18-002025 Tropical Scooters, Llc vs. Pinellas Powersports, Llc, And Motrac Motorcycles, Llc Status: Closed Recommended Order on Friday, July 27, 2018.

Summary: Petitioner had standing to challenge the establishment of a new YGNF dealership, and there was no evidence Petitioner was inadequately representing that line-make. The new dealership application should be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TROPICAL SCOOTERS, LLC,

Petitioner,

vs. Case No. 18 - 2025

PINELLAS POWERSPORTS, LLC ; AND

MOTRAC MOTORCYCLES, LLC,

Respondents.

_______________________________/

RECOMMENDED ORDER

On July 9, 2018, Admin istrative Law Judge Hetal Desai of the

Division of Administrative Hearings (DOAH) held a final hearing

in Largo, Florida.

APPEARANCES

For Petitioner: Michele R. Stanley , pro se

Tropical Scooters, LLC

11594 Seminole Boulevard

Largo, Florida 33778

For Respondent: No appearance

STATEMENT OF THE ISSUE S

The issues in this case are whether Petitioner has standing

to protest the establishment of an additional motorcycle

dealership; and , if so, whether Petitioner is adequately

representing this line of motorcycles in the relevant territory

or community pursuant to section 320.642, Florida Statutes

(201 8 ). 1/

PRELIMINARY STATEMENT

On February 22, 2018, the Department of Highway Safety and

Mo tor Vehicl es (the Department) published notice in the Florida

Administrative Register (Volume 44, Number 37, p. 898 - 899) of its

intent to allow the establishment of Respondent Pinellas

Powersports , LLC (Powersports), as a dealership for motorcycles

produce d by Sanmen County Youngfu Machine, Co. , Ltd. (YNGF) , and

distributed by Respondent Mot rac Motorcycles, LLC (Mot rac). On

March 22, 2018, Tropical Scooters, LLC (Tropical Scooters) , filed

a complaint protesting Respondents Ó application and the

Department Ó s intention to grant the application.

The Department referred the matter to DOAH on April 17,

2018 , and requested a formal hearing. An Initial Order was

issued on April 18, 2018, requesting the parties provide, among

other information, dates and venue pre ferences for the hearing.

Neither party submitted a response to the Initial Order.

On May 1, 2018, the undersigned set the matter for hearing

and DOAH mailed a Notice of Hearing to the parties Ó

representatives listed on the Department Ó s referral letter. On

May 16, 2018, an Amended Notice of Hearing was mailed by DOAH to

the parties. No party objected to the hearing date of July 9,

2018.

At the hearing, Petitioner appeared and offered the

testimony of its owner and corporate officer Michele R. Stanley;

it did not offer any evidence or exhibits. Respondents did not

appear at the hearing.

At the conclusion of the final hearing, Petitioner was

instructed about its right to order the transcript and provide a

p roposed recommended order (PRO), but n o transcript was ordered .

Petitioner submitted its PRO on July 19, 2018, which has been

considered.

FINDING S OF FACT

1. Tropical Scooters is located at 11594 Seminole

Boulevard, Largo, Florida 33778. It has been in the business of

selling scooters and other motori zed vehicles for ten years.

2. Michele Stanley is the owner and manager of Tropical

Scooters and she has knowledge regarding its purchasing and

franchise agreements, inventory, and sales figures.

3. Although no franchise agreement was offered into

eviden ce, Ms. Stanley testified Petitioner has an agreement with

a distributor, Pacific Rim International , d/b/a Ice Bear ATV (Ice

Bear) , to sell YNGF motorcycles.

4. Ice Bear has been supplying Petitioner with YNGF

motorcycles for approximately two and a half years. Tropical

Scooters has had a good relationship with this distributor and

has encountered no problems selling the YNGF line.

5. In the last 18 months, Tropical Scooters has sold 137

YNGF units and currently has 23 units at its showroom.

6. Ms. Stan ley discovered that Respondents had applied wit h

the Department to establish a YNGF motorcycle dealership at

9145 66th Street North, Pinellas Park, Florida 33782, from the

February 22, 2018 , notice published by the Department in the

Florida Administrative Register. 2 / Subsequently, Tropical

Scooters filed a timely complaint with the Department challenging

Respondents Ó application .

7. Ms. Stanley was familiar with the proposed location of

the new dealership and stated that it was four miles Ð as the crow

fl ies Ñ from the Tropical Scooters showroom.

