Conclusions This matter came on for determination by the Department upon submission of an Order Closing File by Daniel M. Kilbride, 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 Sunl Group, Inc. ‘and Action Motorsports to sell motorcycles manufactured by Astronautical Bashan Motorcycle Manufacture Co. Ltd. (BASH) at 11485 South Cleveland Avenue, Suite 1, Fort Myers (Lee County), Florida 33907. DONE AND ORDERED this a — day of July, 2009, in Tallahassee, Leon County, Florida. 'ARL A. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division otor Vehicles this ZB day of July, 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: Kyle Lee Ride Green, Inc. 5686 Youngquist Road #113 Fort Myers, Florida 33912 Mei Zhou Sunl Group, Inc. ~ 8551 Ester Boulevard Irving, Texas 75063 Howard Chappell, Esquire Law Offices of Howard Chappell 1514 Cumberland Court Fort Myers, Florida 33919 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles ; Neil Kirkman Building, Rm. A-432 Tallahassee, Florida 32399-0504 Daniel M. Kilbride 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 DIVISION OF ADMINISTRATIVE HEARINGS SUNL GROUP, INC., AND ACTION MOTORSPORTS, Petitioners, RIDE GREEN, INC., ) ) ) ) ) vs. ) Case No. 08-5720 ) ) ) Respondent. ) )
The Issue The issue is whether Petitioner's applications to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN), should be granted. PRELIMANARY STATEMENT In the Florida Administrative Weekly, Volume 34, Number 21, May 23, 2008, the Department of Highway Safety and Motor Vehicles (DHSMV) published two Notices of Publication for a New Point Franchise Motor Vehicle Dealer in a County of Less than 300,000 Population. Said notices advised that Petitioner Gator Moto, LLC and Gator Moto, LLC (Petitioner) intended to establish new dealerships for the sale of motorcycles manufactured by Shanghai Motorcycle Co., Ltd. (JMSTAR), and Shanghai Shenke Motorcycle Co., Ltd. (SHEN). On or about June 3, 2008, Respondent Austin Global Enterprises, LLC, d/b/a New Scooters 4 Less (Respondent) filed two complaints with DHSMV about the proposed new motorcycle dealerships. DHSMV referred both complaints to the Division of Administrative Hearings on June 10, 2008. On July 2, 2008, Respondent filed its Compliance with Initial Order. On July 7, 2008, Petitioner filed Petitioner's Compliance with Initial Order Division of Administrative Hearings (DOAH) Case Nos. 08-2735 and 08-2736. This is the only communication that DOAH has received from Petitioner. On July 23, 2008, Administrative Law Judge Barbara J. Staros entered an Order of Consolidation for DOAH Case Nos. 08-2735 and 08-2736. On July 24, 2008, Judge Staros issued a Notice of Hearing, scheduling a final hearing on December 4, 2008. On November 26, 2008, Respondent filed its Compliance with Pre-hearing Instructions. Petitioner did not respond to the Order of Pre-hearing Instructions. On December 1, 2008, Judge Staros issued an Amended Notice of Hearing. The amended notice only changed the commencement time for the hearing. DOAH subsequently transferred these consolidated cases to the undersigned. On the morning of the December 4, 2008, hearing, DHSMV advised the undersigned's office that DHSMV had failed to arrange for the appearance of a court reporter at the hearing. Accordingly, the undersigned issued an Order Granting Continuance and requiring the parties to confer and provide DOAH with mutually-agreeable dates for re-scheduling the hearing. On December 17, 2008, Respondent filed its unilateral Compliance with Order Granting Continuance. Respondent filed this pleading after an unsuccessful attempt to confer with Petitioner. On December 18, 2008, the undersigned issued a Notice of Hearing and Order of Pre-hearing Instruction. The notice scheduled the hearing for February 9, 2008. On February 3, 2007, Respondent filed its unilateral Compliance with Order of Pre-hearing Instructions. Petitioner did not file a response to the Order of Pre-hearing Instructions. When the hearing commenced, Petitioner did not make an appearance. Respondent made an appearance and presented the testimony of Colin Austin, Respondent's Managing Member. Respondent did not offer any exhibits. The hearing transcript was not filed with DOAH. Neither party filed proposed findings of fact and conclusions of law.
