Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s Motion to Dismiss as Moot, filed February 01, 2011. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed February 15, 2011 1:36 PM Division of Administrative Hearings DONE AND ORDERED this __/ 4 day of February, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divisionof Motor Vehicles this day of February, 2011. Nalini Vinayak, Dealer Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Mary B. Meeks, Esquire Carlton Fields 450 South Orange Avenue, Suite 500 Orlando, Florida 32801 John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 Steven J. Yatvin, Esquire Barack, Ferrazzano, Kirschbaum & Nagelberg, LLP 200 West Madison Street, Suite 3900 Chicago, Illinois 60606 Daniel M. Kilbride Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Daniel Manry, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Scooter City USA, LLC, be granted a license as a dealer for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd (ZHNG) at 2650 West Fairbanks Avenue, Winter Park (Orange County), Florida 32789 upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. DONE AND ORDERED this % ay of June, 2009, in Tallahassee, Leon County, Florida. 'ARL A. FORD, Direct Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this £4 “ay of June, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procédure. CAD/vlg Copies furnished: James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32301 Thomas Lynott Classic Motorcycles and Sidecars, Inc. Post Office Box 969 Preston, Washington 98050 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 STATE OF FLORIDA EE, DIVISION OF ADMINISTRATIVE HEARINGS io Us Ga [es Pe) CLASSIC MOTORCYCLES AND __ Ulu We 9 SIDECARS, INC., AND SCOOTER “hy, lois ne CITY USA, LLC, MEM Rar Petitioner, “AYA 165 (VE VS. Case Nos. 09-0118 09-0119 JAMES SURSELY, d/b/a ACTION ORLANDO MOTORSPORTS, Respondent. NOTICE OF WITHDRAWAL I, James Sursely d/b/a Action Orlando Motorsports, would like to officially withdraw my protest against Classic Motorcycles and Sidecars Inc., and Scooter City USA, LLC, located at 2650 West Fairbanks Avenue, Winter Park, Florida 32789 to carry the (ZHNG) Taizhou Zhongneng Motorcycle Co. Ltd. I still however, am continuing my protest against Classic Motorcycles and Sidecars, Inc., and Scooter City USA, LLC. to carry the (ZHNG) Taizhou Zhongneng Motorcycle Co. Ltd. line make at the following address 2164 Platinum road, unit K, Apopka, Florida 32703. : Respectfully submitted this 117" day of May, 2009, 306 W. Main St. Apopka, Florida 32712 (407) 889-7300 CERTIFICATE OF SERVICE I certify that a true and correct copy of this Unilateral Response to Initial Order has been furnished via Fax (850) 921-6847and U.S mail to: Honorable DANIEL MANRY, Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060 Michael James Alderman, Esquire, Department of Highway Safety and Motor Vehicles, Neil Kirkman Building, room A~432, 2900 Apalachee Parkway, Tallahassee, Florida 32344 Maureen McCarthy Daughton, Esquire, Broad and Cassel, 215 South Monroe Street, Suite 400, Post Office Drawer 11300, Tallahassee, Florida 32301 Randy Lazarus, Scooter City USA, LLC., 2650 W Fairbanks Avenue, Winter Park Florida 32789 Thomas Lynott, Classic Motorcycles and Sidecars, Inc., Post Office Box 969 Preston, Washington 98050
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Administrative Law Judge Jeff B. Clark, of the Division of Administrative Hearings, pursuant to non-compliance to the requirements set out in the Order to Show Cause-—for both parties to file responses no later than August 7, 2009 as to why this matter should not be closed based on lack of response to the Initial Order. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Galaxy Powersports, LLC d/b/a JCL International, LLC and Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746. DONE AND ORDERED this /7“ day of September, 2009, in Tallahassee, Leon County, Florida. L A. FORD, Direct Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this_/D#}) day of September, 2009. - Vinayak, Dealer Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAFivlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 James Sursely Action Orlando Motorsports 306 West Main Street Apopka, Florida 32712 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Jeff B. Clark Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by P. Michael Ruff, Administrative Law Judge of the Division of Administrative Hearings, pursuant to non-compliance to the requirements set out in the Order to Show Cause—for both parties to file responses no later than July 26, 2009 as to why this matter should not be closed based on lack of response to the Order of Pre-Hearing Instructions. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Galaxy Powersports, LLC d/b/a JCL International, LLC and Kitai Powersports, Inc. to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 228 North 3™ Street, Jacksonville, (Duval County), Florida 32250. DONE AND ORDERED this bu of August, 2009, in Tallahassee, Leon County, Florida. Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this day of August, 2009. i Vinayak, Dealer nat. Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vig Copies furnished: Leo Su . Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Jim Lee Road Power USA, LLC 927 North 3 Street Jacksonville Beach, Florida 32250 Claudio Biltoc Kitai Powersports, Inc. 143 Belmont Drive St. Johns, Florida 32259 Pete Biltoc Kitai Powersports, Inc. 13887 Sea Prairie Street Jacksonville, Florida 32216 Rustin Murray Kitai Powersports, Inc. 400 North Pimlico Street St. Augustine, Florida 32090 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 P. Michael Ruff Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Recommended Order of Dismissal by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Recommended Order of Dismissal as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and a license may be issued to Wild Hogs Scooters and Motorsports, LLC to sell motorcycles manufactured by Kaitong Motorcycle Manufacture Co. Ltd. (KAIT) at 3311 West Lake Mary Boulevard, Lake Mary (Seminole County), Florida 32746, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed September 30, 2009 3:29 PM Division of Administrative Hearings. DONE AND ORDERED this of September, 2009, in Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles ""-.r.• u this 9Pfh day of September, 2009. Naiini .Dulllr71cenie Admlnlltrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Leo Su Galaxy Powersports, LLC d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 2 Jason Rupp Wild Hogs Scooters and Motorsports, LLC 8181 Via Bonita Street Sanford, Florida 32771 David Cattafi David Cattafi d/b/a Direct Capital Motors 4107 South Orlando Drive, Suite C Sanford, Florida 32773 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 Lawrence P. Stevenson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 3
The Issue Whether El Sol Trading, Inc. (El Sol) should be permitted, over Respondent's protest, to establish an additional dealership for the sale of motorcycles manufactured by Jiangmen Qipai Motorcycle Co, Ltd. (QIPA Motorcycles) at 7000 Park Boulevard, Pinellas Park, Florida.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is an existing franchised dealer of QIPA Motorcycles. Its dealership is located at 6239 Park Boulevard, Pinellas Park, Florida. The driving distance between Respondent's dealership and the location of the new dealership El Sol proposes to establish at 7000 Park Boulevard, Pinellas Park, Florida, is roughly one mile.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Highway Safety and Motor Vehicles issue a Final Order denying El Sol approval to establish a new QIPA Motorcycle dealership at 7000 Park Boulevard, Pinellas Park, Florida. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010. COPIES FURNISHED: Julie L. Jones, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Steve Hume, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Gloria Ma El Sol Trading, Inc. d/b/a Motobravo, Inc. 19877 Quiroz Court City of Industry, California 91789 Lindsey Park Eco Green Machine, LLC 7000 Park Boulevard, Suite A Pinellas Park, Florida 33781 David Dubin Seminole Scooters, Inc. 6239 Park Boulevard Pinellas Park, Florida 33781
The Issue Whether the application of Peace Industry Group (Peace) and Bayside Auto Sales, Inc. (Bayside) to establish an additional franchised dealership for the sale of Astronautical Bashan motorcycles to be located at Bayside Auto Sales, 1301 Harrison Avenue, Panama City, Bay County, Florida, should be granted.
Findings Of Fact Petitioner Peace is a licensed distributor of motor vehicles in Florida and is authorized to sell motor vehicles to its dealers in Florida. Petitioner Bayside is a licensed motor vehicle dealer in Florida and is located at 1301 Harrison Avenue, Panama City, Florida. Respondent Moto is a licensed motor vehicle dealer in Florida and an existing Astronautical Bashan dealer located at 12202 Hutchison Blvd Suite 72, Panama City Beach, Florida. Currently, Moto sells the product line of Peace, including the Astronautical Bashan product line. Additionally, Moto has a franchise agreement with Peace. The agreement establishes a franchise territory with a 25-mile radius around Moto’s location. Petitioner Peace proposes to establish Bayside as a dealership for the sale of Astronautical Bashan motorcycles. The proposed dealership would be within six miles of Moto’s dealership. The two dealerships are located in Bay County and are separated by the Hathaway Bridge. Both draw customers from Bay County, with at least 20 percent of Moto’s customers located within 20 miles of Moto’s location. There was no consumer data or analysis of sales in the motorcycle industry offered into evidence. However, Moto’s franchise agreement with Peace establishes a market area of at least a 25-mile radius from Moto’s location. Bayside clearly is located within Moto’s market area. There was no evidence which demonstrated Peace’s market share in the motorcycle market. There was no evidence presented analyzing the motorcycle market in the Panama City area. Likewise, there was no evidence presented regarding anticipated growth in the market area. This type of evidence is generally presented by the distributor or manufacturer of the product. As indicated, Peace did not appear at the hearing. Given this lack of evidence, the market share for Peace or Astronautical Bashan motorcycles cannot be established. Moreover, a determination that the establishment of a second dealership in the Panama City territory is warranted must be based on the economic and marketing conditions pertinent to dealers competing in the territory. Given this lack of evidence, Petitioners failed to establish that Peace was underrepresented in the Panama City/Bay county area. Since there is no evidence to support the establishment of a second dealership, Petitioners’ application to establish such a dealership should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a final order denying the establishment of Peace's dealership at Bayside, 1301 Harrison Avenue, Panama City, Florida. