11-003649 Ride Green Florida, Llc vs. Puma Cycles Corporation And Wild Hogs Scooters And Motorsports, Llc Status: Closed Recommended Order on Wednesday, February 22, 2012.

Summary: Evidence fails to establish that existing dealer is not providing adequate representation of line-make.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RIDE GREEN FLORIDA, LLC , )

)

Petitioner , )

)

vs. ) Case Nos. 11 - 3649

) 11 - 4337

PUMA CYCLES CORPORATION AND )

WILD HOGS SCOOTERS AND )

MOTORSPORTS, LLC , )

)

Respondents . )

)

RECOMMENDED ORDER

On January 24, 2012, an administrative hearing in th e s e

case s was conducted in Tallahassee, Florida, before William F.

Quattlebaum, Administrative Law Judge (ALJ) , Division of

Administrative Hearings (DOAH ) .

APPEARANCES

For Petitioner: R. Craig Spickard, Esquire

John W. Forehand, Esquire

Kurkin Forehand Brandes, LLP

800 North Calhoun Street, Suite 1B

Tallahassee, F lorida 32303

For Respondent s : (No appearance)

STATEMENT OF THE ISSUE

The issue in the se case s is whether two applications for new

point franchise motor vehicle dealerships filed by Puma Cycles

Corporation and Wild Hogs Scooters and Motorsports, LLC

(Re spondents) , should be approved.

PRELIMINARY STATEMENT

By Notice published in the Florida Administrative Weekly

(Volume 37, Number 24 ; June 17, 2011), the Department of Highway

Safety and Motor Vehicles (Department) gave notice that Puma

Cycles Corporation (Puma) intended to establish a new point

franchise motor vehicle dealership at Wild Hogs Scooters and

Motorsports , LLC (Wild Hogs) , located at 3311 West Lake Mary

Boulevard, Units 1 - 2, Lake Mary, Seminole County, Florida 32746 ,

for the sale of motorcycles manufactured by Foshan City Fosti

Motorcycle Manufacturing Co. Ltd. (line - make FSTI). Ride Green

Florida , LLC (Petitioner) , filed a challenge to the establishment

of the Lake Mary dealership and requested an administrative

hearing. By letter dated July 2 1, 2011, the Department forwarded

the request to DOAH, which designated the hearing request as Case

No. 11 - 3649. An Initial Order was entered to which the

Petitioner filed a response. Based on the response, on August 2,

2011, a Notice of Hearing was issu ed wherein the hearing was

scheduled for January 24 through 26, 2012.

By Notice published in the Florida Administrative Weekly

(Volume 37, Number 30 ; July 29, 2011), the Department gave notice

that Puma intended to establish a new point franchise motor

veh icle dealership at the Wild Hogs location at 1805 West

Fairbanks Avenue, Winter Park, Orange County, Florida 32789 , for

the sale of motorcycles manufactured by Foshan City Fosti

Motorcycle Manufacturing Co. Ltd. (line - make FSTI).

The Petitioner filed a cha llenge to the establishment of the

Winter Park dealership and requested an administrative hearing.

By letter dated August 22, 2011, the Department forwarded the

request to DOAH, which designated the hearing request as Case

No. 11 - 4337. An Initial Order w as entered to which the

Petitioner filed a response. Based on the response, the two

cases were co nsolidated on August 31, 2011.

The consolidated cases were transferred to the undersigned

ALJ on January 18, 2012 .

The hearing commenced as scheduled on Janua ry 24, 2012, at

which time no representative appeare d on behalf of the

Respondents.

The Petitioner presented the testimony of one witness, the

owner of Ride Green Florida, LLC. There being no further

witnesses, and with no appearance on behalf of the Resp ondents,

the record was clo sed and the hearing concluded.

Immediately after the hearing had concluded, an individual

attending the hearing on behalf of Puma entered the hearing room

and advised that he had been waiting outside the hearing room

pursuant to the instr uctions of a security officer.

