18-002230 Midtown Cycles Of Daytona, Inc., D/B/A Midtown Motors vs. Exotic Motor Cars Of Daytona Beach, Llc, D/B/A All Out Powersports And Motrac Motorcycles, Llc Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, November 13, 2018.

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

MIDTOWN CYCLES OF DAYTONA, INC.,

d/b/a MIDTOWN MOTORS ,

Petitioner,

HSMV Case No.: MS - 18 - 471

vs.

DOAH Case No .: 18 - 2230

EXOTIC MOTOR CARS OF DAYTONA

BEACH, LLC d/b/a ALL OUT

POWERSPORTS AND MOTRAC

MOTORCYCLES, LLC , FINAL ORDER NO.:

Respondent s . DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICL ES

________________________________ _____ _/

FINAL ORDER

This matter comes before the Department of Highway Safety and Motor Vehicles upon

submission of an Order Closing File W ithout Prejudice and Relinquishing Jurisdiction issued

November 13 , 2018 , by the Honorable James H. Peterson, III, Administrative Law Judge of the

Di vision of Administrative Hearings, based on PetitionerÓs Motion for Case Resolution filed

November 7, 2018 , and RespondentÓs Statement of Fact filed November 7, 2018 .

Upon jurisdiction being relinquished to the Department, to ensure all parties had a full

opportunity to be heard on the matter, on November 27, 2018, the Department issued an Order

Requiring Response and Placing Case in Abeyance, which directed the parties to confer and advise

the Department as to the status of settlement negotiations by December 31, 2018 . The order further

notified the parties that failure to timely advise the Department as directed may result in entry of

a final order dismissi ng the case and closing the file. The Department has received no response

from the parties.

Upon review of the Order Closing File Without Prejudice and Relinquishing Jurisdiction

and the record in the above - styled case , and being fully advised in the premi ses, the Department

hereby dismisses the petition as moot. Accordingly, it is ORDERED that the case is CLOSED .

If the Respondents subsequently reapply for this franchise location, notice of a new application

must be published in the Florida Administrative Register pursuant to section 320.642(1), Florida

Statutes.

Page 1 of 3

MIDTOWN CYCLES OF DAYTONA, INC. v. EXOTIC MOTOR CARS OF DAYTONA BEACH, LLC &

MOTRAC MOTORCYCLES, LLC

HSMV Case No. MS - 18 471

DOAH Case No. 18 - 2230

DONE AND ORDERED this _____ day of __________ , 2019, at Tallahassee, Leon

County, Florida.

Robert Kynoch , Director of Motorist Services

Department of Highway Safety and Motor Vehicles

2900 Apala chee Parkway

Tallahassee, Florida 32399

COPIES FURNISHED this _____ day of __________ , 2019 , to :

Jo seph R. Gillespie, Agency Clerk David Hurtibise

Department of Highway Safety Midtown Motors

and Motor Vehicles 739 Mason Avenue

Room A432, Mail Stop 2 Daytona Beach, Florida 32117

2900 Apalachee Parkway [e-mail]

Tallahassee, Florida 32399 Randy Wright

[e-mail]

[e-mail] All Out Powersports 1732 Covendale Lane

Roberto Giostri Port Orange, Florida 32128

Motrac Motorcycles, LLC

10501 South Orange Avenue , Unit 114 Palmer Brand, Chief of Dealer Services Department of Highway Safety

Orlando, Florida 32824 and Motor Vehicles

Neil Kirk man Building, Room A - 312, MS 65

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

[e-mail]

Page 2 of 3

MIDTOWN CYCLES OF DAYTONA, INC. v. EXOTIC MOTOR CARS OF DAYTONA BEACH, LLC &

MOTRAC MOTORCYCLES, LLC

HSMV Case No. MS - 18 - 471

DOAH Case No. 18 - 2230

NOTICE OF APPEAL RIGHTS

A party adversely affected by this final order may seek judicial review as provided in

section 120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.190. Judicial review

is initiated by filing a notice of appeal with the Agency Clerk, and a copy of the notice of appeal,

accompanied by the filing fee, with the appropriate district court of appeal. The notice of appeal

must conform to the requirements of Florida Rule of Appellate Procedure 9.110(d) and must be

filed ( i.e., received by the Agency Clerk) within th irty days of rendition of this final order.

Filing with the Department Ó s Agency Clerk may be accomplished by U.S. mail, express

overnight delivery, hand delivery, facsimile transmission, or electronic mail. The address for

overnight delivery or hand delive ry is Joseph Gillespie, DHSMV Agency Clerk, Department of

Highway Safety and Motor Vehicles, 2900 Apalachee Parkway, A - 432, MS - 2, Tallahassee,

Florida 32399. The facsimile number is (850) 617 - 5112. The email address is

[e-mail] .