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 13th day of February, 2009. COPIES FURNISHED: Michael James Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32344 Larry Bradberry Bayside Auto Sales, Inc. 1301 Harrison Avenue Panama City, Florida 32401 Wayne Wooten Moto Import Distributors, LLC 12202 Hutchison Boulevard, Suite 72 Panama City Beach, Florida 32407 Lily Ji Peace Industry Group, Inc. 6600-B Jimmy Carter Boulevard Norcross, Georgia 30071 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety And Motor Vehicles Neil Kirkman Building, Room B-439 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Robin Lotane, General Counsel Department of Highway Safety And Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-0500
The Issue The issue here presented concerns the attempted cancellation of the dealer franchise held by Ken's Kawasaki, Inc., petitioner, to sell Kawasaki motorcycles; specifically, Kawasaki Motors Corp, U.S.A., is taking action which would bring about the cancellation of Petitioner's motorcycle franchise. The alleged authority for considering the propriety of this action is as found in Section 320.641, Florida Statutes (1979).
Findings Of Fact The Petitioner, Ken's Kawasaki, lic., is a licensed-franchised Kawasaki motorcycle dealer in Gainesville, Alachua County, Florida. Its dealer license is as authorized by the State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles, and its franchise is as issued by the Respondent, Kawasaki Motors Corp, U.S.A. The dispute arises following action on January 31, 1980, when the Respondent sent a letter to the petitioner indicating that the Sales and Service Agreement (franchise) between the parties would be terminated effective April 30, 1980. The reason for this termination, as expressed in the correspondence directed to the Petitioner, was the belief held by the Respondent that the terms and conditions of the aforementioned Sales and Service Agreement, in particular paragraph 26, subsection 4, allowed for the termination or cancellation if there was a "discontinuance if the operation of dealer's business for a period of five (5) consecutive days unless such discontinuance is the result of a national disaster," which term was felt to have occurred. In response to this notification of cancellation, the Petitioner through one of its owners filed a verified complaint before the State of Florida, Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. This complaint was referred to the State of Florida, Division of Administrative Hearings, for consideration pursuant to Section 120.57(1), Florida Statutes, and the hearing was conducted on October 1 and 2, 1980, in Gainesville, Florida. (The procedural conduct of that hearing is as set forth in the transcript of the hearing.) The history of the Petitioner's franchise with Respondent began on February 3, 1978, with the acceptance by those parties of a Kawasaki 1978 Model Year Authorized Dealer's Sales and Service Agreement. This agreement terminated on September 30, 1978. This franchise was then extended to include the period December 31, 1981, in keeping with a Kawasaki Authorized Dealer's Sales and Service Agreement which was executed on January 29, 1979, and this is the agreement which was in effect at the time of the entry of the termination letter dated January 31, 1980. In the spring of 1979, Kenneth Meyers, a principal in the Petitioner's corporation, informed Jimmy Capps, who was the District Manager for the Respondent in the Georgia - and Florida area, that the Petitioner intended to sell Ken's Kawasaki, Inc., motorcycle business. In pursuit of its decision to sell, the petitioner listed its business with a number of real estate agencies in the Gainesville, Florida, area. Among those brokers was Sherwood Commercial Brokers and within that brokerage firm Walter E. Murphree, Jr., was a principal. In September, 1979, the brokerage firm referred George O. Hack to Meyers as a prospective purchaser of the Petitioner's motorcycle business. During the same month, on September 13, 1979, District Manager Capps visited the petitioner's business location to discuss with the Petitioner the fact that the dealership was "out of trust". ("Out of trust" means that the inventory of the dealership subject to a floor plan financing arrangement, has been sold without obtaining the title documents held as security for the floor plan financing and without accounting for the proceeds, and was therefore in violation of the financing arrangement.) In this instance, some of the motorcycles that had been financed by the Respondent through a floor plan had been sold "out of trust". Again in September, 1979, Meyers contacted Capps in Atlanta, Georgia, and indicated that George O. Hack, James W. Opp, and Walter E. Murphree, Jr., had shown an interest in acquiring the petitioner's business. This contact occurred subsequent to the entry between the Petitioner and Hack, Opp and Murphree as principals in Gainesville Motorcycle Corporation, Inc., into an arrangement referred to as a "Contract for Purchase and Sale