19-002718 Imotorsports Sbp, Llc D/B/A St. Pete Powersports vs. West Coast Outdoor Sports, Llc D/B/A Gables Motorsports Wesley Chapel And Vanderhall Motor Works, Inc. Status: Closed Recommended Order on Tuesday, December 10, 2019.

Summary: Petitioner failed to establish standing to protest proposed additional autocycle dealer in Pasco County, Florida.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IMOTORSPORTS SBP, LLC d/b/a ST.

PETE POWERSPORTS,

Petitioner,

Case No. 19 - 2718

vs.

WEST COAST OUTDOOR SPORTS, LLC

d/b/a GABLES MOTORSPORTS WESLEY

CHAPEL AND VANDERHALL MOTOR

WORKS, INC.,

Respondents.

___ ____________________________/

RECOMMENDED ORDER

On October 8, 2019 , Administrative Law Judge Hetal Desai of

the Division of Administrative Hearings (DOAH) held a final

hearing by vide o teleconference at locations in Tallahassee a nd

St. Petersburg , Florida.

APPEARANCES

For Petitioner: Haider Saba , pro Se

IMotorsports SBP, LLC

555 34 th Street, South

St. Petersburg , Florida 35711

For Respondent s : Jeff Whaley , V P of Sales and O perations

Corporate Representative

Vanderhall Motor Works, Inc.

3500 Mountain Vista Parkway

Provo, Utah 84606

Nigel Bailey , pro se

West Coast Outd oor Sports, LLC

28009 Wesley Chapel Boulevard

Wesley Chapel, Florida 33543 - 3202

STATEMENT OF THE ISSUE S

The issues in this case are whether Petitioner has standing

to protest the establishment of an additional autocycle

dealership; and, if so, whether Petitioner is adequately

representing this line of vehicles in the relevant territory or

community pursuant to section 320.642, Florida Statutes (2019). 1/

PRELIMINARY STATEMENT

On April 30, 2019, the Department of Highway S afety and

Motor Vehicles (the Department) published notice in the Florida

Administrative Register (Volume 45, Number 84, p. 1867) of its

intent to allow Respondent West Coast Outdoor Sports, LLC d/b/a

Gables Motorsports Wesley Chapel (Gables Motorsports) t o serve as

a dealership for the sale of motor vehicles manufactured by

Respondent Vanderhall Motor Works, Inc. (Vanderhall). 2/ On

May 15, 2019, Petitioner iMotorsports SBP, LLC d/b/a St. Pete

Powersports (iMotorsports) filed a c omplaint protesting

Respond ents ' application and the Department' s intention to grant

the application.

The Department referred the matter to DOAH on May 21, 2019,

and requested a formal hearing. The undersigned issued an

Initial Order requesting the parties provide, among other

inf ormation, dates and venue prefe rences for the hearing. None

of the parties submitted a response to the Initial Order, and the

matter was set for hearing.

A pre - hearing telephone conference was noticed and set for

October 1, 2019. None of the parties cal led in for that pre -

hearing conference.

At the hearing, Petitioner appeared and offered the

testimony of its owner, Haider Saba, but it did not offer any

exhibits. Respondent Gables Motorsports offered the testimony of

its owner, Nigel Bailey, but did not offer any exhibits.

Respondent Vanderhall offered the testimony of Jeffrey Whaley ,

the V ice President of Sales and Operations. Vanderhall offered

witho ut objection Exhibits 1, 2, 3A , and 3B, all of which were

admitted into evidence.

At the conclusion of the final hearing, Vanderhall indicated

it intended to order the transcript of the hearing. The

Tran script was filed on November 18 , 2019. Respondent Vanderhall

filed an untimely P roposed R ecommended O rder (PRO) on December 4,

2019, which has been revie wed , but not considered . Neither

Petitioner nor Respondent Gables Motorsports file d a PRO .

FINDING S OF FACT

1. iMotorsports is located in Pinellas County. No evidence

was provided regarding its address or location. The parties

stipulated, however, that iMotorsports is located 45.9 miles from

Gables Motorsports, and is outside of a 12.5 mile radius of the

proposed dealership, Gables Motorsports.

2. Gables Motorsports is located in Pasco County, Florida

at 28009 Wesley Chapel Boulevard, Wesley Chapel, F lorida 33543.

3 . According to the U.S. Census Bureau and University of

Florida, Bureau of Economic Research, the population of Pasco

County, Florida, was 464,697 as of April 1, 2010. The estimated

population as of April 1, 2018, for this same area was 5 15,077.

4 . Vanderhall manufactures " autocycles " or two - passenger,

three - wheeled motor vehicles and sells them nationally. At the

time of the hearing there were eight to ten dealerships

distributing the Vanderhall autocycles in Florida, and there were

55 Vanderhall dealerships or distributors nationwide. In these

proceedings , Vanderhall seeks to allow Gables Motorsports to

serve as a dealership to sell and service the Vanderhall

auto cycles .

5 . Although no franchise agreement was offered i nto

evidence, based on Mr. Saba' s testimony, the undersigned finds in

June or July 2018 , iMotorsports entered into an agreement w ith

Vanderhall to sell its auto cycles.

6 . According to the documentation offered by Vanderhall,

iMotorsports has sold 15 Vanderhall autoc ycles since it became a

Vanderhall dealership, approximately 14 months ago. None of

those sales were to households within a 12.5 mile radius of the

proposed dealership at Gables Motorsports.

