STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNETTE DISPENNETTE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0755

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 29, 1994, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Feldman, Esquire

Berman & Feldman

2424 Northeast 22nd Street

Pompano Beach, Florida 33062-3099

For Respondent: Barbara Edwards, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

Whether Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be denied on the ground that the request was not timely filed with the Department of Agriculture and Consumer Services, Division of Consumer Services (hereinafter referred to as the "Department")?

PRELIMINARY STATEMENT

By letter dated December 30, 1993, the Department notified Petitioner of its intention to deny her request for arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, on the ground that the request was "not submitted in a timely manner." Thereafter, through counsel, Petitioner requested a formal administrative hearing on the propriety of the Department's proposed action. On February 8, 1994, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.

The hearing was held on March 29, 1994. At the outset of the hearing, the parties recited, on the record, those stipulations into which they had entered. Petitioner was the only witness to testify at the hearing. In addition to her testimony, a total of six exhibits (Petitioner's Exhibits 1 through 4 and Respondent's Exhibits 1 through 2) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on March 29, 1994, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than April 29, 1994. Petitioner and the Department timely filed proposed recommended orders on April 21, 1994, and April 22, 1994, respectively. The parties' proposed recommended orders contain, what are labelled as, proposed "findings of fact" and "conclusions of law." These proposed "findings of fact" and "conclusions of law" have been carefully considered by the Hearing Officer. The proposed "findings of fact" are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, the factual stipulations into which the parties have entered, and the record as a whole, the following Findings of Fact are made:

1. Petitioner purchased the motor vehicle that is the subject of the instant controversy, a 1991 Mitsubishi Eclipse, on May 23, 1991, from King Mitsubishi, a Mitsubishi dealership located in Lighthouse Point, Florida (hereinafter referred to as the "Dealership").

   
   

2. Various problems developed with the vehicle which Petitioner reported to the Dealership, but the Dealership was unable to rectify within 18 months of the date of purchase.

   
   

3. During this 18-month time frame Petitioner drove the vehicle less than 24,000 miles.

   
   

4. Several of the problems that Petitioner reported during the first 18 months of her ownership of the vehicle still persist today.

   
   

5. In June or July of 1993, Petitioner began considering the possibility of seeking arbitration under the State of Florida's "Lemon Law."

   
   

6. To find out more about her rights, she obtained from a friend, and reviewed, a Florida state government publication on the "Lemon Law."

   
   

7. In September of 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the Dealership requesting that it "make a final attempt to correct the . . . reported . . defects."

   
   

8. On November 12, 1993, Petitioner brought the vehicle to the Dealership for such repairs to be made. When she picked up the vehicle five days later, she discovered that the defects she had reported had not been remedied.

   
   

9. Dissatisfied with these results, Petitioner telephoned the Department and asked to be sent a Request for Arbitration form. She received the form on November 29, 1993.

10. Petitioner then proceeded to gather the documentation that she needed to fill out the form.

    
    

11. After gathering this documentation, Petitioner telephoned the Department a second time because she had some questions regarding certain items on the form.

    
    

12. Her questions having been answered by the Department representative to whom she spoke, Petitioner completed the form and, on December 2, 1993, mailed the completed form to the Department.

    
    

13. The Department received the completed form on December 6, 1993.

    
    

14. At no time did Petitioner, a layperson acting without the benefit of legal counsel, ever intend to forfeit her right to request arbitration under Chapter 681, Florida Statutes.

    
    

15. She was not under the impression, nor did the Department representatives to whom she spoke give her reason to believe, that if she failed to file her request for arbitration on or before November 23, 1993, her inaction would be deemed a waiver of her right to request arbitration under Chapter 681, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

16. Chapter 681, Florida Statutes, is the Motor Vehicle Warranty Enforcement Act (hereinafter referred to as the "Act"). Section 681.10, Fla. Stat.

    
    

17. The Act provides "statutory procedures whereby a consumer [of a new motor vehicle] may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the [manufacturer's] warranty." Section 681.101, Fla. Stat.

    
    

18. Among other things, the Act gives the consumer the right to request arbitration of his or her unresolved claim before the Florida New Motor Vehicle Board (hereinafter referred to as the "Board"). Sections 681.109 and 681.1095, Fla. Stat.

    
    

19. The Department is responsible, under the Act, for "screen[ing] all requests for arbitration to determine eligibility" and "forward[ing] to the [B]oard all disputes that [it] determines are potentially entitled to relief." Section 681.109(5), Fla. Stat.

    
    

20. Section 681.109(4), Florida Statutes, prescribes the time period within which a request for arbitration must be made. It provides, in pertinent part, as follows:

    
    

    A consumer must request arbitration before the board within 6 months after the expiration of the Lemon Law rights period. . . .

    
    

    The "Lemon Law rights period," as that term is used in Section 681.109(4), Florida Statutes, is "the period ending 18 months after the date of the original delivery of a motor vehicle to a consumer, or the first 24,000 miles of operation." Section 681.102(9), Fla. Stat. This 18-month period, however, may be extended six additional months "if a nonconformity has been reported, but has

    not been cured by the manufacturer, or its authorized service agent, by the [end of the period]." Section 681.104(3)(b), Fla. Stat.

