14-004197 Navitas Financial Group, Inc., D/B/A Pompano Pats Deland vs. Peace Industry Group (Usa), Inc., And Wild Hogs Scooters And Motorsports, Llc Status: Closed Recommended Order on Monday, January 12, 2015.

Summary: Petitioner failed to establish standing to protest intended action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NAVITAS FINANCIAL GROUP, INC.,

d/b/a POMPANO PATS DELAND,

Petitioner,

vs. Case No. 14 - 4197

PEACE INDUSTRY GROUP (USA),

INC., AND WILD HOGS SCOOTERS AND

MOTORSPORTS, LLC,

Respondents.

____________________ ___________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on December 19, 2014, in Tallahassee, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hear ings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: G. Michael Smith, Esquire

Smith Collins, LLC

8565 Dunwoody Place, Building 15

Atlanta, Georgia 30350

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents ' application

to establish a dealership to sell motorcycles manufactured by

Chongqing Astron au tical Bashan Motorcycle Manufacturer Co., Ltd.

(BASH line - make), should be approved.

PRELIMINARY STATEMENT

On or about August 29, 2014, a notice was published in the

Florida Administrative Register (FAR) indicating the desire of

Respondent to establish a dealership to sell BASH line - make

motorcycles in Volusia County, Florida. Petitioner filed a

protest again st the proposed dealership dated August 21, 2014.

The matter was referred to the Division of Administrative

Hearings (DOAH) and assigned to the undersigned Administrative

Law Judge. Pursuant to notice, a final hearing was scheduled for

December 19, 2014. On December 16, 2014, Petitioner filed a

motion seeking a continuance of the final hearing. The motion

did not state the existence of an emergency and no good cause was

shown for a continuance. See Fla. Admin Code R. 28 - 106.210. The

motion was denied.

At the final hearing, held as originally noticed, Petitioner

did not make an appearance. Respondent did not call any

witnesses but offered E xhibits 1 - 6 into evidence, each of which

was admitted.

The transcript of the final hearing was not ordered. B y

rule, the parties are allowed up to ten days following the final

hearing to submit a proposed recommended order. As of this date,

neither Petitioner not Respondent has filed a proposed

recommended order.

FINDINGS OF FACT

1. Petitioner filed an ÐOffi cial Notice of Protest Î

Petition for DeterminationÑ dated August 21 , 2014, with the

Florida Department of Highway Safety and Motor Vehicles (HSMV) .

The protest/petition opposes RespondentÓs noticed intention to

establish a dealership to be called Wild Ho gs Scooters and

Motorsports, LLC , at 1431 South Woodland Boulevard, Deland

(Volusia County), Florida. Notice of that intent was duly

published in the Florida Administrative Register on August 29,

2014. (There was no explanation provided as to why Petitio nerÓs

protest/petition was filed before the publication of the notice.)

2. PetitionerÓs protest/petition asserts that RespondentÓs

proposed new dealership will be located Ðwithin our territory.Ñ

Petitioner further asserts that Peace Industry Group is its

Ðnumber two supplier of scooters, and represents 38% of our

scooter sales.Ñ Petitioner did not appear at final hearing or

present any competent evidence to support these allegations.

3. Respondent provided evidence suggesting that Petitioner

has only pu rchased seven motor - scooters from Peace Industry

Group.

4. Petitioner did not appear at final hearing and present

evidence as to its Ðstanding to protestÑ as required by section

320.642(3), Florida Statutes. (Unless specifically stated

otherwise herein , all references to Florida Statutes will be to

the 2014 version.)

5. Conversely, Respondent presented evidence that

PetitionerÓs dealership in Deland, Florida, has closed and gone

out of business. This unrefuted evidence proves that Petitioner

no longer has standing to protest RespondentÓs proposed new

dealership in the area.

6. The propriety of PetitionerÓs protest is the only issue

in this proceeding. A petitioner without standing cannot pursue

such a challenge.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding

pursuant to s ections 120.569 and 120.57(1), Florida Statutes.

8. This matter was transferred to DOAH from HSMV "for the

sole purpose of determining the propriety of the protest by

Petitioner regarding issues specifically within the purview of

sections 320.642 and 320.699, Florida Statutes." ( See letter

from Dealer License Section Administrator dated September 12,

2014.)

9. Section 320.699 addresses the process for obtaining an

administrative hearing and states, in pertinent part:

(1) A motor vehicle dealer, or person with

entitlements to or in a motor vehicle dealer,

who is directly and adversely affected by the

action or conduct of an applicant or licensee

which is alleged to be in violation of any

provision of ss. 320.60 - 320.70, may seek a

declaration and adjudication of its ri ghts

with respect to the alleged action or conduct

of the applicant or licensee by:

(a) Filing with the department a request for

a proceeding and an administrative hearing

which conforms substantially with the

requirements of ss. 120.569 and 120.57 ; or

(b) Fi ling with the department a written

objection or notice of protest pursuant to s.

320.642.

10. Section 320.642 sets forth the proc ess for establishing

a new motor vehicle dealership. That section states 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. The

notice must state:

(a) The specific location at which the

addition al 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 and any contiguous county to the

county where the additional or relocated

motor vehicle dealer is proposed to be

located.

(d) The names and addre sses 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 pu blished 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

notic e 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 under

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.

11. Florida Statutes clearly require a proposed licensee to

identify all currently franchised deale rs. Those dealers with

standing to protest are required to file a complaint within 30

days of the FAW notice. In this case, there is no evidence that

Petitioner was a licensed, franchised dealer at the time

RespondentÓs notice was filed in the FAR. Ther efore, Petitioner

has not established its standing to protest the proposed

dealership.

12. The remainder of s ection 320.642, (specifically

subsection (2)(b)1 . - 11 . ) addresses the determination of whether

existing franchised dealers are providing adequat e representation

in the community for the line - make at issue. Inasmuch as

Petitioner has not proved its standing to file a protest , that

portion of the statute is not relevant to this case. Respondent

did not address the elements in s ubsection 320.642(2) (b)1 .

through 11. However, in light of PetitionerÓs lack of

jurisdiction to protest the proposed dealership, Respondent did

not have a burden to prove or address those elements.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, it is

RECOMMENDED that a final order be entered by the Department

of Highway Safety and Motor Vehicles denying Petitioner, Navitas

Financial Group, Inc. , d/b/a Pompano Pat s Deland 's protest of

Respondent's proposed new dealership.

DONE AND ENTERED t his 12th day of January , 201 5 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division 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 12th day of January , 201 5 .

COPIES FURNISHED:

Jennifer Clark, Agency Clerk

Department of Highway Safety and Motor Veh icles

Neil Kirkman Building, Room A430

2900 Apalachee Parkway, MS 61

Tallahassee, Florida 32399

(eServed)

Julie Baker, Chief

Bureau of Issuance Oversight

Division of Motorist Services

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Room A - 338

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

(eServed)

Steve Hurm, General Counsel

Department of Highway Safety and Motor Vehicles

Neil Kirkman Building, Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(eServed)

Meiredith Huang

Peace Industry Group (USA), Inc.

2649 Mountain Industrial Boulevard

Tucker, Georgia 30084

Patrick M. Johnson

The Navitas Financial Group, Inc.

2075 South Woodland Boulevard

Deland, Florida 32720

Jeff Rupp

Wild Hogs Scooters and Motorspo rts, LLC

1861 Marysville Drive

Deltona, Florida 32725

G. Michael Smith, Esquire

Smith Collins, LLC

8565 Dunwoody Place

Building 15

Atlanta, Georgia 30350

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.