15-003982 Action Mopeds, Inc., D/B/A Action Wheelsport vs. Genuine Scooters, Llc, And Tropical Scooters, Llc, Status: Closed Recommended Order on Friday, March 25, 2016.

Summary: Petitioner failed to establish standing to protest proposed additional motor scooter dealer in Pinellas County, Florida.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GENUINE SCOOTERS, LLC,

Petitioner,

vs. Case No. 15 - 3982

ACTION MOPEDS, INC., d/b/a

ACTION WHEELSPORT AND TROPICAL

SCOOTERS, LLC,

Respondents.

_______________________________/

REC OMMENDED ORDER

On January 13, 2016, an administrative hearing was held in

Largo, Florida, before Lynne A. Quimby - Pennock, Administrative

Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Trey Duren , pro se

Genuine Scooters, LLC

2700 West Grand Avenue

Chicago, Illinois 60612

For Respondent: William A. Lynch , pro se

Action Mopeds, Inc.

5310 66th Street North

St. Petersbur g, Florida 33709

Michelle Stanley , pro se

Tropical Scooters, LLC

11610 Seminole Boulevard

Largo, Florida 33778

STATEMENT OF THE ISSUE

The issue in this case is the Ðpropriety of the pr otest

regarding issues specifically within the purview of sections

320.642 and 320.699, Florida Statutes.Ñ

PRELIMINARY STATEMENT

On July 14, 2015, Action Mopeds Inc., d/b/a Action

Wheelsport (Wheelsport) , filed a protest with the Department of

Highway Safe ty and Motor Vehicles (the Department). 1/ The

protest was in opposition to the establis hment of Tropical

Scooters, LLC (Tropical), as a dealership for the MOTI and LMLL

lines of motor scooters distributed by Genuine Scooters, LLC

(Genuine).

By letter dat ed July 16, 2015, the Department referred the

matter to DOAH to conduct a hearing "for the sole purpose of

determining the propriety of the protest regarding issues

spec ifically within the purview of s ections 320.642 and 320.699,

" All statutory references are to

Florida Statutes (2015) unless otherwise noted.

At the hearing, Genuine and Tropical appeared and testified

through their corporate officers. Wheelsport appeared and

testified through its corporate officer. GenuineÓs E xhibits one

through four were admitted over objectionopical did not

off er any exhibits. WheelsportÓs E xhibits one and two were

admitted over objection.

At the conclusion of the final hearing, Petitioner advised

the undersigned that the transcript wo uld be ordered. By rule

the parties have ten days from the date the transcript is filed

at DOAH to file proposed recommended orders (PROs). On

February 12, 2016 the undersigned was advised that no transcript

was being provided. Later that same day, a N otice of Filing the

Proposed Recommended Orders was issued advising the parties that

Ðany post - hearing submissions shall be filed on or before 5:00

p.m. (EST), on Monday,

February 22, 2016.

Genuine timely filed a PRO. To date , none of the other

parties h as filed a post - hearing document. To the extent that

GenuineÓs PRO contained new testimony or evidence, not subject

to cross - examination, that information has not been considered.

FINDING S OF FACT

1. On July 29, 2015, DOAH mailed a Notice of Hearing to

e ach of the parties, scheduling the final hearing for

January 13, 2016. No party objected to a final hearing on

January 13 , 2016 .

2. The dealership agreement between Wheelsport and Genuine

is not in evidence ; h owever, the weight of the evidence

establish ed that Wheelsport is an existing franchised dealer for

Genuine, and has been since GenuineÓs incorporation in 2003.

3. Standing to protest the establishment of an additional

new motor vehicle dealer depends on the population of the county

in which the pr oposed location sits. If the population is

greater than 300,000 persons, then a dealer of the same line -

make must either: i) be located within a radius of 12.5 miles

from the proposed location; or ii) "establish that during any

12 - month period of the 36 - month period preceding the filing of

the [manufacturer'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 12.5 miles

of the location of the proposed additional or relocated motor

vehicle dealer." § 320.642(3)(b), Fla. Stat.

