STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLTON AND PATRICIA JONES, )

)

Petitioners, )

)

vs. ) CASE NO. 95-4772

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Suzanne F. Hood, Hearing Officer with the Division of Administrative Hearings, on January 29, 1996, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Carlton and Patricia Jones, Pro Se

804 Pheasant Court West Jacksonville, Florida 32259

For Respondent: Rhonda Long Bass, Esquire

Legal Division

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent properly denied Petitioners' request for arbitration before the Florida New Motor Vehicle Arbitration Board.

PRELIMINARY STATEMENT

On or about June 8, 1995, Respondent Department of Agriculture and Consumer Services, Division of Consumer Services (Respondent), notified Petitioners Carlton and Patricia Jones (Petitioners) that they were not entitled to arbitration under to Section 681.109, Florida Statutes. As a result of this denial, Petitioners requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, on July 24, 1995. Respondent referred this matter to the Division of Administrative Hearings on September 26, 1995, for assignment of a Hearing Officer.

On October 13, 1995, the parties filed a Joint Response to Initial Order with the Division of Administrative Hearings. The undersigned issued a Notice of Hearing, dated October 17, 1995, setting this matter for formal hearing on January 29, 1996.

At the formal hearing, Petitioners presented the testimony of Patricia Jones and offered six (6) exhibits, all of which were accepted into evidence without objection. Respondent presented the testimony of one (1) witness and offered five (5) exhibits, all of which were accepted into evidence without objection.

Neither party ordered a copy of the hearing transcript. Respondent timely filed its proposed recommended order on February 8, 1996. Petitioners did not file any post-hearing submission.

FINDINGS OF FACT

1. Respondent is the state agency charged with the responsibility to receive and evaluate customer complaints and requests for arbitration in disputes with automobile manufacturers and dealers doing business in the state of Florida. Respondent's duty includes determining whether a request for arbitration qualifies under Section 681.109, Florida Statutes, for referral to the Florida New Motor Vehicle Arbitration Board.

   
   

2. Petitioners took delivery of a new Ford motor vehicle on February 3, 1992. Thereafter, Petitioners began having problems with the automobile's engine, windshield wipers, driver's window and power steering.

   
   

3. Petitioners reported these problems to the authorized service agent for the first time on or about January 13, 1993. The mileage on the automobile was approximately 11,000 miles at that time.

   
   

4. The authorized dealer attempted to repair the subject motor vehicle on January 13, 1993, February 9, 1993, and December 1, 1993. In January of 1994, the automobile had been operated for 24,000 miles.

   
   

5. The authorized dealer again attempted to repair the subject vehicle on March 9, 1994.

   
   

6. Petitioners completed a Vehicle Defect Notification on August 15, 1994. The purpose of this notice was to inform the manufacturer of the unsuccessful repair attempts. Ford Motor Company received this notice on August 18, 1994. The mileage on the automobile at that time was 29,569 miles.

   
   

7. On August 23, 1994, the authorized dealer made a final attempt to repair the subject automobile.

   
   

8. At all times material to this proceeding, Ford Motor Company participated in a state certified dispute settlement program.

   
   

9. On October 5, 1994, Petitioners completed a Dispute Settlement Board Application. The Dispute Settlement Board received Petitioners' application on October 17, 1994.

   
   

10. Petitioners took their automobile to the authorized dealer on October 27, 1994, because the engine light was on.

    
    

11. The Dispute Settlement Board considered Petitioners' case on November 17, 1994. By letter dated November 19, 1994, the Dispute Settlement Board notified Petitioners that Ford Motor Company would repair the automobile's window and windshield wipers with no expense to Petitioners. The Dispute

    Settlement Board also informed Petitioners that Ford Motor Company would not be required to repair the engine, speaker, and rear view mirror concerns because, according company and authorized dealer reports dated October 31, 1994, those problems were resolved.

    
    

12. On December 17, 1994, Petitioners completed a Request for Arbitration form. Respondent received this request on December 22, 1994.

    
    

13. Respondent's letter of January 23, 1995, informed Petitioners that their arbitration application was not properly documented concerning the vehicle finance agreement. Respondent directed Petitioners to re-file their application with the proper documentation. Respondent also advised Petitioners that the application might be rejected as untimely.

