CURTIS A. GOLDEN, STATE ATTORNEY ) FOR THE FIRST JUDICIAL CIRCUIT, )
vs. ) CASE NO. 83-2779
Respondent. )
This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 8, 1983. Wayne Hickey appeared on his own behalf. The petitioner was represented by counsel:
William P. White, Jr., Esquire Assistant State Attorney
By complaint issued August 29, 1983, petitioner alleged that respondents do business in Pensacola, and in a single judicial circuit, and that:
Respondents engage in the business of repairing automobiles and rebuilding automobile engines. Respondents fail or refuse to properly perform the work contracted for. Respondents fail or refuse to honor express or implied warranties applicable to their work or to make appropriate refunds.
The complaint alleges that these practices "violate the law and public policy of the United States and the State of Florida as established by Section(s) [sic] 501.204, Florida Statutes, common law and/or case law," and that they "constitute unfair and/or deceptive trade practices" in that they are unlawful, "unethical, immoral or unscrupulous . . . and . . . have damaged consumers, competitors or other businessmen," all in violation of Part II, Chapter 501, Florida Statutes.
Petitioner filed a proposed recommended order and respondent also made a posthearing submission. The parties' proposed fact findings have been duly considered in preparation of the following findings of fact. Proposed findings have been adopted, in substance, except where they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Some time after February 19, 1983, and before March 23, 1983, Wayne W. Hickey opened for business as an auto mechanic under the name Auto Tech at 2350 Fernwood Drive in Pensacola, Florida. He was employed by, but had no ownership interest in the auto repair business known as Motor Exchange that occupied the premises before him. After he had opened his own business, he undertook employment for Lloyd Linville, a principal of Motor Exchange, who asked him to repair a car that belonged to David H. Weinstein which Motor Exchange had been unable to repair. Mr. Hickey could not fix the engine knock, either, and was never paid for his work. While the car was in Mr. Hickey's custody, vandals did
$700 damage to it. Mr. Hickey refused to repair this damage or pay Mr. Weinstein money to have it done elsewhere.
On February of 1983, while still employed by Motor Exchange, Mr. Hickey signed a warranty on behalf of Motor Exchange covering an engine rebuilt for Jose L. Rodriguez. A week later Mr. Rodriguez discovered that the cam and the lifters were bad, and brought this to Mr. Hickey's attention. Mr. Hickey referred Mr. Rodriguez to Motor Exchange at their new location. The last time that Mr. Rodriguez and Mr. Hickey spoke before the hearing in this cause, Mr. Rodriguez told Mr. Hickey that all was well. At hearing for the first time, Mr. Hickey learned that other problems had developed with the engine since.
After she got her income tax refund, Anita Diane Frye took her 1974 Chevrolet to Auto Tech on February 28, 1983. She considers the car hers even though it is registered in her boyfriend's name. He signed the work order authorizing respondent to rebuild the engine. Auto Tech worked on the engine and gave a "1 year or 15,000 mile warranty on engine against defective parts & workmanship accessories excluded." Petitioner's Exhibit No. 5. When Mr. Hickey returned the car after working on the engine, he told Ms. Frye, "You better buy a new set of back tires," because it would go so fast, he claimed. In fact, the car smoked from the time they got it back from Mr. Hickey and he was unable to correct the problem when they took it back for lifters to be installed or when they took it back the second time. The third time they took it back they found the shop closed and no indication of how to get in touch with Mr. Hickey. At the time of the hearing, the car had been driven less than 3,000 miles since the engine had been rebuilt, but the engine spat and sputtered and the car could not be driven faster than 20 or 30 miles per hour: "You sit in a cloud of smoke whenever you stop."
After James Clyde Odom heard respondent's radio advertisement, he brought his 1974 Dodge truck to Auto Tech on May 3, 1983, to have the engine rebuilt. Mr. Hickey told him he would rebuild the engine "from the ground up" and guarantee his work. As agreed, Mr. Odom returned for the truck on May 7, 1983, paid Mr. Hickey $644.09 and received a written "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Mr. Odom had driven the truck approximately three miles when his wife, who was following in another car, honked her horn. Steam was rising from the engine. They turned around and went back to the garage where Mr. Hickey supplied a bolt that had been left out of the water pump housing.
The Odoms set out again and made it all the way to Mrs. Odom's father's house, where they noticed oil leaking. They determined that a quart and a half had been lost. They took the truck back to the Auto Tech shop again and left a note describing the problem. A week later Mr. Odom picked his truck up from Auto Tech a third time and drove it about two and a half miles to a friend's house, where oil leaked from the truck again and formed a puddle in the friend's driveway. This time when Mr. Odom returned, Mr. Hickey said he could not work on it right away, that Mr. Odom would have to bring it back at Mr. Hickey's convenience, and he refused Mr. Odom's proposal that another mechanic he asked to repair the engine with the bill being sent to Mr. Hickey. The compression in the truck's engine ranged from 107 or 114 pounds in one cylinder to 160 pounds in another.
