STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALFRED FAUSTINO and )

LORETTA FAUSTINO, )

)

Petitioners, )

)

vs. ) CASE NO. 95-2540

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on September 21, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Alfred Faustino

Loretta Faustino

9854 Northwest 2nd Street Plantation, Florida 33324

For Respondent: Rhonda Long Bass, Esquire

Legal Division

Florida Department of Agriculture and Consumer Affairs

Room 515 Mayo Building Tallahassee, Florida 32399-0080

STATEMENT OF THE ISSUES

Whether the Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board should be granted or denied.

PRELIMINARY STATEMENT

Petitioners submitted a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board (Arbitration Board) to Respondent's Division of Consumer Services (Division) on March 29, 1995. As required by the provision of Chapter 681, Florida Statutes, the request was reviewed by the Division to determine whether the request qualified for referral to the Arbitration Board, which has been established within the Florida Department of Legal Affairs. On April 6, 1995, the Respondent denied the request for arbitration on the grounds that it was not timely filed. Petitioners thereafter timely challenged the denial of their application for arbitration, the matter was referred to the Florida Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioners testified on their own behalf, but offered no exhibits. Respondent presented the testimony of Rudy Hamrick, an analyst employed by Respondent, and offered two exhibits, both of which were accepted into evidence. At the request of the Respondent, official recognition was taken of Chapter 681, Florida Statutes.

No transcript of the proceedings has been filed. The time for filing post- hearing submissions was set for ten days following the close of the formal hearing. The proposed findings of fact submitted by the Respondent are adopted in material part by this Recommended Order. The Petitioners did not file a post-hearing submittal.

FINDINGS OF FACT

1. Pursuant to Section 681.109, Florida Statutes, Respondent's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive and evaluate consumer requests for arbitration pursuant to Chapter 681, which is officially known as the Motor Vehicle Warranty Enforcement Act, but which is more commonly referred to as the "Lemon Law". As part of its responsibilities, the Division of Consumer Services determines whether complaints it receives from consumer against manufacturers pursuant to the "Lemon Law" qualify for referral to the Department of Legal Affairs for further proceedings before the Florida New Motor Vehicle Arbitration Board. 1/

   
   

2. On March 29, 1995, Respondent received and filed Petitioners' Request for Arbitration under the provisions of the Lemon Law.

   
   

3. Section 681.102(9), Florida Statutes, defines the "Lemon Law rights period" as being ". . . 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, whichever first occurs."

   
   

4. The automobile that is the subject of Petitioners' complaint is a Toyota Camry. The Petitioners took delivery of this vehicle on July 25, 1992, the date they leased the vehicle from a Toyota dealer. Eighteen months from July 25, 1992, is January 25, 1994. It was not until September 1, 1994, that Petitioners put 24,000 miles on the vehicle. The initial Lemon Law period, as defined by Section 681.102(9), Florida Statutes, expired for the subject vehicle on January 25, 1994.

   
   

5. Petitioners made complaints to the dealer prior to January 25, 1994, that remained uncured after January 25, 1994. Because of those complaints, the Respondent assumed that the Lemon Law period was extended for an additional six month period pursuant to Section 681.104(3)(b), Florida Statutes. Considering the evidence in the light most favorable to the Petitioners, the Respondent determined that the extended Lemon Law period expired July 25, 1994. It is found that the extended Lemon Law period for the subject vehicle expired on or before July 25, 1994.

   
   

6. Pertinent to this proceeding, Section 681.109(4), Florida Statutes, provides that a consumer must request arbitration before the Arbitration Board within six months after the expiration of the extended Lemon Law rights period. Because of that provision, the Petitioners had until January 25, 1995, to file its request for relief under the Lemon Law.

   
   

7. The request for relief under the Lemon Law, first filed by Petitioners on March 29, 1995, was not timely.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. As reflected in the findings of fact, Petitioners' application for relief pursuant to the Florida Lemon Law was not timely. It is clear that Mr. and Ms. Faustino had a legitimate basis for dissatisfaction with the manufacturer of their vehicle. Unfortunately, the resolution of this matter does not turn on whether the underlying claim against the manufacturer is meritorious. Instead, it must turn on the finding that the application for relief was not timely filed. In the absence of an application filed within the deadlines set by statute, the Respondent has no authority to forward a request for arbitration services to the Department of Legal Affairs for further proceedings before the Arbitration Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that denies the

Petitioners' Request for Arbitration by the Florida New Motor Vehicle

Arbitration Board on the grounds that the request was not timely.

DONE AND ENTERED this 19th day of October, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 19th day of October, 1995.

ENDNOTE

1/ The Florida New Motor Vehicle Arbitration Board is established within the Florida Department of Legal Affairs by Section 681.1095, Florida Statutes.

Section 681.109, Florida Statutes, imposes upon the Respondent's Division of Consumer Services the responsibility to receive and to screen requests for arbitration. If the Division of Consumer Services determines that a request is potentially entitled to relief, it is required to forward that request to the Arbitration Board. There is no statutory authority for the Division to forward to the Board a request for arbitration that was not timely filed.

COPIES FURNISHED:

Alfred Faustino Loretta Faustino

9854 Northwest 2nd Street Plantation, Florida 33324

Rhonda Long Bass, Esquire Legal Division

Florida Department of Agriculture and Consumer Affairs

Room 515 Mayo Building Tallahassee, Florida 32399-0080

Honorable Bob Crawford Commissioner of Agriculture 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

Brenda D. Hyatt, Chief Department of Agriculture Bureau of Licensing and Bond Mayo Building, Room 508 Tallahassee, Florida 32399-0800

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 ten 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: 95-002540

Orders for Case No: 95-002540