09-006741 El Sol Trading, Inc., And Fishers Auction Services, Inc., D/B/A Fisher Auto Equipment Sales vs. Cycles And More, Inc. Status: Closed Recommended Order on Wednesday, July 7, 2010.

Summary: No evidence was presented that protestor has standing. Recommend approval of the new dealership application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EL SOL TRADING, INC. AND )

FISHERS AUCTION SERVICES, INC., )

d/b/a FISHER AUTO EQUIPMENT )

SALES, )

)

Petitioners, ) Case No. 09-6741

)

vs. )

)

CYCLES AND MORE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On June 18, 2010, an administrative hearing in this case

was conducted in New Smyrna Beach, Florida, before

James H. Peterson, III, Administrative Law Judge, Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioners: (No appearance)

For Respondent: (No appearance)

STATEMENT OF THE ISSUE

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

point franchise motor vehicle dealership filed by El Sol

Trading, Inc., and Fishers Auction Services, Inc., d/b/a Fisher

Auto Equipment Sales (Petitioners), should be approved.

PRELIMINARY STATEMENT

By Notice published in the Florida Administrative Weekly

(Volume 35, Number 45; November 13, 2009), the Department of

Highway Safety and Motor Vehicles (Department) gave notice that

El Sol Trading, Inc., was seeking to establish a new point

franchise motor vehicle dealership for the sale of motorcycles

manufactured by Shanghai Shenke Motorcycle Co., Ltd. (SHEN) with

Fishers Auction Services, Inc., d/b/a Fisher Auto Equipment

Sales, at 402 North Ridgewood Avenue, Edgewater (Volusia

County), Florida 32132.

Cycles and More, Inc. (Respondent), filed a challenge to

the establishment of the dealership. By letter dated December

11, 2009, the Department forwarded the challenge to DOAH. On

December 15, 2009, DOAH issued an Initial Order, directing the

parties to identify the anticipated length of the hearing, dates

upon which the parties were available for hearing, and a

suggested hearing location. No responses to the Initial Order

were filed, and the hearing was to begin at 9:00 a.m., on

June 18, 2010, in New Smyrna Beach as set forth in the Notice of

Hearing filed January 4, 2010.

Neither party appeared at the time scheduled for

commencement of the hearing. There were no witnesses or

exhibits admitted into evidence. No transcript of the hearing

was filed. No proposed recommended orders were filed.

FINDINGS OF FACT

1. There was no evidence presented at the hearing to

establish that Respondent has a franchise agreement to sell or

service SHEN motor vehicles, the line-make to be sold by Cycles

and More, Inc.

2. There was no evidence presented at the hearing that

Respondent's dealership is physically located so as to meet the

statutory requirements for standing to protest the establishment

of the new point franchise motor vehicle dealership.

CONCLUSIONS OF LAW

3. 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).

4. Section 320.642, Florida Statutes (2009), provides in

relevant part as follows:

320.642 Dealer licenses in areas previously

served; procedure.--

(1) Any licensee who proposes to establish

an additional motor vehicle dealership or

permit the relocation of an existing dealer

to a location within a community or

territory where the same line-make vehicle

is presently represented by a franchised

motor vehicle dealer or dealers shall give

written notice of its intention to the

department. . . .

* * *

(2)(a) 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.

* * *

(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; or

2. 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, such 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 12.5 miles of the location of the

proposed additional or relocated motor

vehicle dealer; provided such 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.

5. The licensees in this case are El Sol Trading, Inc.,

and Fishers Auction Services, Inc., d/b/a Fisher Auto Equipment

Sales. See §§ 320.60(8) and 320.61, Fla. Stat. (2009).

6. Respondent is the alleged existing franchised motor

vehicle dealer. Respondent failed to present any evidence at

the hearing to establish that it meets the statutory

requirements to establish standing, by location or sales volume,

to protest the establishment of the new point franchise motor

vehicle dealership at issue in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

dismissing the protest filed in this case by Cycles and More,

Inc., and granting Petitioners' request to establish a new point

franchise motor vehicle dealership for the sale of SHEN

motorcycles.

DONE AND ENTERED this 7th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 7th day of July, 2010.

COPIES FURNISHED :

Gloria Ma

El Sol Trading, Inc., d/b/a

Motobravo, Inc.

19877 Quiroz Court

City of Industry, California 91789

Raymond L. Fisher

Fishers Auction Services, Inc., d/b/a

Fisher Auto Equipment Sales

119 Dixwood Avenue

Edgewood, Florida 32132

Jeanne Ciriello

Cycles & More, Inc.

5797 South Ridgewood Avenue

Port Orange, Florida 32127

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.