10-007996 El Sol Trading, Inc. And Eco Green Machine, Llc vs. Seminole Scooters, Inc. Status: Closed Recommended Order on Thursday, November 18, 2010.

Summary: Licensee, who did not appear at hearing, failed to meet its burden of proving "inadequate representation" by existing dealers. Recommend denial of approval to establish new motorcycle dealership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EL SOL TRADING, INC. AND ECO )

GREEN MACHINE, LLC, )

)

Petitioners, )

)

vs. ) Case No. 10 - 7996

)

SEMINOLE SCOOTERS, INC. )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2010) before Stuart M. Lerner, a duly - designated administrative

law judge of the Division of Administrative Hearings (DOAH), on

November 9, 2010, by video te leconference at sites in St.

Petersburg and Tallahassee, Florida.

APPEARANCES

For Petitioner El Sol Trading, Inc:

No Appearance

For Petitioner Eco Green Machine, LLC:

Lindsey Park

Eco Green Machine, LLC

7000 Park Boulevard, Suite A

Pinellas Park, Florida 33781

For Respondent Seminole Scooters, Inc.:

David Dubin

Seminole Scooters, Inc.

6239 Park Boulevard

Pinellas Park, Florida 33781

STATEMENT OF THE ISSUE

Whether El Sol Trading, Inc. (El Sol) should be permitted ,

over Respondent's protest, to establish an additional dealership

for the sale of motorcycles manufactured by T aizhou Zhongneng

Motorcycle Co., Ltd. ( ZHNG Motorcycles) at 7000 Park Boulevard,

Pinellas Park , Florida .

PRELIMINARY STATEMENT

On A ugust 6 , 2010, a notice was published i n the Florida

Administrative Weekly that El Sol intended "to allow the

establishment of Eco Green Machine LLC, d/b/a Eco Green Machine ,

LLC, as a dealership for the sale of motorcycles manufactured by

Taizhou Zhongneng Motorcycle Co., Ltd. at 7000 Park Bou levard,

Pinellas Park, Florida . . . ." On A ugust 18 , 2010, Respondent

filed with the Department of Highway Safety and Motor Vehicles

(Department) a letter protesting the establishment of this

additional dealership. On August 20 , 2010, the matter was

ref erred to DOAH to "be heard by an Administrative Law Judge."

The final hearing was then scheduled for November 9, 2010 .

Petitioners and Respondent were provided with written notice of

the scheduled hearing in accordance with Section 120.569(2)(b),

Florida Statutes (2010) .

As noted above, the final hearing was held, as scheduled,

on November 9, 2010 . Petitioner Eco Green Machine LLC, d/b/a

Eco Green Machine and Respondent appeared at the hearing through

their respective representative s . Petitione r El Sol , on the

other hand, made no appearance.

One witness , David Dubin , Respondent's secretary and

business manager , testified at the hearing. In addition to

M r. Dubin's testimony, one exhibit (Respondent's Exhibit 1) was

offered and received into evid ence.

At the conclusion of the evidentiary portion of the

hearing, the undersigned announced on the record that, if the

parties desired to file proposed recommended orders, they were

required to do so no later than November 15, 2010. Later that

same day, the undersigned issued a written order advising that

the deadline for the filing of proposed recommended orders was

November 15, 2010 (as had been announced at the final hearing).

The proposed recommended order filing deadline passed

without any party hav ing filed a proposed recommended order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made :

1. Respondent is an existing franchised dealer of ZHNG

Motorcycles .

2. Its dealership is located at 6239 Park Boulevard ,

Pinellas Park, Florida .

3. The driving distance between Respondent's dealership

and the location of the new dealership El Sol proposes to

establish at 7000 Park Boulevard, Pinellas Park, Florida, is

ro ughly one mile.

CONCLUSIONS OF LAW

4. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes (2010) .

5. El Sol is seeking the Department's approval of a

proposal to establish a new dealership for the sale of ZHNG

Motorcycles at 7000 Park Boulevard, Pinellas Park, Florida . It

is seeking such approval pursuant to Section 320.642, Florida

Statutes (2010) .

6. Subsec tion (2)(a) of Section 320.642, Florida Statutes

(2010) , provides that such approval 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. T he 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 o f such line - make motor

vehicles in such community or territory.

The burden of proof in establishing

inadequate representation shall be on the

licensee.

7. Pursuant to Subsection (3)(b)1. of Section 320.642,

Florida Statutes (2010) , "if the proposed addi tional . . . motor

vehicle dealer is to be located in a county with a population of

more than 300,000," such as in the instant case, "[a]ny existing

motor vehicle dealer or dealers of the same line - make hav[ing] a

licensed franchise location within a radiu s of 12.5 miles of the

location of the proposed additional . . . motor vehicle dealer"

has standing to file a "protest," within the meaning of

Subsection (2)(a)1. of the statute.

8. To be timely , the protest " must be filed within 30 days

following the date of publication of the notice [of the proposed

new dealership] in the Florida Administrative Weekly."

§ 320.642(1), Fla. Stat. (2010).

9. With respect to the proposed new dealership in the

instant case ( notice of which was given in the August 6, 201 0 ,

publication o f Florida Administrative Weekly) , Respondent is an

"existing motor vehicle dealer" who has standing to file a

protest.

10. By timely filing its protest (on August 18, 2010 ) and

establishing (through its evidentiary presentation at hearing)

its standing to file this protest, Respondent effectively

imposed upon El Sol, by operation of the provisions of

Subsection (2)(a)2. of Section 320.642, Florida Statutes (2010) ,

the burden of proving there is "inadequate representation" in

the community o r territory of the proposed new dealership.

11 . H aving presented no evidence at the final hearing, El

Sol failed to meet this burden of proof.

12 . The approval that El Sol is seeking in the instant

case must therefore be denied.

RECOMMENDATION

Based upo n the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department of Highway Safety and Motor

Vehicles issue a Final Order denying El Sol approval to

establish a new ZHNG Motorcycle dealership at 7000 Park

Boulevard, Pinellas Park, Florida.

DONE AND ENTERED this 18 th day of November, 2010 , in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18 th day of Novemb er, 2010.

COPIES FURNISHED:

Julie L. Jones, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Steve Hume , General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Gloria Ma

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

19877 Quiroz Court

City of Industry, California 91789

Lindsey Park

Eco Green Machine, LLC

7000 Park Boulevard, Suite A

Pinellas Park, Florida 33781

David Dubin

Seminole Scooters, Inc.

6239 Park Boulevard

Pinellas Park, Florida 33781

NOTICE OF RIGHT TO SUBMIT EXCEPTION

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.