Findings Of Fact Respondent has standing to protest Petitioner's applications pursuant to Section 320.642(3)(a)2., Florida Statutes (2008). According to DHSMV's published notice, Petitioner intended to establish two new motorcycle dealerships at 2106 Northwest 67th Place, Suite 15, Gainesville, Florida, on or after May 9, 2008. This location is only 4.5 miles from Respondent's place of business. At some point in time, Petitioner relocated its business to 7065 Northwest 22nd Street, Suite A, Gainesville, Florida. This location is only 5.3 miles from Respondent's place of business. Petitioner's application indicated that Petitioner intended to establish itself as a dealer of SHEN and JMSTAR motorcycles. Currently, Respondent sells those motorcycles under License No. VF/1020597/1. Respondent currently supplies itself with SHEN and JMSTAR products from a United States distributor. Respondent has a good faith belief that Petitioner intends to import the motorcycles and related products directly from the Chinese manufacturers. In that case, Petitioner would be able to sell the products at a lower price than Respondent and thereby deny Respondent the opportunity for reasonable growth. Petitioner did not notify DOAH about a change of address. DOAH's notices and orders directed to Petitioner at its address of record have not been returned. Petitioner has not communicated with DOAH since filing a response to the Initial Order. Petitioner did not make an appearance at the hearing. Apparently, Petitioner has abandoned its applications to establish the new dealerships.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioner's applications. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 16th 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 Collin Austin Austin Global Enterprise, LLC 118 Northwest 14th Avenue, Suite D Gainesville, Florida 32601 Justin Jackrel Gator Moto, LLC 4337 Northwest 35th Terrace Gainesville, Florida 32605 Justin Jackrel Gator Moto, LLC 2106 Northwest 67th Place, Suite 15 Gainesville, Florida 32653 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
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Lawrence P. Stevenson, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’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 that this case is CLOSED and no license will be issued to Moto Dealer Import, LLC and Fiber Unlimited, Inc. d/b/a Eco Sports, LLC to sell motorcycles manufactured by Benzhou Vehicle Industry Group Co. Ltd. (SHWID at 207 North Goldenrod Road, #200, Orlando (Orange County), Florida 32807. DONE AND ORDERED this LA day of June, 2009, in Tallahassee, Leon County, Florida. RL 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 Afotor 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. Copies furnished: Jack Lin Moto Dealer Import, LLC 4998-B South Royal Atlanta Drive Tucker, Georgia 30084 Silva Michaela Fiber Unlimited, Inc. d/b/a Eco Sports, LLC 7526 Narcoosse Road Orlando, Florida 32822 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 Jun 3 2009 9:15 Fax: Jun 3 2009 08:41am P001/002 Moto Dealer Import LLC 4200-8 South Royal Atlanta Dr, Tucker, GA 20064 TEL: (878)937-5690 FAX: {6752374605 June 2, 2009 Case # 09-2574 To Whom It May Concern: Moto Dealer Import LLC no longer wants Fiber Unlimited, Inc. d/b/a Eco Sports, LLC to be our dealer in Florida. MDI does not want to have a hearing or take any further action in the case. If you need any additional information or have any questions I can be contacted at 678-937-1690, Thank you, pips Copies furnished: Jack Lin Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kitkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Jude A. Mitchel! Jude A. Mitchell, d/b/a Jude's Cycle Service Post Office Box 585574 Orlando, Florida 32858 Silva Michaela Fiber Unlimited, Inc. d/b/a Eco Sports, LLC 7526 Narcoosse Road Orlando, Florida 32822 Tiffany Stephens Zora Neal Hurston Building 400 West Robinson Street, Suite N1 14 Orlando, Florida 32801
The Issue The issue is whether Petitioners’ application to establish a new dealership for the sale of motorcycles manufactured by Herchee Industrial Co., Ltd. (HERH), at 203 Northeast Avenue, Gainesville, Florida 32609, should be granted.