    
    

14. On or before February 3, 1995, Petitioners re-submitted their arbitration application. Respondent rejected Petitioners' arbitration application as untimely. Subsequently, Petitioners filed a request for an administrative hearing to contest the denial of their application.

    
    

15. Upon receipt of Petitioners' request for administrative hearing, Respondent reviewed Petitioners' file again. After this review, Respondent sent Petitioners a May 25, 1994, letter which erroneously determined that Petitioners' request for arbitration was eligible for referral to the Florida New Motor Vehicle Arbitration Board. This letter correctly determined that the subject vehicle reached 24,000 after January 1, 1994. However, it incorrectly determined that the Lemon Law rights period had been extended to January 1, 1995.

    
    

16. By letter dated June 8, 1995, Respondent corrected its erroneous decision, withdrew the letter of May 25, 1995, and reinstated the letter of February 3, 1995.

    
    

17. The initial Lemon Law rights period expired on August 3, 1993, eighteen (18) months after the date of delivery of the subject motor vehicle. Therefore it is irrelevant that the car did not accumulate 24,000 miles until January of 1994.

    
    

18. Respondent correctly extended the initial Lemon Law rights period for six (6) months, until February 3, 1994, because: (1) Petitioners notified the authorized dealer about the automobile's nonconformance with warranty within the initial Lemon Law rights period; and (2) The authorized dealer did not cure the defects within the initial Lemon Law rights period.

    
    

19. In order to be eligible for arbitration, Petitioners had to file their claim with the certified dispute settlement board within six (6) months of the expiration of the extended Lemon Law rights period which, in this case, was August 3, 1994.

    
    

20. Petitioners were not entitled to file their request for arbitration within thirty (30) days after final action of the certified dispute settlement procedure because they did not even start that procedure until the time to file a request for arbitration had expired.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

22. Pursuant to Section 681.109(5), Florida Statutes, Respondent is responsible for screening all requests for arbitration before the Florida New Motor Vehicle Arbitration Board. Respondent "may reject a dispute that it determines to be fraudulent or outside the scope of the board's authority." Section 681.109(6), Florida Statutes.

    
    

23. The Lemon Law rights period is the period ending eighteen (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 occurs first. Section 681.102(9), Florida Statutes.

    
    

24. The Lemon Law rights period may be extended for six (6) months if repairs necessary to conform the vehicle to warranty have been reported but have not been cured by the manufacturer, or its authorized service agent, by the expiration of the Lemon Law rights period. Section 681.104(3)(b), Florida Statutes.

    
    

25. In order to be eligible for arbitration, a consumer with a claim against an automobile manufacturer, who participates in a certified dispute settlement program, must file that claim with the certified dispute settlement board within six (6) months after the expiration of the Lemon Law rights period. Section 681.109(2), Florida Statutes.

    
    

26. Section 681.109(4), Florida Statutes, requires consumers to request arbitration within six (6) months after the expiration of the Lemon Law rights period, or within thirty (30) days after the final action of a certified dispute settlement procedure, which ever occurs later. However, a consumer who waits until after the expiration of the extended Lemon Law rights period to even begin the certified dispute settlement procedure is not entitled to arbitration.

    
    

27. In this case, Petitioner did not begin the dispute settlement procedure until more than six (6) months after the expiration of the extended Lemon Law rights period. Therefore their request for arbitration was not timely.

    
    

28. It is clear the Petitioners 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 turns on the finding that Petitioners did not timely file their arbitration application.

    
    

29. In the absence of an application filed within the deadlines set by statute, Respondent has no authority to forward a request for arbitration services to the Department of Legal Affairs for further proceedings before the Florida New Motor Vehicle Arbitration Board.

RECOMMENDATION

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

Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on grounds that the request was not timely.

DONE AND ENTERED this 26th day of February, 1996, in Tallahassee, Florida.

SUZANNE HOOD, HEARING OFFICER

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 26th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4772

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on Respondent's Proposed Findings of Fact.

Respondent's Proposed Findings of Fact 1-11 are accepted in substance as restated in Findings of Fact 1-20 of this Recommended Order.

COPIES FURNISHED

Carlton and Patricia Jones 804 Pheasant Court West Jacksonville, FL 32259

Rhonda Long Bass, Esquire Department of Agriculture and

Consumer Services Mayo Building, Room 515

Tallahassee, FL 32399-0800

The Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, FL 32399-0810

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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: 95-004772

Orders for Case No: 95-004772