As set forth in the Notice of Hearing, all parties have the

right to be represented by counsel or other qualified

representative, in accordance with Florida Administrative Code

Rule 28 - 106.106. Following a discussio n with the individual

attending on behalf of Puma, the hearing was reconvened, at which

time the ALJ determined that the individual was not a Florida -

licensed attorney and could not meet the requirements to serve as

a qualified representative during the he aring , and the record was

closed.

No transcript of the hearing was filed. Neither party filed

a proposed recommended order.

FINDING OF FACTS

1. The Petitioner has a franchise agreement to sell line -

make FSTI motor vehicles, the line - make proposed to be s old at

the two Wild Hogs locations at issue in these cases.

2. The location of the Petitioner ' s dealership at 700 West

Fairbanks Avenue, Winter Park, Florida, is within 12.5 miles of

both Wild Hogs locations.

3. There was no evidence presented at the h earing to

establish that the Petitioner is not providing adequate

representation of line - make FSTI motor vehicles.

CONCLUSIONS OF LAW

4. D OAH has jurisdiction over the parties to and subject

matter of this proceeding. See §§ 120.569 and 120.57, Fla . Stat .

(2011). 1/

5. Section 320.642, Florida Statutes , 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 r elocation 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. The

notic e must state:

(a) The specific location at which the

additional or relocated motor vehicle

dealership will be established.

(b) The date on or after which the licensee

intends to be engaged in business with the

additional or relocated motor vehicle deal er

at the proposed location.

(c) The identity of all motor vehicle

dealers who are franchised to sell the same

line - make vehicle with licensed locations in

the county and any contiguous county to the

county where the additional or relocated

motor vehicle dealer is proposed to be

located.

(d) The names and addresses of the dealer -

operator and principal investors in the

proposed additional or relocated motor

vehicle dealership.

Immediately upon receipt of the notice the

department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice must state that

a petition or complaint by any dealer with

standing to protest pursuant to subsection

(3) must be filed within 30 days following

the date of publication of the notice in the

Florida Administrative Weekly. The published

notice must describe and identify the

proposed dealership sought to be licensed,

and the department shall cause a copy of the

notice to be mailed to those dealers

identified in the licensee ' s notice und er

paragraph (c). The licensee shall pay a fee

of $75 and a service charge of $2.50 for each

publication. Proceeds from the fee and

service charge shall be deposited into the

Highway Safety Operating Trust Fund.

(2)(a) An application for a motor vehicl e

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.

(b) In determining whether the existing

franchised motor vehicle dealer or dealers

are providing adequate representation in the

communit y or territory for the line - make, the

department may consider evidence which may

include, but is not limited to:

1. The impact of the establishment of the

proposed or relocated dealer on the

consumers, public interest, existing dealers,

and the licensee ; provided, however, that

financial impact may only be considered with

respect to the protesting dealer or dealers.

2. The size and permanency of investment

reasonably made and reasonable obligations

incurred by the existing dealer or dealers to

perform their obligations under the dealer

agreement.

3. The reasonably expected market

penetration of the line - make motor vehicle

for the community or territory involved,

after consideration of all factors which may

affect said penetration, including, but not

l imited to, demographic factors such as age,

income, education, size class preference,

product popularity, retail lease

transactions, or other factors affecting

sales to consumers of the community or

territory.

4. Any actions by the licensees in denying

i ts existing dealer or dealers of the same

line - make the opportunity for reasonable

growth, market expansion, or relocation,

including the availability of line - make

vehicles in keeping with the reasonable

expectations of the licensee in providing an

adequat e number of dealers in the community

or territory.

5. Any attempts by the licensee to coerce

the existing dealer or dealers into

consenting to additional or relocated

franchises of the same line - make in the

community or territory.

6. Distance, travel t ime, traffic patterns,

and accessibility between the existing dealer

or dealers of the same line - make and the

location of the proposed additional or

relocated dealer.

7. Whether benefits to consumers will likely

occur from the establishment or relocation of

the dealership which cannot be obtained by

other geographic or demographic changes or

expected changes in the community or

territory.