Findings Of Fact While the dealership agreement between Petitioner Adly Moto (Adly) and Respondent is not in evidence, the weight of the evidence established that Respondent is an existing franchised dealer for Petitioner Adly. According to DHSMV's published notice, Petitioner Adly intended to establish a new motorcycle dealership, Scooter Superstore, at 203 Northeast 39th Avenue, Gainesville, Florida, on or after July 16, 2008. There is no real dispute that this location is only 3 to 4 miles from Respondent's place of business. Therefore, Respondent has standing to protest Petitioner’s application pursuant to Section 320.642(3)(a)2., Florida Statutes (2008). Respondent’s license number is not in evidence. According to DHSMV’s published notice, Adly intended to establish Scooter Superstore as a dealer for the sale of HERH motorcycles. Currently, Respondent sells Adly motorcycles. The only evidence of record that HERH manufactures Adly products is an announcement dated April 2008 which states that “Her Chee Industrial/ADLY Moto LLC (USA) is proudly introducing Hammerhead Off-Road as our scooter distribution partner in the US.” It is therefore presumed that HERH manufactures Adly products. According to the evidence presented, Respondent has sold primarily scooters of 50 cubic centimeters or less. Respondent insists that he has ordered vehicles over 50 cubic centimeters from the distributor, but that the distributor has refused to ship these vehicles to him. There is evidence that at least three such vehicles were ordered by Solano Cycle, Inc., but the evidence is inconclusive as to whether or not these vehicles were to be offered for sale at the Gainesville location which is the subject of this controversy, or at another Solano Cycle location in another city. However, the evidence is insufficient to establish conclusively as to whether or not Adly vehicles larger than 50 cubic centimeters have been sold by Respondent.1 The market in Gainesville, Florida, comprises primarily college students and professors. According to Martin Solano, president of Respondent, the market in Gainesville is primarily scooters of 50 cubic centimeters or less. Other than anecdotal observations, no competent substantial evidence was presented as to the Gainesville market. There is no evidence establishing an objective, reasonable standard against which to compare the actual market penetration achieved by the existing dealer. Respondent moved to a larger location because the earlier location was very small and, therefore, could not hold a lot of stock. There is no evidence as to Respondent’s profits, capitalization, or financial resources to compete with the proposed new dealership. No market penetration data, whether inter-brand or intra-brand, is in evidence. Since an objective reasonable standard was not established, the actual penetration achieved against the expected standard cannot be established.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioners’ application. DONE AND ENTERED this 20th day of August, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 20th day of August, 2009.
The Issue Whether the application of Snyder Computer Systems, Inc., d/b/a Wildfire Motors and PC Scooter and Cycle, L.L.C., to establish an additional franchised dealership for the sale of Zhejiang Summit Huawin Motorcycle Co. Ltd. (POPC) motorcycles to be located at 3401 East Business Highway 98, Panama City, Bay County, Florida 32401, should be granted.
Findings Of Fact Respondent is a licensed motor vehicle dealer in Florida and an existing POPC dealer located at 12202 Hutchison Boulevard, Suite 72, Panama City Beach, Florida 32407. There was no evidence which demonstrated Petitioners’ 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, Petitioners did not appear at the hearing. Given this lack of evidence, the market share for Petitioners’ motorcycles cannot be established. Mr. Wooten, Respondent’s CEO, established that Petitioners’ proposed location is within 25 miles of Respondent’s current location. Respondent has the ability to adequately serve the needs of the population of Bay County, including Panama City and Panama City Beach through its sales and service of the POPC motorcycles. In the current economy, the entry of Petitioners into the POPC marketplace would have a significant negative financial impact on Respondent’s ability to maintain its sales, service, and customer base. Respondent has expended significant sums on advertising, both in print and online, and could not afford to continue to advertise the POPC line if Petitioners’ application were approved. Respondent already works seven days a week to maintain his market share, and would suffer significant financial losses if Petitioners’ application were approved. Respondent provides low prices for the products it sells and would be forced out of business if Petitioners’ application were approved. Petitioners seek to sell the identical motorcycles sold by Respondent, and the Bay County market is not sufficiently large to support a new entrant. If Petitioners’ application is approved, Respondent will be forced to close its business in Panama City Beach. Respondent is in good standing with the distributors of the products it sells. Respondent’s license with the State of Florida is active and in good standing. There are no barriers to access for customers seeking to purchase the products offered by Respondent. Respondent’s location is centrally located for customers in Bay County, including Panama City and Panama City Beach.
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 Petitioners’ dealership at 3401 East Business Highway 98, Panama City, Florida. DONE AND ENTERED this 6th day of July, 2009, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 6th day of July, 2009. COPIES FURNISHED: Jennifer Clark Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-308 2900 Apalachee Parkway Tallahassee, Florida 32399-0635 Donald Watts PC Scooter & Cycle, LLC 1903 Brown Avenue Panama City, Florida 32405 Dan Vogel Snyder Computer Systems, Inc., d/b/a Wildfire Motors 11 Technology Way Steubenville, Ohio 43952 Barry Wayne Wooten Moto Import Distributors, LLC 12202 Hutchison Boulevard, Suite 72 Panama City Beach, Florida 32407 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 32399-0635 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 is whether Petitioners should be allowed to establish a new point dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co., Ltd. (ZHNG), in Jacksonville, Florida.
