09-003499 Red Streak Scooters, Llc And Scooter City Usa, Llc vs. Jude A. Mitchell, D/B/A Jude's Cycle Service Status: Closed Recommended Order on Thursday, November 12, 2009.

Summary: Petitioners did not appear for hearing and, therefore, failed to meet burden of proof. Recommend the establishment of the proposed franchised dealerships be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RED STREAK SCOOTERS, LLC AND )

SCOOTER CITY USA, LLC, )

)

Petitioner, )

)

vs. ) Case Nos. 09-3489

) 09-3499

JUDE A. MITCHELL, d/b/a JUDE'S CYCLE SERVICE, )

)

)

Respondent. )

)

CLASSIC MOTORCYCLES AND )

SIDECARS, INC., AND SCOOTER )

CITY USA, LLC, )

)

Petitioners, )

)

vs. ) Case No. 09-4750

)

JUDE A. MITCHELL, d/b/a JUDE'S )

CYCLE SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases

on October 13, 2009, in Orlando, Florida, before Jeff B. Clark,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: No Appearances

For Respondent: Jude A. Mitchell, pro se

Dennis H. Ruckel, pro se

Jude's Cycle Service

Post Office Box 585574

Orlando, Florida 32858

STATEMENT OF THE ISSUE

The issue is whether Petitioners are entitled to motor

vehicle dealerships that are proposed to be located in Orange

County, Florida.

PRELIMINARY STATEMENT

On June 12, 2009, Petitioner, Red Streak Scooters, LLC, and

Scooter City USA, LLC, published a Notice of Publication for a

New Point Franchise Motor Vehicle Dealer in a County of More

Than 300,000 Population ("Notice of Publication"), Florida

Administrative Weekly , Volume 35, Number 23, for two different

locations in Orange County, Florida.

On June 21, 2009, Respondent, Jude A. Mitchell, d/b/a

Jude’s Cycle Service ("Respondent"), timely filed protests for

each Notice of Publication with the Department of Highway Safety

and Motor Vehicles ("Department").

By letter dated June 25, 2009, the Department referred the

matters to the Division of Administrative Hearings ("DOAH") for

assignment of an Administrative Law Judge to conduct a hearing

"for the sole purpose of determining the propriety of the

protest[s] regarding issues specifically within the purview of

Sections 320.642 and 320.699, Florida Statutes."

DOAH Case No. 09-3489 was assigned to the protest of the

proposed dealership at 4535 34th Street, Orlando, Florida; and

DOAH Case No. 09-3499 was assigned to the protest of the

proposed dealership at 2650 West Fairbanks Avenue, Winter Park,

Florida.

On June 25, 2009, Initial Orders were sent to all parties

on both cases requesting mutually-convenient dates for a final

hearing.

On July 7, 2009, the two related case were consolidated

pursuant to Florida Administrative Code 28-106.108, and on

July 22, 2009, a Notice of Hearing was issued scheduling the

cases to be heard on October 13, 2009.

Thereafter, on August 7, 2009, Petitioner, Classic

Motorcycles and Sidecars, Inc., and Scooter City USA, LLC,

published a Notice of Publication, Florida Administrative

Weekly , Volume 35, Number 31.

Respondent timely filed a protest with the Department on

August 21, 2009. By letter dated August 28, 2009, the

Department referred this matter to DOAH for an administrative

hearing. This case was assigned DOAH Case No. 09-4750, and on

September 1, 2009, an Initial Order was sent to all parties

requesting mutually-convenient dates for a final hearing.

On September 15, 2009, Case Nos. 09-3489, 09-3499, and

09-4750 were consolidated, and on October 6, 2009, an Amended

Notice of Hearing was issued scheduling all three cases to be

heard on October 13, 2009.

Petitioners did not respond to the Order of Pre-hearing

Instructions mailed on July 22, 2009. The hearing was convened

as scheduled on October 13, 2009.

Jude A. Mitchell, representing Jude's Cycle Service,

testified and presented the testimony of Dennis H. Ruckel. No

exhibits were offered. No appearance was made on behalf of

Petitioners.

The hearing was reported, but not transcribed.

All statutory references are to Florida Statutes (2009),

unless otherwise noted.

FINDINGS OF FACT

Based on the Notices of Publication, Respondent's protest

letters which were forwarded to DOAH, and the testimony

presented at the final hearing, the following Findings of Fact

are made:

1. Respondent is an existing franchised dealer for

motorcycles manufactured by Benzhou Vehicle Industry Group

Company, Ltd.

2. Petitioners have proposed the establishment of new

dealerships to sell the same line-make of motorcycles as those

sold by Respondent.

3. Respondent's dealership is located at 3838 John Young

Parkway, Orlando, Orange County, Florida.

4. Petitioners' dealerships are proposed to be located in

Orange County, Florida, at: 4535 34th Street, Orlando, Florida

(Case No. 09-3489); and 2650 West Fairbanks Avenue, Winter Park,

Florida (Case Nos. 09-3499 and 09-4750).

5. The proposed dealerships are within a 12.5-mile radius

of Respondent's dealership.

6. Respondent has standing to protest the establishment of

the proposed dealerships.

7. No evidence was presented showing that Respondent was

"not providing adequate representation" of the same line-make

vehicles in the community or territory.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

9. The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§§ 320.60 through 320.70, Fla. Stat.

10. 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 Highway Safety and Motor Vehicles of its intent to

establish a new franchise. The statute also provides that any

affected dealership may protest the establishment of a new

franchise in its territory.

11. Subsection 320.642(2), Florida Statutes, establishes

the standards of review to determine if establishment of a new,

competing motor vehicle franchise should be granted. Subsection

320.642(2)(a), Florida Statutes, provides in relevant part:

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.

12. Pursuant to Subsection 320.642(3)(b)1., Florida

Statutes, "if the proposed additional . . . motor vehicle dealer

is to be located in a county with a population of more than

300,000," as in the instant cases, then any existing motor

vehicle dealer of the same line-make whose licensed franchise

location is within a radius of 12.5 miles of the proposed

additional dealer has standing to file a protest within the

meaning of Subsection 320.642(2)(a)1., Florida Statutes.

13. Respondent is an existing motor vehicle dealer who has

standing to file a protest of the proposed new dealerships in

these cases.

14. The burden is, therefore, on Petitioners to prove that

there is "inadequate representation" in the community or

territory of the proposed new dealerships according to the

criteria set forth in Subsection 320.642(2)(b), Florida

Statutes.

15. Petitioners made no appearance and presented no

evidence at the final hearing. Petitioners failed to meet their

burden of proof.

16. The approval sought by Petitioners must, therefore, be

denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Highway Safety and Motor

Vehicles enter a final order denying the establishment of

Petitioners' proposed franchise dealerships for Case Nos. 09-3489,

09-3499, and 09-4750.

DONE AND ENTERED this 12th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 November, 2009.

COPIES FURNISHED :

Electra Theodorides-Bustle, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

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

Jude A. Mitchell

Jude's Cycle Service

Post Office Box 585574

Orlando, Florida 32858

Beverly Fox

Red Streak Scooters, LLC

427 Doughty Boulevard

Inwood, New York 11096

Randy Lazarus

Scooter City USA, LLC

4535 34th Street

Orlando, Florida 32811

Bobbette Lynott

Classic Motorcycles and Sidecars, Inc.

Post Office Box 969

Preston, Washington 98050

Lou Ronka

Scooter City USA, LLC

2650 West Fairbanks Avenue

Winter Park, Florida 32789

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.