4. The Department published the Notice, which indicated

GenuineÓs intent Ðto establish the new point location in a

county of more than 300,000 population, according to the latest

population estimates of the University of Florida, Bureau of

Economic and Business Research."

5. There was no testimony of the census, an actual count

of the population , or any population estimates in Pinellas

County in 2015. No evidence was presented showing that Pinellas

County, the county in which this dealership was proposed, had a

population of greater (or less) than 300,000. 2/

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has

ju risdiction over this proceeding pursuant to sections 120.569,

120.57(1), 320.642 and 320.699, Florida Statutes.

7. The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§§ 320.60 - 320.70, Fla. Stat .

8. Wheelsport bears the burden of establishing standing by

a preponderance of the evidence. Braman Cadillac, Inc. v. DepÓt

of High. Saf. & Motor Veh. , 584 So. 2d 1047, 1050 (Fla. 1st DCA

1991).

9. Section 320.642(1) requires a motor vehicle dealer w ho

proposes to establish an additional motor vehicle dealership

within an area already represented by the same line - make vehicle

to give written notice to the Department of its intent to

establish a new franchise. The statute also provides that any

affect ed dealership may protest the establishment of a new

franchise in its territory.

10. Section 320.699 provides in pertinent part:

(1) A motor vehicle dealer, or person

with entitlements to or in a motor

vehicle dealer, who is directly and

adversely affect ed 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 rights with respect to the alleged

action or conduct of the applicant or

licen see 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) Filing with the department a

written objection or notice of protest

pur suant to s. 320.642.

11. Wheelsport timely filed a protest with the Department.

12. Section 320.642(3) provides in pertinent part:

An existing franchised motor vehicle

dealer or dealers shall have standing

to protest a proposed additional or

relocated m otor 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 in a county with a population

of more than 300,000 according to the

most recent data of the United States

Ce nsus 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 o f

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 licenseeÓs

application f or 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 re located motor

vehicle dealer; provided such 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.

(Emphasis added) .

13. Wheelsport is an existing motor vehi cle dealer , which

failed to establish the size of the county in which the proposed

new dealership is to be established. Wheelsport failed to meet

its burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is REC OMMENDED that a final order be entered by the

Department of Highway Safety and Motor Vehicles dismissing

Action Mopeds Inc., d/b/a Action WheelsportÓs , protest of the

proposed establishment of an additional dealership for failure

to establish standing purs uant to section 320.642(3).

DONE AND ENTERED this 1st day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 1st day of March , 2016 .

ENDNOTE S

1/ The Department provided a copy of the published Notice of

Publication for a New Point Franchise Motor Vehicle Dealer in a

County of More than 300,000 Population in the Florida

Administrative Register, allowing Tropical Scooters, LLC, to

operate as a dealer of its motorcycles. The date on which the

Noti ce was published is unknown.

2/ The testimony presented used the term ÐareaÑ ; however , there

was no definition assigned to that term.

COPIES FURNISHED:

Jennifer Clark, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Neil Kirkman B uilding, Room A - 430

2900 Apalachee Parkway, Mail Stop 61

Tallahassee, Florida 32399

(eServed)

William Edward Van Cott

Department of Highway Safety

and Motor Vehicles

Neil Ki rkman Building, Room A - 430

2900 Apalachee Parkway, Mail Stop 61

Tallahassee, Florida 32399

(eServed)

William A. Lynch

Action Mopeds, Inc.

5310 66th Street North

St. Petersburg, Florida 33709

Trey Duren

Genuine Scooters, LLC

2700 West Grand Avenue

Chicago, Illinois 60612

(eServed)

Michelle Stanley

Tropical Scooters, LLC

11610 Seminole Boulevard

Largo, Florida 33778

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)

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.