Page 3 of 3

MIDTOWN CYCLES OF DAYTONA, INC. v. EXOTIC MOTOR CARS OF DAYTONA BEACH, LLC &

MOTRAC MOTORCYCLES, LLC

HSMV Case No. MS - 18 - 471

DOAH Case No. 18 - 2230

STATE OF FLORIDA

DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES

MIDTOWN CYCLES OF DA YTONA, INC.,

d/b/a MIDTOWN MOTORS,

Petitioner,

vs. HSMV Case Nos.: MS-18-471

DOAH

EXOTIC MOTOR CARS OF DA YTONA Case Nos.: 18-2230

BEACH, LLC d/b/a ALL OUT

POWERSPORTS AND MOTRAC

MOTORCYCLES, LLC,

Respondents.

/

ORDER REQUIRING RESPONSE AND PLACING CASE IN ABEYANCE

This matter cornes before the Department of Highway Safety and Motor Vehicles upon

submission of an Ortler Closing File Without Prejudice and Relinquishing Jurisdiction

November issued

13, 2018, by the Honorable James H. Peterson, III, Administrative Law Judge of the

Division of Administrative Hearings, based on Petitioner's Motion for Case Resolution

November filed

7, 2018; Respondent's Statement of Fact filed November 7, 2018; and a telephonic

hearing conducted by the Administrative Law Judge in which "the parties announced

had, that they

in theory, resolved this case to the satisfaction of both parties, but wanted to make sure

their rights were that

preserved should the agreement between them not be finalized." 1

Upon review of the Ortler and the record in the above-styled case, and being full y advised

in the premises, it is ORDERED that:

1. The above-styled case is held in abeyance until December 31, 2018. The case

immediately will

be retumed to active status J anuary 1, 2019, or upon motion of any party before that

date; and

2. No later than December 31, 2018, the parties shall confer and advise

undersigned in the

writing as to the status of the settlement negotiations. Failure of the parties to timely

advise the undersigned as directed may result in entry of a final order dismissing the

closing case and

the file.

1 Order Closing File Without Prejudice and Relinquishing Jurisdiction, DOAH Case

13, 2018). No. 18-2230 (Fla. DOAH Nov.

Page 1 of2

MIDTOWN CYCLES OF DA YTONA, INC. v. EXOTIC MOTOR CARS OF DA YTONA BEACH, LLC

MOTRAC MOTORCYCLES, LLC &

HSMV Case No. MS-18-471

DOAH Case No. 18-2230

. ;v-.

DONE AND ORDERED this l f\\ day ofNovember, 2018.

Department of Highway Safety and Motor Vehicles

2900 Apalachee Parkway

Tallahassee, Florida 32399

COPIES FURNISHED this 2 6 day ofNovember, 2018, to:

Joseph R. Gillespie, Agency Clerk David Hurtibise

Department of Highway Safety Midtown Motors

and Motor Vehicles 739 Mason Avenue

Room A432, Mail Stop 2 Daytona Beach, Florida 32117

2900 Apalachee Parkway david @ m yn ewc y cle.com

Tallahassee, Florida 32399

ogcfiling@flhsmv . gov Randy Wright

joegillespie@flhsmv . gov All Out Powersports

1732 Covendale Lane

Roberto Giostri Port Orange, Florida 32128

Motrac Motorcycles, LLC

Unit 114 Palmer Brand, Chief of Dealer Services

10501 South Orange Avenue Department of Highway Safety

Orlando, Florida 32824 and Motor Vehicles

Neil Kirkman Building, Room A-312, MS 65

2900 Apalachee Parkway

Tallahassee, Florida 32399-0635

p almerbrand @ flhsmv. g ov

Page 2 of2

MIDTOWN CYCLES OF DA YTONA, INC. v. EXOTIC MOTOR CARS OF DA YTONA BEACH, LLC &

MOTRAC MOTORCYCLES, LLC

HSMV Case No. MS-18-471

DOAH Case No. 18-2230

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIDTOWN CYCLES OF DAYTONA, INC.,

d/b/a MIDTOWN MOTORS,

Petitioner,

vs. Case No. 18-2230

EXOTIC MOTOR CARS OF DAYTONA

BEACH, LLC, d/b/a ALL OUT

POWERSPORTS AND MOTRAC

MOTORCYCLES, LLC,

Respondents.

OROER CLOSING FILE WITHOUT PREJUDICE AND RELIN Q UISHING

JURISDICTION

At a telephonic hearing held on the Motion for Case

Resolution filed on behalf of Midtown Cycles of Daytona Beach

Inc., d/b/a Midtown Motors (Petitioner) and the Statement of

Fact filed on behalf of Exotic Motor Cars of Daytona Beach, LLC,

d/b/a All Out Powersports and Motrac Motorcycles, LLC.