8. Whether the protesting dealer or dealers

are in substantial compliance with their

dealer agreement.

9. Whether there is adequate interbrand and

intrabrand competition with respect to said

line - make in the community or territory and

adequately convenient consumer care for the

motor vehicles of the line - make, including

the adequacy of sales and service facilities.

1 0. Whether the establishment or relocation

of the proposed dealership appears to be

warranted and justified based on economic and

marketing conditions pertinent to dealers

competing in the community or territory,

including anticipated future changes.

11. The volume of registrations and service

business transacted by the existing dealer or

dealers of the same line - make in the relevant

community or territory of the proposed

dealership.

(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 ve hicle dealer

and are physically located so as to meet or

satisfy any of the following requirements or

conditions :

(a) If the proposed additional or relocated

motor vehicle dealer is to be located in a

county with a population of less than 300,000

accord ing 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. The proposed additional or relocated

motor vehicle dealer is to be located in the

area designated or described as the area of

responsibility, or such similarly designated

area, including the entire area designated as

a multiple - point area, in the franchise

agreement or in any related document or

commitment with the existing motor vehicle

dealer or dea lers of the same line - make as

such agreement existed upon October 1, 1988;

2. The existing motor vehicle dealer or

dealers of the same line - make have a licensed

franchise location within a radius of 20

miles of the location of the proposed

additional or relocated motor vehicle dealer;

or

3. 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, the 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 20 miles of the location of the

proposed additional or relocated motor

vehicle dealer; p rovided the 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.

(b) If the proposed additional or relocated

motor vehicle dealer is to be located in a

co unty 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 Researc h

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 r elocated dealer is proposed to be

located.

(4) The department ' s decision to deny

issuance of a license under this section

shall remain in effect for a period of 12

months. The department shall not issue a

license for the proposed additional or

relocated motor vehicle dealer until a final

decision by the department is rendered

determining that the application for the

motor vehicle dealer ' s license should be

granted. ( e mphasis added ) .

6. The Respondents in th e s e case s are the licensees. See

§§ 320.60(8 ) and 320.61, Fla . Stat.

7. By location within 12.5 miles of the proposed Wild Hogs

locations, the Petitioner is an existing franchised motor vehicle

dealer with standing to protest the establishment of the new

point franchise motor vehicle dealerships at issu e in these

consolidated cases.

8. The Respondent s presented no evidence that the

Petitioner is not providing adequate sales representation within

the community or territory of the line - make FSTI motor vehicle s .

RECOMMENDATION

Based on the foregoing F inding of Fact s and Conclusions of

Law, it is RECOMMENDED that the Department of Highway Safety and

Motor Vehicles enter a f inal o rder denying the two applications

filed by the Respondents to establish new point franchise motor

vehicle dealerships at Wild Hogs Scooters and Motorsports , LLC ,

for the sale of line - make FSTI motorcycles.

DONE AND ENTERED this 22nd day of February , 2012 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Div ision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of Feb ruary , 2012 .

ENDNOTE

1/ All references to Florida Statutes are to the 2011 version,

unless otherwise indicated.

COPIES FURNISHED:

Jennifer Clark, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A - 430

2900 Apalachee Parkway, Mail Stop 61

Tallahassee, Florida 32399

Jason Rupp

Wild Hogs Scooters and Motorsports, LLC

3311 West Lake Mary Boulevard

Units 1 2

Lake Mary, Florida 32746

Josef Stutz

Puma Cycles Corporation

1550 South Sinclair Street

Anaheim, Cali fornia 92806

R. Craig Spickard, Esquire

Kurkin Forehand Brandes, LLP

800 North Calhoun Street, Suite 1B

Tallahassee, Florida 32303

cspickard@kfb - law.com

Sandra C. Lambert, Interim Director

Division of Motor Vehicles

Department of Highway Safety

and M otor Vehicles

Neil Kirkman Building, Room B - 439

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

Steve Hurm, 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 Fin al Order in this case.