Mr. Hickey also undertook to repair the brakes on the Odom truck, and was paid for this job. He did not turn the drums or replace the brake cylinders although he did install new brake shoes. The brakes did not hold after the work was done.
On May 27, 1983, Ishmael White took a 1974 Dodge engine to Hickey for rebuilding. The job was to include "rings, mains, rod bearings, timing gear, timing chain, lifters, push rods, oil pumps, all new gaskets, complete valve job and" cam bearings. Petitioner's Exhibit No. 7. On June 1, 1983, Mr. White paid Mr. Hickey $624.75 for this work and he picked the engine up the next day. The head bolt had not been replaced. On June 10, 1983, the engine was reinstalled in Mr. White's pick-up truck. It made the whole truck vibrate. When Mr. White took it to be tuned, the mechanic said he could not tune it because the valves were not closing. When Mr. White reported this to Mr. Hickey, Mr. Hickey said he would not be able to work on the engine until June 15, 1983. On June 15, 1983, Mr. White left the truck with Mr. Hickey and returned to pick it up on June 21, 1983, as they had agreed. The truck was not ready then, so Mr. White inquired again on June 23, 1983. At that time Mr. Hickey told him that the water pump leaked and would cost $70 to replace, but Mr. White refused to buy a water pump from Mr. Hickey since a new one had been installed less than three months before he took the engine to Auto Tech. On July 12, 1983, Mr. Hickey told Mr. White that everything had been fixed except the water pump and that if he towed the truck away without buying another water pump the warranty was "no good." The warranty Mr. Hickey had earlier given Mr. White was a "1 year or 15,000 mile warranty on engine against defective parts & workmanship. Accessories excluded." Petitioner's Exhibit No. 7. Mr. White took the truck nevertheless. Bolts were loose. A brand new air filter was wet. Four of the eight cylinders had little or no compression and the engine ran so rough the hood shook, but the water pump was not leaking. Mr. White took the truck elsewhere to be repaired at his expense.
On April 2, 1983, James Fisher took his Ford pick-up to Mr. Hickey and Auto Tech and asked that a rebuilt 400 cubic inch engine be substituted for the
351 cubic inch engine it had at the time and that its C-4 transmission be replaced with a C-6. The Fishers retrieved their truck on April 14, 1983, and drove it home. The next day they set out on a camping trip. They had driven 20 miles when the engine "blew up." Smoke came back into the cab and billowed out from under the hood. Employees of Mr. Hickey came for the truck. On April 25, 1983, the Fishers left Auto Tech in the Ford truck a second time. The engine ran rough, the transmission "growled," and they spotted a stream of transmission fluid, so they turned around before they had gone a mile and drove the truck back to Auto Tech. On April 29, 1983, Mr. Hickey said everything was fine and the Fishers set out again. The transmission was better, but the engine was worse, and the car broke down near their son's place of business, a block or so
from Auto Tech. The truck was taken back to the Auto Tech garage. Again on May 6, 1983, the Fishers set out in the truck and got all the way to Pace, Florida, this time, notwithstanding problems with the transmission. A mechanic in Pace discovered worn valve guides, worn rings and worn bearings; and that only one bolt attached the engine to the frame; and that the drive shaft had been jammed in without being properly fitted. The Fishers were unable to find Mr. Hickey after he closed down his Auto Tech shop.
Without objection, the following affidavit was received in evidence at hearing:
I Took The Engine To Wayne Hickey at Auto TECH to be Rebuilt. He was To Rebuild The Engine For $395.00 Plus Taxes, I Paind Him by check
$414.75 I took The Engine Home and Installed
it in The Car.The engine was Smokeing Real bad. I went back to Wayne Hickey with The Car and he informed me That The Engine Should be Ran For up To 500 miles If IT didn't stop smokeing & useing oil To bring it back. The Engine Froze up. I Towed The car back to AUTO TECH. Wayne Hickey said he would Need to Keep The Car for 3-4 days. My daughter called after 7 days and they haden't Touched The car. They Said to Call back ON The 16 July 83. My daughter Called back on The 16 July 83 and could get no anser, I called back on The 19th & the Recording Said The Phone was Temperoley out of order, I came over here to Auto TECH and talked to Wayne Hickey, 7-28-83. He had not done anything to the Engine, I ask him To give me my Money back and I would get The Engine Fixed Myself. He stated For me to Take The car Home, Take the Engin back out and
bring the Engine back To him and He would Fix IT, he didn't say anything about Removeing The Engine when He Told me To bring The car back to Him,
A Mr. Watha L. Clayton wrote out the foregoing statement on a form furnished by petitioner's office. The form affidavit was notarized July 28, 1983.