    
    

21. In the instant case, the original "Lemon Law rights period" ended on November 23, 1992, 18 months from the date of Petitioner's purchase of the vehicle. Because the defects that Petitioner had reported to the Dealership had not been repaired by November 23, 1992, the original "Lemon Law rights period" was extended an additional six months, to May 23, 1993, by operation of Section 681.104(3)(b), Florida Statutes.

    
    

22. The Department has heretofore taken the position that the dispute that Petitioner seeks to have the Board arbitrate is ineligible for arbitration because Petitioner did not file her request for arbitration with the Department within six months of May 23, 1993, as required by Section 681.109(4), Florida Statutes.

    
    

23. The filing deadline established by Section 681.109(4), Florida Statutes, however, like the twenty-day time limitation for appealing an agency determination of abandonment of position that was analyzed by the Florida Supreme Court in Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988), "is not jurisdictional in the sense that failure to comply is an absolute bar to [Board consideration of the matter] but is more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling." Id. at 1133, n.2.

    
    

24. In Machules, the Florida Supreme Court made the following observations regarding the doctrine of equitable tolling:

    
    

    The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitation period. The tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which "'focuses on the plaintiff's excusable ignorance of the limitations period and on (the) lack of prejudice to the defendant.'" Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but

    focuses rather on the employee with a reasonably prudent regard for his rights. As Judge Zehmer notes in his dissent below:

    
    

    "The doctrine (of equitable tolling) serves to ameliorate harsh results that sometimes flow from a strict, literalistic construction and application of administrative time limits contained in statutes and rules."

    
    

    Id. at 1133-34 [Citations and footnotes omitted.]

25. Petitioner's failure in the instant case to request arbitration until nine days after the expiration of the six-month filing period prescribed in Section 681.109(4), Florida Statutes, was the product of excusable ignorance on her part. Acting without the benefit of legal counsel, she was unaware of the existence of such a limitations period, even after having twice spoken over the telephone with Department representatives regarding her plans to seek arbitration. Petitioner had initiated these telephone conversations as part of her attempt to make sure that she did all that was necessary to perfect her right to arbitration, a right that she at no time intended to relinquish. As it turned out, despite her effort to safeguard this right, she unknowingly filed her request for arbitration only after the six-month filing period prescribed in Section 681.109(4), Florida Statutes, had expired. Her failure to have filed the request sooner, however, has not resulted in any apparent prejudice to the manufacturer.

    
    

26. Under such circumstances, in the interest of justice, the Department should apply the doctrine of equitable tolling and deem Petitioner's request for arbitration to have been timely filed. See Ronbeck Construction Co., Inc., v. Savanna Club Corporation, 592 So.2d 344, 346 (Fla. 4th DCA 1992)(all doubts about waiver of arbitration should be resolved "in favor of arbitration"); General Motors Corporation v. Gus Machado Buick-GMC, Inc., 581 So.2d 637, 638 (Fla. 1st DCA 1991)("appellate courts have not viewed favorably arguments that short delays in requesting a hearing should result in a forfeiture of substantive rights"); Stewart v. Department of Corrections, 561 So.2d 15, 16 (Fla. 4th DCA)(where career service employee filed his notice of appeal with the Public Employees Relations Commission one business day after the time limitation had run and the delay in filing did not cause the employing agency prejudice, doctrine of equitable tolling should have been applied and employee should have been permitted to pursue his appeal); Rothblatt v. Department of Health and Rehabilitative Services, 520 So.2d 644, 645 (Fla. 4th DCA 1988)(appellant was entitled to an administrative hearing, notwithstanding that the request therefor was filed six days after the deadline prescribed by agency rule, where the late filing was the result of "excusable neglect"); Graham Contracting, Inc., v. Flagler County, 444 So.2d 971, 972 (Fla. 5th DCA 1983)("a waiver of the right to arbitrate should not be implied from mere inaction unless the delay has given the party seeking arbitration an undue advantage or has resulted in prejudice to another").

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order finding Petitioner's request for arbitration to have been timely filed and therefore not subject to dismissal on the ground of untimely filing.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of May, 1994.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-0755

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the parties in their post-hearing submittals:

Petitioner's Proposed Findings

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order..

2. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3. Accepted and incorporated in substance.

4-5. Rejected as findings of fact because they are more in the nature of conclusions of law.

6-7. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary of evidence adduced at hearing than a finding of fact based upon such evidence.

2. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony; Second sentence: Accepted and incorporated in substance.

3. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact based upon such testimony.

The Department's Proposed Findings

1-4. Accepted and incorporated in substance

COPIES FURNISHED:

Robert Feldman, Esquire Berman & Feldman

2424 Northeast 22nd Street Pompano Beach, Florida 33062-3099

Barbara Edwards, Esquire Department of Agriculture

and Consumer Services

515 Mayo Building

2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32399-0800

Honorable Bob Crawford, Commissioner Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-000755

Orders for Case No: 94-000755