Findings Of Fact On October 10, 2008, the Department of Highway Safety and Motor Vehicles (Department) published a notice in the Florida Administrative Weekly. The notice advised that Galaxy Powersports, LLC d/b/a JCL International, LLC, intends to allow the establishment of Putnam City Motors, d/b/a PC Motors, as a dealership for the sale of motorcycles manufactured by Taizhou Zhongneng Motorcycle Co., Ltd. (ZHNG) at 7033 Beach Boulevard, Jacksonville, Duval County, Florida, on or after September 29, 2008. By letter received by the Department on October 31, 2008, Respondent, Roadpower USA LLC, opposed the establishment of the dealership selling the same products as Roadpower USA, LLC, within 11 miles from its established dealership. On November 14, 2008, the Department referred this matter to the Division of Administrative Hearings to conduct an evidentiary hearing. By Initial Order entered November 14, 2008, Petitioners and Respondent were required to provide certain information for the scheduling of the final hearing in this cause. None of the parties responded to the Initial Order. A Notice of Hearing by Video Teleconference was entered on December 12, 2008, scheduling this case for final hearing on May 7, 2009, at 1:00 p.m. An Order of Pre-hearing Instructions was entered that same date, which required the parties to exchange witness lists and copies of exhibits no later than seven days prior to the final hearing. Copies of the witness lists were also required to be filed with the Division of Administrative Hearings. No witness lists have been filed. At 1:00 p.m. on May 7, 2009, the final hearing was convened. The only persons present were the court reporter, who was at the Jacksonville site, and the undersigned, who was at the Tallahassee site. The undersigned waited until approximately 1:25 p.m., but neither the Petitioners nor the Respondent appeared for the final hearing. The hearing was adjourned at approximately 1:30 p.m. No one on behalf of Petitioners or Respondent contacted the undersigned’s office with any explanation of their non-appearance before the hearing was adjourned, or thereafter.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is ORDERED: That the Department of Highway Safety and Motor Vehicles enter a final order denying Petitioners’ application for the new point dealership at issue in this case. DONE AND ENTERED this 19th day of May, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 19th day of May, 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 Leo Su Galaxy Powersports, LLC, d/b/a JCL International, LLC 2667 Northhaven Road Dallas, Texas 75229 Pete Biltoc Claudio Biltoc Putnam City Motors, Inc. 7033 Beach Boulevard Jacksonville, Florida 32216 Jim Lee Road Power USA, LLC 927 North 3rd Street Jacksonville Beach, Florida 32250
The Issue The issue is whether Petitioners are entitled to a proposed motor vehicle dealership in Seminole County, Florida.
Findings Of Fact DOAH provided the parties with adequate notice of the final hearing. On December 11, 2008, DOAH mailed a Notice of Hearing to each of the parties, scheduling the final hearing for April 6, 2009. No Notice was returned as undelivered. No party objected to a final hearing on April 6, 2009. On December 11, 2008, DOAH also issued an Order of Pre- hearing Instructions that, in relevant part, required the parties to file a pre-hearing stipulation which was to include a list of witnesses and exhibits to be called and submitted at the final hearing. No party complied with the Order. The documents forwarded to DOAH by the Department support the findings. The Notice of Publication for a New Point Franchise Motor Vehicle Dealer in a County of More than 300,000 Population was published in the Florida Administrative Weekly, Volume 34, Number 43, on October 24, 2008. On behalf of Respondent, Mr. James Sursely timely filed a protest letter dated November 7, 2008, with Ms. Nalini Vinayak, the administrator at the Department responsible for receiving such protests. The remaining facts are undisputed in this proceeding. The proposed new point franchise motor vehicle dealer is for a line-make identified in the record as Chunfeng Holding Group Co. Ltd. (CFHG) motorcycles. The proposed location is in Seminole County, Florida. Seminole County has a population in excess of 300,000. The proposed new point franchise motor vehicle dealer is located at 3311 West Lake Mary Boulevard, Lake Mary, Florida. Respondent owns and operates an existing CFHG dealership that is located at 306 West Main Street, Apopka, Orange, County, Florida, 32712. The proposed dealership is within a 12.5-mile radius of Respondent's dealership. Respondent has standing to protest the establishment of the proposed dealership. The petitioners submitted no evidence that Respondent is "not providing adequate representation" of the same line-make motor vehicles in the community or territory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying the establishment of the proposed franchise dealership. DONE AND ENTERED this 21st day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of April, 2009.
