13-004966 Pinellas Powersports, Llc vs. Tropical Scooters, Llc Status: Closed Recommended Order on Friday, July 18, 2014.

Summary: Petitioner failed to establish standing to protest new dealership.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS POWERSPORTS, LLC,

Petitioner,

vs. Case No. 13 - 4966

TROPICAL SCOOTERS, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

An administrative hearing in t his case was scheduled for

July 1 5 , 2014, in Tallahassee, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: No Appearance

STATEMENT OF THE IS SUE

The issue in the case is whether Pacific Rim International

West, Inc. (Pacific Rim) , may establish a new franchise motor

vehicle dealership at Tropical Scooters, LLC (Tropical) , for the

sale and service of motorcycles manufactured by Huzhou Daixi

Zhenh ua Technology Trade Co., Ltd. (DAIX).

PRELIMINARY STATEMENT

By letter to Pinellas Powersports, LLC (Powersports) , dated

November 15, 2013, the Department of Highway Safety and Motor

Vehicles (Department) gave notice that Pacific Rim was seeking to

establis h a new franchise motor vehicle dealership in Largo,

Florida, for the sale of motorcycles manufactured by DAIX.

Powersports filed a challenge to the establishment of the

new dealership. By letter dated December 23, 2013, the

Department forwarded the cha llenge to the Division of

Administrative Hearings (DOAH). On December 26, 2013, 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 suggested he aring locations. The

Initial Order stated that the failure to respond would result in

the hearing being scheduled in Tallahassee, Florida. No

responses to the Initial Order were filed, and the hearing was

scheduled accordingly.

Prior to the hearing, a pre - hearing conference was held on

July 9, 2014, to determine the status of the dispute. Although

it appeared at that time that Pacific Rim believed the dispute

had been resolved, Powersports and Tropical disagreed. The

Administrative Law Judge directed the parties to advise DOAH if

the dispute was resolved so that the hearing could be cancelled,

but that otherwise the hearing would proceed as scheduled. There

was no further communication from the parties prior to the

hearing.

No party appeared at the time scheduled for commencement of

the hearing. There were no witnesses or exhibits admitted into

evidence. Subsequent to the scheduled hearing time, Powersports

filed a letter stating that the dispute was resolved and it was

withdrawing the protest.

F INDING S OF FACT

1. There was no evidence presented at the hearing to

establish that Powersports has a franchise agreement to sell or

service DAIX motor vehicles. There was no evidence presented at

the hearing that the Powersports dealership is physically located

so as to meet the statutory requirements for standing to protest

the establishment of the new franchise motor vehicle dealership.

CONCLUSIONS OF LAW

2. The Division of Administrative Hearings has

jurisdiction over the parties to and subject m atter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat . (2013).

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

relevant part as follows:

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

w ith 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 th e 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 franchis ed 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 i n 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

deal ers 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 establi sh

that during any 12 - month period of the

36 - month period preceding the filing of the

licensee Ó 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

h ousehold 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

additio nal or relocated dealer is proposed

to be located.

4. The licensee in this case is Pacific Rim. See

§§ 320.60(8) and 320.61, Fla . Stat . (20 09 ).

5. Powersports is the alleged existing franchised motor

vehicle dealer. Powersports 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 franchise motor vehicle dealership

at issue in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law and upon the post - hearing notice filed by Powersports that

the protest was withdrawn, it is RECOMMENDED that the Department

enter a f inal o rder dismissing the protest filed in this case.

DONE AND ENTERED t his 1 8 th day of July , 2014 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 1 8 th day of July , 2014 .

COPIES FURNISHED:

Boyd Walden, Director

Division of Motor Vehicles

Department of Highway S afety

and Motor Vehicles

Neil Kirkman Building, Room B435

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

Steve Hurm, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room B432

2900 Apalachee Parkwa y

Tallahassee, Florida 32399 - 0500

Julie Baker, Chief

Bureau of Issuance Oversight

Division of Motor ist Services

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A338

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

J ennifer Clark, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A430

2900 Apalachee Parkway, MS 61

Tallahassee, Florida 32399 - 0635

Mark W. Stanley

Tropical Scooters, LLC

11610 Seminole Boulevard

Largo, Florida 33778 - 3206

Wendy Yu

Pacific Rim International West, Inc.

2181 East Francis Street

Ontario, California 91761 - 7723

Rob Pelzel, General Manager

Pinellas Powersports, LLC

Suite A

7000 Park Boulevard

Pinellas Park, Florida 33781 - 3040

NOTICE OF RIGHT TO S UBMIT 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.