8. Tropical Scooters is an existing dealership that sells

YNGF motorcycles and is within 12.5 of the location proposed by

Powersports and Mot rac for the new dealership. Therefore,

Tropical Scooters has standing t o bring this challenge pursuant

to section 320.642(3).

9. There was no evidence that Tropical Scooters Ó

representation of the YGNF line of motorcycles was inadequate in

its community or territory as described in section 320.642(2)(b).

CONCLUSIONS OF LAW

1 0. The Division of Administrative Hearings has

jurisdiction over this proceeding pursuant to sections 120.569,

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

11 . The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§§ 320.60 - 320.70, Fla. Stat.

12. The purpose of these regulations is Ð to prevent

powerful manufacturers from taking unfair advantage of their

dealers by overloading a market area with more dealers than can be

justified by the legi timate interests of the manufacturer and its

dealers, existing and prospective. Ñ Bill Kelley Chevrolet, Inc.

v. Calvin , 322 So. 2d 50, 52 (Fla. 1st DCA 1975). As such,

section 320.642 requires a determination as to Ð whether an

additional (either new or relocated) dealership is justified,

economically and otherwise, from the viewpoints of the existing

dealers and the public, respectively. Ñ Gen. Motors Corp. v. Fla.

Dep Ó t of High. Saf. & Motor Vehs. , 625 So. 2d 76, 78 (Fla. 1st DCA

1993).

13. As explaine d in section 320.642(2)(a), a challenge to a

motor vehicle dealership application involves a two - part analysis:

(1) the challengerÓs standing; and (2) the adequa cy of existing

representation of the same vehicle line . That section states in

relevant part:

( 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 . . . and

2. The licensee fails to show tha t 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

vehicl es in such community or territory. The

burden of proof in establishing inadequate

representation shall be on the licensee .

( e mphasis added).

14. Standing is further addressed in section 320.642(3),

which provides in relevant part :

(3) An existing fran chised 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 lo cated 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[.]

15. Tropical Scooters (as the Ð existing franchised motor

vehicle dealer Ñ ) h as the initial burden of establishing standing

by a preponderance of the evidence. See Recovery Racing, LLC v.

State Dep Ó t of High. Saf. & Motor Vehs. , 192 So. 3d 665, 669 n.1

(Fla. 4th DCA 2016)(noting plain language of statute places the

burden Ð squarel y on the existing dealer Ñ to show its standing).

16. Once standing is established, the burde n shifts to

Powersports and Mot rac (as the applicants for the new dealer

license) to establish by a preponderance of the evidence that

Tropical Scooters (as the ex isting YNGF dealer) is not providing

adequate representation of YNGF products. See § 320.642(2);

Gen. Motors Corp. , 625 So. 2d at 77 (noting subsection (2)

requires a determination regarding the adequacy of existing

representation in the comm unity or ter ritory to be based on

evidence directed to 11 enumerated issues).

17. Here, regarding the first part of the analysis,

Tropical Scooters met its burden of establishing standing .

18. As to the second part of the analysis, there was no

evidence that Tropica l Scooters was providing in adequate

representation of the YNGF line of motorcycles.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Department denying the new dealership application o f Respondents

for the sale and service of Sanmen County Youngfu Machine Co. ,

Ltd . , vehicles at 9145 66th Street North, Pinellas Park, Pinellas

County, Florida.

DONE AND ENTERED this 27th day of July , 2018 , in

Tallahassee, Leon County, Florida.

S

HETAL DESAI

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 27th day of July , 2018 .

ENDNOTE S

1 / Unless specifically stated otherwise, all references to

Florida Statutes are to the 201 8 version.

2 / Pursuant to section 90.202(5), Florida Statutes, t he

undersigned takes official recognition of the notice published in

the Florida Administrative Register , which was provided by the

Dep artment with the referral to DOAH .

COPIES FURNISHED:

Joseph R. Gillespie, Agency Clerk

Department of Highway Safety

and Motor Vehicles

Room A432, Mail Stop 2

2900 Apalachee Parkway

Tallahassee, Florida 32399

(eServed)

Roberto Giosrti

Motrac Motorcycles, LLC

Suite 114

10501 South Orange Avenue

Orlando, Florida 32824 - 7748

Michele R. Stanley

Tropical Scooters, LLC

115 94 Seminole Boulevard

Largo, Florida 33778

Terry L. Rhodes, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building , Room B - 443

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

(eServed)

Christie S. U tt, Genera l 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.