CONCLUSIONS OF LAW
Under the Florida Deceptive and Unfair Trade Practices Act, Sections
501.201 et seq., Florida Statutes (1981), an "enforcing authority" is authorized to bring an action "to obtain a declaratory judgment that an act or practice violates [Chapter 501, Part II, Florida Statutes (1981)]," Section 501.207(1)(a), Florida Statutes (1981), or an "action on behalf of one or more consumers for . . . damages . . ." Section 501.207(1)(c), Florida Statutes (1981). Before instituting judicial proceedings for declaratory judgment or for damages, however, "the enforcing authority shall, pursuant to an administrative hearing, determine that there is probable cause to bring the action." Section 501.207(2), Florida Statutes (1981).
The "enforcing authority" is the Department of Legal Affairs when a violation "occurs in or affects more than one judicial circuit or if the Office
of State Attorney fails to act upon a violation within 90 days after a written complaint has been filed with the State Attorney." Section 501.203(4), Florida Statutes (1981). Where the violation occurs solely within or affects only a single judicial circuit, as here, the Office of the State Attorney is the "enforcing authority," whether the complaint is filed directly with the Office of the State Attorney or whether it is referred by the Department of Legal Affairs.
On the merits, the question is whether there has been "adequate proof of probable cause for the institution of a civil suit." Kasha v. Department of Legal Affairs, 375 So.2d 43, 44 (Fla. 3d DCA 1979). The quantum of proof is less than a preponderance of the evidence. Id. There must be a showing only that there is reason to believe that respondents have been guilty of "unfair or deceptive acts or practices." Section 401.204(1), Florida Statutes (1981). This language has been held not to apply to real estate transactions, State ex rel. Herring v. Murdock, 345 So.2d 759 (Fla. 4th DCA 1977), and certain
provisions have been limited to "consumer transactions." Black v. Department of Legal Affairs, 353 So.2d655 (Fla. 2nd DCA 1977). Neither of these limitations pertain here.
In construing the language "unfair or deceptive acts or practices," due consideration and great weight shall be
given to the interpretations of the Federal
Trade Commission and the federal courts relating to s. 5(1)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.
Section 501.204(2), Florida Statutes (1981).
The United States Supreme Court quoted with approval the following formulation by the Federal Trade Commission:
whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise--whether, in other words, it is within at least the penumbra of some
common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed Reg 8355 (1964).
FTC v. Sperry & Hutchinson Co., 405 v. S. 233,
244 n. 5 (1972). (quotation marks omitted)
The Department of Legal Affairs has adopted rules which specifically address repairs of automobiles. Rule 2-19.03, Florida Administrative Code, provides:
It shall be an unfair or deceptive act or practice for a motor vehicle repair shop to:
Accept a customer's motor vehicle for a repair and not honor his agreement with a customer to repair the customer's motor
vehicle as represented in the written estimate.
Refuse to make, with due dilligence, a bona fide attempt to perform any necessary corrections or additional repairs without extra charge to conform the repair work to any guarantee or warranty or other agreement as stated on the written repair estimate and invoice.
Rule 2-19.04, Florida Administrative Code, provides, in pertinent part:
It shall be an unfair or deceptive act or practice for a motor vehicle repair shop to:
* * *
Represent that repairs have been made when such is not a fact;
Represent that certain parts and repairs are necessary to repair the vehicle when such is not a fact;
Represent that the vehicle being inspected or diagnosed is in a dangerous condition or
that the customer's continued use of the vehicle may be harmful to him or cause great damage to the vehicle when such is not a fact;
Fraudulently alter or misuse any customer's credit card, contract, estimate, invoice or other document;
Make or authorize in any manner or by any means whatever any statement written or oral which is deceptive or misleading, and which is known, or which by the exercise of reasonable care should be known to be deceptive or misleading;
Make any departure from or disregard accepted trade standards for good and workmanlike repair in any material respect;
Make false promises of a character likely to influence, persuade, or induce a customer
to authorize the repair, service or maintenance of a motor vehicle;
Perform any other act which constitutes fraud or misrepresentation;
Substitute, without notice to the motor vehicle owner, and his insurer if the cost of repair is to be paid pursuant to an insurance policy and the identity of the insurer or its claims adjustor is disclosed to the repair facility, used parts, rebuilt parts, salvaged parts or straightened parts for new
replacement parts. Such notice may be given prior to the commencement of repair work by notation on the written repair estimate, or may follow the completion of repair work and be disclosed on the invoice.
Respondents are or were a motor vehicle repair shop within the meaning of the rules. Rule 2-19.01(2), Florida Administrative Code.
The evidence established probable cause to believe Wayne H. Hickey, doing business as Auto Tech, has been guilty of various and sundry unfair and deceptive trade practices, as to his transactions with Ms. Frye and Messrs. Odom, White, Fisher and Clayton.
That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981).
DONE and ENTERED this 2d day of December, 1983, in Tallahassee, Florida.
ROBERT T. BENTON II
Filed with the Clerk of the Division of Administrative Hearings this 2d day of December, 1983.
William P. White, Jr., Esquire Assistant State Attorney
Curtis A. Golden, State Attorney