7 . Mr. Saba agreed iMotorsports had not had any sales to

house holds in the 12.5 mile radius around Gable s Motorsports, but

argued at the hearing that verbal promises were made by

Vanderhall that it would not establish any other Vanderhall

dealerships in Florida.

Ultimate Findings Regarding Standing

8 . iMotorsports is an existing dealership that sells

Vanderhall autocycles.

9 . iMotorsports is not within a 12.5 mile radius of the

proposed dealership at Gables Motorsports.

10 . iMotorsports has failed to establish that during the

12 - month period preceding the filing of the application for the

proposed dealership by Gables Motors ports and Vand erhall,

iMotorsp orts or its predecessor made 25 percent of its retail

sales of the Vanderhall autocycles to registered household

addresses within a 12.5 mile radius of Gables Moto rsports.

11 . Therefore, iMotorsports does not have standing to bring

this challenge pursuant to section 320.642(3) .

CONCLUSIONS OF LAW

12 . The Division of Administrative Hearings has

jurisdiction over this proceeding pursuant to sections 120.569,

120.5 7(1), 320.642 , and 320.699 , Florida Statutes .

13 . The Department is the agency responsible for regulating

the licensing and franchising of motor vehicle dealers.

§§ 320.60 - 320.70, Fla. Stat.

14 . The purpose of these regulations is " to prevent

powerful m anufacturers from taking unfair advantage of their

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

justified by the legitimate interests of the manufacturer and its

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

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

section 320.642 requires a determination as to " whether an additional (either new or relocated) dealership is justified,

economically and otherwise, from the viewpoints of the existing

dealers and the pu blic, respectively. " Gen. Motors Corp. v. Fla.

Dep' t of High. Saf. & Motor Veh . , 625 So. 2d 76, 78 (Fla. 1st DCA

1993).

15 . As explained in section 320.642(2)(a), a challenge to a

motor vehicle dealership application involves a two - par t analysis:

(1) th e challenger' s standing; and (2) the adequacy of existing

representation of the same vehicle line.

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

which provides in relevant part :

(3) An existing franchised motor vehicle

dealer or dealers shal l 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 mo tor 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 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 lic ensed

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 establish that during any 12 - month period of the 36 -

m onth period prece ding the filing of the

licensee' 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

household addresses were located withi n 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 additional

or relocated dealer is proposed t o be

located. (emphasis added)

17 . iMotorsports (as the " existing franchised motor vehicle

dealer " ) has the initial burden of establishing standing by a

preponderance of the evidence. See Recovery Racing, LLC v. State

Dep ' t of High. Saf. & Motor Veh. , 1 92 So. 3d 665, 669 n.1 (Fla.

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

" squarely on the existing dealer " to show its standing).

18 . If standing is established, the burde n shifts to

Respondents Gables Motorsports and Vanderhall (as t he applicants

for the new dealer license) to establish by a preponderance of

the evidence that iMotorsports (as the existing Vanderhall

dealer) is not providing adequate representation of the

Vanderhall autocycles . See § 320.642(2) , Fla. Stat . ( explaining

" [t] he burden of proof in establishing inadequate represen tation shall be on the licensee" and requir ing a determination regarding

the adequacy of existing representation to be based on evidence

directed to 11 enumerated issues).

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

iMotorsports has failed to me e t its burden of establishing

standing . Therefore, the burden to show a new dealership was

"justified" never shifted to Respondents .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclu sions of

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

Department of Highway Safety and Motor Vehicles finding

iMotorsports lacks standing, and dismissing iMotorsports '

challenge of the Respondents ' new dealership application for the

sale of Vanderhall vehicles at Gables Motorsports .

DONE AND ENTERED this 10 th day of Dec ember , 2019 , in

Tallahassee, Leon County, Florida.

HETAL DESAI

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 10 th day of Decem ber , 2019 .

ENDNOTE S

1/ Unless specifically stat ed otherwise, all statutory and

regulatory references are to the 201 9 version s of the Florida

Statutes and Florida Administrative Code .

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

undersigned takes official recognition of the notice publ ished 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 Park way

Tallahassee, Florida 32399 - 0500

(eServed)

Nigel Bailey

West Coast Outdoor Sports, LLC

28009 Wesley Chapel Boulevard

Wesley Chapel, Florida 33543 - 3202

Teresa Shepherd

Vanderhall Motor Works, Inc.

3500 Mountain Vista Parkway

Provo, Utah 84606

(eServe d)

Timothy Walter

iMotorsports SBP, LLC

334 West Grand Avenue

Elmhurst, Illinois 60126 - 1127

(eServed)

Timothy Walter

iMotorsports SBP, LLC

555 34th Street, South

St. Petersburg, Florida 33711 - 1719

Jeffrey Whaley, VP of Sales and Operations

Vanderhall Motor Works, Inc.

3500 Mountain Vista Parkway

Provo, Utah 84606

(eServed)

Haider Saba

iMotorsports SPB, LLC

555 34th Street South

St. Petersburg, Florida 33711

(eServed)

Robert Kynoch, Director Division of Motorist Services

Highway Safety and Motor Ve hicles

Neil Kirkman Building , Room B - 435

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0635

(eServed)

Christie S. Utt, General Counsel

Highway Safety and Motor Vehicles

Neil Kirkman Building , Room A - 432

2900 Apalachee Parkway

Tallahassee, Florida 32 399 - 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.