11-004921 Power And Play Warehouse, Inc. vs. Gorilla Motor Works, Llc And Jab Motorsports, Corp., D/B/A Motor Scooters N More Status: Closed Recommended Order on Wednesday, December 7, 2011.

Summary: Proposed new motorcycle dealership should be denied in absence of proof that existing dealer was not adequately representing manufacturer.

Case No. 11-4921

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POWER AND PLAY WAREHOUSE, INC. RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

GORILLA MOTOR WORKDS, LLC AND )

JAB MOTORSPORTS, D/B/A MOTOR )

SCOOTERS N MORE, )

)

Respondents. )

)

)

Pursuant to notice a hearing was conducted on November 14,

2011, in Fort Lauderdale, Florida, before Claude B. Arrington, a

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Paul J. Lane, Esquire

Paul J. Lane, Attorney at Law

7880 North University Drive, Suite 200

Tamarac, Florida 33321

For Respondents: Auerilo Silva

Jab Motorsports Corp.

188 North Federal Highway

Deerfield Beach, Florida 33441

STATEMENT OF THE ISSUE

Whether Gorilla Motor Works, LLC (Gorilla) should be

permitted over Petitioner's protest to establish an additional

dealership for the sale of motorcycles manufactured by Taizhou

Zhongneng Motorcycle Co. Ltd. (ZHNG) at 188 North Federal

Highway, Deerfield Beach, Florida 33441 (the proposed location).

PRELIMINARY STATEMENT

On August 26, 2011, a notice was published in the Florida

Administrative Weekly that unless a timely protest was filed,

Gorilla "intends to allow establishment of Jab Motorsports

Corp., d/b/a Motor Scooters N More as a dealership for the sale

of motorcycles manufactured by [ZHNG] at [the proposed

location]." Thereafter, Petitioner timely protested the

establishment of this additional dealership pursuant to the

1

On September 21, 2011, the matter was referred to DOAH, and this

proceeding followed.

At the formal hearing, Petitioner presented the testimony

of Thomas McMahon (Petitioner's president and owner) and offered

two exhibits, both of which were admitted into evidence without

objection. Auerilo Silva, the sales manager for Jab Motorsports

Corporation, testified on behalf of Respondents. Respondents

offered no exhibits and no other witnesses. Mr. Silva offered

no evidence as to whether Petitioner was adequately representing

ZHNG.

No transcript of the proceeding was filed. The parties

were granted ten days from the hearing date within which to file

proposed recommended orders. Petitioner filed a Proposed

Recommended Order (PRO), but Respondents did not. Petitioner's

PRO has been duly considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an existing franchised dealer of ZHNG

Motorcycles.

2. Petitioner's dealership is located at 550 North Flagler

Avenue, Pompano Beach, Florida.

3. Petitioner's dealership is approximately 7.2 miles from

the proposed location.

4. Respondents offered no evidence that Petitioner has

failed to adequately represent ZHNG.

CONCLUSIONS OF LAW

5. DOAH has jurisdiction over the parties to and the

Fla. Stat.

6. Section 320.605 provides:

It is the intent of the Legislature to

protect the public health, safety, and

welfare of the citizens of the state by

regulating the licensing of motor vehicle

dealers and manufacturers, maintaining

competition, providing consumer protection

and fair trade and providing minorities with

opportunities for full participation as

motor vehicle dealers.

7. Section 320.642 provides, in pertinent part:

(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. Such notice shall 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 dealer 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 or 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 such notice the

department shall cause a notice to be

published in the Florida Administrative

Weekly. The published notice shall state

that a petition or complaint by any dealer

with standing to protest pursuant to

subsection (3) must be filed not more than

30 days from the date of publication of the

notice in the Florida Administrative Weekly.

The published notice shall 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

under paragraph (c).

(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 where 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. . . .

8. Petitioner established as a matter of law that it has

standing to protest the proposed location. Petitioner's protest

was timely.

9. Respondents presented no evidence that Respondent has

failed to provide adequate representation of ZHNG.

10. Mr. Silva testified that the ZHNG motorcycles

Respondents would sell at the proposed location may not be

identical to those sold by Petitioner because Respondents would

obtain the ZHNG motorcycles they intend to sell at the proposed

location from a different distributor used by Petitioner.

Respondents argued that the different distributors may or may

not modify the motorcycles they obtain from ZHNG before

delivering the motorcycles to the respective retail sellers.

Mr. Silva acknowledged that Petitioner and Respondents would

nevertheless be selling motorcycles manufactured by ZHNG, which

is all the above-quoted statute requires to protect Petitioner

from the dealership Respondents want to open at the proposed

location.

11. Respondents failed to meet their burden of proof.

Consequently, the approval Respondents are seeking to establish

the proposed location should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Highway

Safety and Motor Vehicles enter a Final Order denying the

request to establish a new ZHNG dealership at the proposed

location.

DONE AND ENTERED this 7th day of December, 2011, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 December, 2011.

ENDNOTE

1/ All statutory references are to Florida Statutes (2011).

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 Hurm, General Counsel

Department Of Highway Safety and

Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

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

Diana Hammer

Gorilla Motor Works, LLC

12485 44th Street North, Suite A

Clearwater, Florida 33762

Auerilo Silva, Sales Manager

Jab Motorsports Corp.

188 North Federal Highway

Deerfield Beach, Florida 33441

Roberto Nasimento

Jab Motorsports Corp.

188 North Federal Highway

Deerfield Beach, Florida 33441

Paul J. Lane, Esquire

Paul J. Lane, Attorney at Law

7880 North University Drive, Suite 200

Tamarac, Florida 33321

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.