the

parties were available for hearing. No responses to the Initial

Order were filed, but Tropical filed an Answer and moved to

dismiss the protest, asserting that the proposed dealership was

outside the area served by the Respondent and that the

Respondent therefore lacked standing to maintain the protest.

The hearing was thereafter scheduled in accordance with

Subsection 320.699(2), Florida Statutes (2009). The hearing was

transferred to the undersigned ALJ on October 23, 2009.

Prior to the hearing, both parties filed documents related

to the disputed issue of distance between the two locations. At

the commencement of the hearing, the parties presented the

documents and argument related to the issue. The documents were

admitted into the record as composite exhibits of the respective

parties and are referenced herein. Neither party presented

witnesses at the hearing.

No transcript of the hearing was filed. No Proposed

Recommended Orders were filed.

FINDINGS OF FACT

opical is seeking to establish a new point franchise

motor vehicle dealership at 11610 Seminole Boulevard, Largo, in

Pinellas County, Florida, for line-make ZONG.

2. The Respondent is an existing franchise dealer for

ZONG-manufactured vehicles located at 1450 First Avenue, North,

St. Petersburg, in Pinellas County, Florida.

3. The Respondent is located within 12.5 miles of the

proposed new point motor vehicle dealership location.

4. The Respondent timely filed a protest of the proposed

dealership.

5. The Petitioner presented no evidence that the

Respondent is not providing adequate representation within the

territory of the motor vehicles at issue in this proceeding.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

7. The Respondent has standing to challenge the

application for the new dealership pursuant to Subsection

320.642(3)(b)1., Florida Statutes (2008), which provides as

follows:

(3) 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:

* * *

(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. . . .

opical asserted that the measurement between the

Respondent's location and the proposed dealership is greater

than 12.5 miles and suggested that the Respondent's protest

should be dismissed. In support of the argument, Tropical

submitted several maps at the commencement of the hearing

obtained from various internet mapping sources, showing an

assortment of driving routes between the two locations, all of

which exceeded 12.5 miles.

9. Section 320.642, Florida Statutes (2008), does not

provide any direction as to the manner in which the distance

between an existing and a proposed dealership should be

measured.

10. The Florida Supreme Court has held that, absent

statutory direction to the contrary, such distances are measured

as a straight line between the closest points of the relevant

parcels. See State ex rel. Fronton Exhibition Co. v. Stein , 144

Fla. 387 (Fla. 1940), involving violation of a statute

prohibiting location of a jai alai fronton within 1,000 feet of

a public school; and State ex rel. Tourist Attractions, Inc. v.

Lechner , 191 So. 2d 555, 557 (Fla. 1966), involving measurement

of distance between harness racing tracks.

11. The evidence established that Respondent's location is

less than 12.5 miles from the proposed new dealership as

measured by a straight line between the two locations.

12. Subsection 320.642(2)(a), Florida Statutes (2008),

provides as follows:

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. (Emphasis supplied)

13. The licensees in this case are Petitioners Zongshen

and Tropical. See §§ 320.60(8) and 320.61, Fla. Stat. (2008).

14. As the licensees, the Petitioners have the burden of

establishing compliance with applicable statutory requirements

by a preponderance of the evidence presented at the hearing.

See § 320.642(2)(a)2., Fla. Stat. (2008). The Petitioners have

failed to establish that the Respondent is not providing

adequate representation of the ZONG line-make.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department enter a final order,

denying the Petitioners' application for establishment of the

new point franchise motor vehicle dealer franchise.

DONE AND ENTERED this 19th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 19th day of November, 2009.

COPIES FURNISHED :

Patricia Fornes

Zongshen, Inc.

3511 Northwest 113th Court

Miami, Florida 33178

Jennifer Clark

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A-308

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

Chris Densmore

Scooter Escapes, LLC, d/b/a

Scooter Escapes

1450 First Avenue, North

St. Petersburg, Florida 33705

Michele R. Stanley

Tropical Scooters, LLC

11610 Seminole Boulevard

Largo, Florida 33778

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

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.