STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL G. LAPLACA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3710

) DEPARTMENT OF AGRICULTURE & ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, James E. Bradwell held a formal hearing in this case on August 29, 1994 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul G. LaPlaca, pro se

Post Office Box 787 Valrico, Florida 33594

For Respondent: Barbara R. Edwards, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Whether Petitioner's arbitration request was timely filed.

PRELIMINARY STATEMENT

By letter dated April 18, 1994, Paul G. LaPlaca, Petitioner, was advised by Respondent, Department of Agriculture and Consumer Services, that his request for arbitration, which was filed on April 8, 1994, was rejected as being untimely filed in accordance with Chapter 681.109, Florida Statutes. Petitioner was advised that his request was received more than one year after the applicable filing period within which his request must have been placed on file with Respondent. Petitioner was also advised that he could appeal the denial of arbitration by requesting a formal hearing within twenty-one days, which request was timely filed. Thereafter, the matter was transferred to the Division of Administrative Hearings on July 5, 1994. Following the responses from the parties on July 25, 1994, on August 4, 1994, this matter was noticed for hearing for August 29, 1994 and was heard as scheduled.

At the hearing, Petitioner testified on his own behalf and Respondent presented the testimony of James D. Morrison, supervisor of Respondent's "lemon law" section.

On September 13, 1994, the parties mailed proposed recommended orders which were considered in preparation of this recommended order. Petitioner's proposal is in the form of a letter and, although considered, no specific rulings are made on the proposal. Respondent's proposed findings are substantially incorporated in this recommended order. Petitioner's composite exhibit 1 and Respondent composite exhibit 1 were offered and received in evidence at the hearing.

Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I hereby make the following relevant:

FINDINGS OF FACT

1. Petitioner purchased his vehicle, a 1991 Ford F-350 Supercab XLT Lariat from Bartow Ford in Bartow, Florida on September 4, 1990. At the time of purchase, the odometer read less than 100 miles.

   
   

2. Petitioner applied for arbitration on April 8, 1994. At the time of Petitioner's arbitration request, the vehicle had been driven approximately eighty-three thousand (83,000) miles. Petitioner's problems with his vehicle center around the automatic transmission.

   
   

3. Respondent's vehicle reached twenty-four thousand (24,000) miles on or about December 15, 1991.

   
   

4. On April 18, 1994, Respondent notified Petitioner that his arbitration request was untimely filed and was being denied.

   
   

5. The Motor Vehicle Sales Warranty Enforcement Act a/k/a the "Lemon Law", which is set forth in Chapter 681, Florida Statutes, is administered jointly by the Respondent and the Florida New Motor Vehicle Arbitration Board, Department of Legal Affairs.

   
   

6. Respondent is responsible for initially reviewing an application to determine whether or not it is facially appropriate and to make a determination as to whether the applicant is, or is not, "potentially entitled to relief". Based on Respondent's determination that Petitioner's request was untimely filed, the request was denied on April 18, 1994.

   
   

7. Petitioner's vehicle initially developed a transmission problem within six thousand seven hundred and seven (6,707) miles. The first service repair came on or about January 15, 1991. Petitioner returned the vehicle with the same problem on or about August 14, 1991 at which time the vehicle odometer read twenty-two thousand one hundred six (22,106) miles. Petitioner took the vehicle for repairs on three subsequent occasions and on each occasion the manufacturer rebuilt or replaced the transmission. Petitioner continues to have problems with his transmission and the manufacturer repairs the vehicle whenever it is brought in for service under the waranty.

   
   

8. James D. Morrison, Respondent's supervisor for its "Lemon Law" section, reviewed Petitioner's file and acted on Petitioner's arbitration request. As noted, the request was filed on April 8, 1994. Morrison's review confirmed that

   Petitioner purchased his vehicle on September 4, 1990. Based on Morrison's calculations, Petitioner had to timely file his arbitration request within eighteen months of the date of purchase or twenty-four thousand (24,000) miles. Morrison used the most extended filing period by referring to the date of purchase and counting forward eighteen months which derived the date of March 6, 1992. Morrison granted Petitioner an additional extension of six months in compliance with extensions allowed if a defect occurs during the "lemon law" period. By granting Petitioner these extensions and the most extended allowable filing period within which the filing had to have been made, all arbitration requests by Petitioner, to be timely filed, had to occur on or before December 4, 1992.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

   
   

10. The authority of the Respondent is derived from Chapter 681, Florida Statutes.

    
    

11. The initial Lemon Law rights period ends eighteen months after the purchase of the vehicle or when the vehicle reaches twenty-four thousand (24,000) miles of service, whichever is sooner. Section 681.102(9), Florida Statutes. Using this calculation, Petitioner's "Lemon Law" rights period pursuant to the eighteen month filing, expired on March 6, 1992. By calculating the Petitioner's "Lemon Law" rights period at twenty-four thousand (24,000) miles, his initial Lemon Law rights period expired December 15, 1991.

    
    

12. Section 681.104(3)(b), Florida Statutes, authorizes a six month extension when a nonconformity has been reported during the initial rights period but has not been cured. Petitioner's situation fits under the nonconformity guidelines since he reported a nonconformity during the initial rights period which was not cured. As such, Petitioner was allowed an extension through September 6, 1992, to timely file an arbitration request. Since Petitioner's arbitration request was not filed until April 8, 1994, it was untimely.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Respondent, the Department of Agriculture and Consumer Services, enter a final order denying Petitioner's request for Lemon Law arbitration as it was untimely filed.

DONE AND ENTERED this 28th day of October, 1994, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 28th day of October, 1994.

COPIES FURNISHED:

Paul G. LaPlaca Post Office Box 787

Valrico, Florida 33594

Barbara R. Edwards, Esquire Department of Agriculture and

Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture 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 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: 94-003710

Orders for Case No: 94-003710