of Assets" of the Petitioner corporation. None of the principals in Gainesville Motorcycle had held any position with the petitioner prior to this contract agreement. To effectuate the purpose of transferring the franchise from the petitioner to Gainesville Motorcycle Corporation, Inc., an arrangement was made by Hack to have a meeting with Capps to discuss the acceptance by the Respondent Gainesville Motorcycle Corporation, Inc., as franchisee of the Respondent. This meeting was held on October 22, 1979, in Gainesville, Florida. In the course of the meeting, a discussion was held on the requirements of the Respondent which must be met before the prospective franchisee would be accepted. This included the necessity to execute an application provided by the Respondent and the necessity to demonstrate the financial liquidity of Gainesville Motorcycle Corporation, Inc., in the person of its principals, by having them provide sound financial statements to the Respondent. One of the principals of Gainesville Motorcycle Corporation, Inc., Hack, owned and operated a Yamaha dealership in Gainesville, Florida, and this was a matter of which Capps either knew about prior to the meeting or learned of in the course of the meeting. In dealing with this subject as it related to the possibility that two motorcycle lines would be sold from one store, Capps made known that the acceptability of his circumstance would be dependent on the expectation by the Respondent that the Kawasaki line of product would be promoted on an equal basis with the existing Yamaha line. The idea of selling other manufacturers' motorcycles from the same store in which the Kawasaki product line was being offered is not foreign to the Respondent. The arrangement for the sale of two product lines from one store, to include the Kawasaki line, is acceptable, subject only to equal treatment in the promotion and sales of the Kawasaki product line when contrasted with that of the competing motorcycle product. Sometime in late October, 1979, Hack forwarded three financial statements for the principals Hack, Opp and Murphree to the Respondent in Atlanta, Georgia, together with an application for franchise in the name "Gainesvi1le Motorcycle Corporation". (This application of Gainesville Motorcycle Corporation was not presented as evidence in the hearing.) After receiving the material from the Gainesville Motorcycle Corporation and its principals, a decision was made by the Respondent not to approve their request for franchise and this decision was based upon the unacceptable financial position of those principals. The decision not to accept was communicated by letters addressed to those three principals, dated November 2, 1979. Subsequent to the receipt of the letters, Hack contacted the Respondent to ascertain if it was a possibility that other materials could be submitted in support of the application which would cause the Respondent to change its position on the franchise question. Hack was told that the Respondent would evaluate additional information if it was presented. On November 5, 1979, William A. Parsons, attorney representing the Petitioner, wrote to the Respondent to advise the Respondent that a closing on the pending sale of the Petitioner's business was scheduled for November 19, 1979, and in particular, requesting information from the Respondent. In response to Parsons's correspondence, the Respondent wrote to him on November 8, 1979, and advised Parsons that the sale of the franchise to Hack, Opp, Murphree or anyone in general had not been approved at that time. On November 8, 1979, another dealer visit was made by Capps to the petitioner's location. Further discussion was held between Capps and Meyers on the reason for disapproval of the Gainesville Motorcycle group's reguest for franchise, and Capps also determined in the course of that visit that some of the other floor plan financers of the petitioner, namely, ITT Diversified Credit, had removed one of the Petitioner's motorcycles and other items associated with the business; the effect of that action by ITT being to place the Petitioner in the position of no longer having available inventory in motorcycles to be sold. On November 17, 1979, the petitioner closed the doors to its Kawasaki motorcycle store for the purpose of taking inventory and had not reopened at the time of the hearing in this cause, October 1 and 2, 1980. At no time since the November 17, 1979, date has the Petitioner been engaged as a Kawasaki dealer. Notwithstanding the communication through the letter of November 8, 1979, from the Respondent to attorney Parsons indicating that the Hack, Opp, and Murphree group had not been approved as a Kawasaki franchise dealer, the parties to the purchase contract went to the closing scheduled for November 19, 1979, and on that date through a telephone call directed to officials within the Respondent corporation in Atlanta, Georgia, the parties to the closing were informed that the Hack group had not been approved as prospective franchisees to sell Kawasaki motorcycles, in substitution for the Petitioner corporation. In late November, 1979, Meyers contacted Gary Warren, who operated a Suzuki motorcycle dealership in Gainesville, Florida, to determine if Warren was interested in buying the petitioner's business. Warren thereafter determined to make an application to the Respondent to be granted the Kawasaki