(Respondent), the parties announced that they had, in theory,

resolved this case to the satisfaction of both parties, but

wanted to make sure that their rights were preserved should the

agreement between them not be finalized. Therefore, in order to

allow this case to be resolved between the parties and preserve

their rights asserted in this case, it is,

ORDERED:

1. The final hearing in this case currently scheduled for

November 30, 2018, is CANCELLED.

2. The file of the Division of Administrative Proceedings

in this case is hereby CLOSED without prejudice to either party

reasserting their rights asserted in this case or bringing a

subsequent action should the parties fail to resolve the case as

anticipated.

3. Jurisdiction of this case is relinquished back to the

Florida Department of Highway Safety and Motor Vehicles,

Division of Motor Vehicles, to the extent necessary for final

resolution, or for such other further or appropriate relief or

proceedings.

DONE AND ORDERED this 13th day of November, 2018, in

Tallahassee, Leon County, -- · ---------------

JAMES H. PETERSON, III

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 13th day of November, 2018.

COPIES FURNISHED:

Joseph R. Gillespie, Agency Clerk

Department of Highway Saf ety

and Motor Vehicles

Room A4 32 , Mail Stop 2

2900 Apalache e Parkway

Tallahassee, Florida 32399

(eServed)

Roberto Giostri

Motra c Motorcy c les, LLC

Unit 114

10501 South Orange Avenue

Orlando, Florida 32824

David Hurtibise

Midtown Motors

7 39 Mason Avenue

D aytona Beach, F lorida 32117

(eS er ved)

Randy Wright

All Out Powersports

1732 Covendale Lane

Port Orange, Florida 32128

STl\\TE OF FLORlDA

DIVISION OF 1\\IJl'v1lNJSTRATIVE HEARINGS

tv1TDTOWN CYCLES OF DAYTONA, TNC .. d/b/a

tvUDTOWN MOTORS.

Petitioner,

Case No . 18-2230

vs. MS-18-47 J

EXOTJC MOTOR CARS OF DAYTONA BEACH, LLC,

d/b/a ALL OUT POWERSPORTS AND MOTRAC

MOTORCYCLES. LLC,

Respondents.

----- - --------- ---- ·- ---------··_/

Motion for Case Resolution

Dear Judge James H. Peterson, Ill,

On August 14th, 2018 1 received an email from Randy \\Nright indicat!ng tl1at

he wished to signa document resolving the line-make dispute. On

08-23-18 my staff prepared a document and emai!ed it directly to Mr .

Wright. Mr. Wright returned the notarized document to our office on

September 18th, 2018. (See Attachment A)

ln light of the fact that Exotic Motor Cars of Daytona Beach, LLC has

1 removed its request to sell the YNGF line-make. Midtown Cycles of

' Daytona, !ne. requests

that this case be resolved in the manner the court

sees fit.

Midtown Cycles of Daytona, lnc. wishes to retain the right to use all legai

remedies in the event Exotic Motor Cars of Daytona Beach, LLC or any

other entity applies to add a line-make protected by our "sphere of

influence" to their respective dealers license.

(11.p;JllD 12:07 PM Division of Administrative Hearings

Midtown Cycles of Daytona, lnc. appreciates your time and consideration

on this matter. We are hopeful that this issue will be resolved without turther

issue for any involved parties.

Sincerely,

David L. Hurtibise

CEO Midtown Cycles of Daytona, !ne . d/b/a Midtown Motors

739 Mason Avenue

Daytona Beach, Florida 32117

[phone]

www.mynewcycle.com

Mailed to the Clerk of DOAH this 19th day of October, 2018.

COPIES FURNISHED:

Joseph R. Gillespie Agency Clerk Robert Giostri

(850) 617- 3101 [phone]

David L. Hurtibise Randy Wright

[phone] (386) 310 - 7884

Stateme n t of Fact

As the deèision maker for Exotic Motor Cars of Daytona Beach, LLC, d/b/a Ali Out Powersports,

1 make the following statement:

Let it be known by any party with interest: Exotic Motor Cars of Daytona Beach, LLC, d/b/a Ali

Out Powersports, would like to release all claims, applications, requests, or petitions to add the

YNGF line-màke to our dealers licence TSsued by the State of Florida. Any submitted request to

establish Exotic Motor Cars of Daytona Beach, LLC, d/b/a Ali Out Powersports, as the YNGF

line-make dealer was either made in error or is simply no longer desired. 1 am releasing any

claim to this line-make in hopes of extinguishing the current dispute between myself and

Mîdtown Cycles of Daytona, lnc.

/l

X 1,

Notary:

State of Florid\\ / l ,

County of .! O Ll 1 CL

Signed and sworn to [or affirmed] before me on ..$:pr . 1 Bt"= . 2oif2

by ______________ . Stamp:

MAhC! J

1 0t;ry;v<;fficial signature)="">

( T i l l e )

(Commission Expiration)

Filed November 7, 2018 12:08 PM Division of Administrative Hearings