franchise for Gainesville, Florida, and agreed with Meyers that he would discuss the possibility of purchasing some of the merchandise items held by Ken's Kawasaki. On November 30, 1979, the Respondent forwarded the necessary material to Warren for Warren to make an application to be the Kawasaki franchise dealer. On December 1, 1979, Hack, Opp and Murphree entered into an arrangement with the Petitioner's landlord by which these parties agreed to lease, with the option to buy, those premises which were then occupied by the Petitioner, on the condition that the new group pay those arrearages in rent then owed by the Petitioner to the landlord. After reviewing Warren's application to become a Kawasaki dealer, Warren was informed that he had been approved. This approval was made known in late December, 1979. Also in late December, 1979, Hack informed Capps that the Yamaha dealership would be moved Petitioner's premises around Christmas of that year. Capps came to Gainesville on January 23, 1980, to enter into a mutual commitment agreement leading to the completion of arrangement s to establish Warren as the local Kawasaki dealer. (During that same trip, Capps went to the location of the Petitioner's dealership and discovered that the Yamaha dealership was in place at that location and there were no signs indicating that the Kawasaki dealership was still in operation at that locale. On that date, the mutual commitment agreement was executed and in provisions of that document was an agreement that Warren would buy his parts kit, accessory kit, and special tools from the Petitioner and that the dealership would operate as "Suzuki- Kawasaki of Gainesville". In pursuit of the agreement to purchase the parts kit, accessory kit and special tools from tie petitioner, discussion was held between Meyers and Warren. Prior to the discussion, Warren had been solicited by ITT Diversified Credit to buy certain products which they had removed from the Petitioner's business. In addition, the petitioner's landlord took Warren to a storage facility where some of the Petitioner's parts and accessories had been stored. Warren was concerned about the Petitioner's merchandise and for that reason asked Meyers to provide bills of sale and to conduct an inventory prior to any purchase by Warren. No bills of sale were forthcoming and Meyers having placed the value of the goods above their fair market value, Warren declined to purchase any of the items owned by the Petitioner in association with its Kawasaki dealership. After receipt of the January 31, 1980, letter or termination end prior to filing his protest to the the cancellation on April 26, 1980, meetings were held between Meyers and the principals of Gainesville Motorcycle Corporation on the subject of filing the protest and after discussion the decision was made to have Hack, on behalf of Gainesville Motorcycle Corporation, finance the protest with the expectation that the Gainesville Motorcycle Corporation would gain the award of the Kawasaki motorcycle franchise through the present action. It is not the intention of Kenneth Meyers to continue to operate the Kawasaki motorcycle business in keeping with his existing franchise issued by the Respondent and Meyers, in making this statement, is authorized to speak for the Petitioner. At present, Kawasaki motorcycles are not being sold from any Kawasaki dealership located in Gainesville, Florida, and this has been the case since November 17, 1979. This lack of sales has not been the result of the Respondent failing to deliver products to the Petitioner. There was no showing in the course of the hearing that the Respondent failed to fairly evaluate the applications of Gainesville Motorcycle Corporation and Gary Warren, prior to determining to accept Warren as the replacement dealer for the Petitioner.
Recommendation Based upon the full consideration of the facts found therein and the Conclusions of Law reached it is RECOMMENDED that the Petitioner, Ken's Kawaski, Inc.'s complaint for unfair cancellation of its dealer franchise agreement be DISMISSED and the cancellation of the Petitioner's franchise agreement with Respondent, Kawasaki Motors Corp, U.S.A., be UPHELD. 1/ DONE AND ENTERED this 3rd day of November 1980, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980.
Conclusions This matter came on for determination by the Department upon submission of an Order Closing File by P. Michael Ruff, an Administrative Law Judge, of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. ORDERED that this case is CLOSED and no license will be issued to Flyscooter, LLC and Sunstate Powersports, LLC to sell motorcycles manufactured by Taizhou Zhongneng Motorcycle Co. Ltd. (ZHNG) at 825 Mason Avenue, Daytona Beach (Volusia County), Florida 32117. DONE AND ORDERED this 4, of June, 2009, in Tallahassee, Leon County, Florida. L A. FORD, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division ofPiotor Vehicles this — day of June, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Siegfried Kientoff Sunstate Powersports, LLC 825 Mason Avenue Daytona Beach, Florida 32117 David Levison Mega Powersports Corp. 390 North Beach Street Daytona Beach, Florida 32114 Daniel Pak Flyscooters, Inc. 7307 Edgewater Drive, Building H Oakland, California 94621 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 P. Michael Ruff Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602
