STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE W. BIERLIN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 95-5309

) FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 17, 1996, a formal administrative hearing was held in this case in Orlando, Florida, before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: George W. Bierlin, Jr. (pro se)

Loretta Bierlin (his wife) 1725 Richardson Road

Merritt Island, Florida 32952

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

Whether Petitioner filed a timely Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

PRELIMINARY STATEMENT

This case was initiated via the Department's letter to George W. Bierlin, Jr., dated September 1, 1995, giving notice of the Department's denial of Petitioner's Request for Arbitration before the Florida New Motor Vehicle Arbitration Board (Hereinafter, the "Board"). In response, Petitioner timely requested a formal hearing under Section 120.57(1), Florida Statutes. As a result, the Department forwarded this case to the Division of Administrative Hearings (hereinafter "DOAH") for assignment of a Hearing Officer.

This case came on for formal hearing on January 17, 1996 in Tallahassee, Florida, with video conference to Orlando, Florida. Loretta Bierlin testified on behalf of the Petitioner and four exhibits were admitted in evidence. Jim Morrison, Consumer Complaint Analyst Supervisor, testified for the Respondent,

and two exhibits were admitted in evidence. Official recognition was taken of Chapter 681, Florida Statutes. Pursuant to the Hearing Officer's instructions, the parties were given 10 days from the date of the hearing to submit Proposed Recommended Orders. Petitioner has not filed proposed findings of fact or conclusions of law as of the date of this Order. Respondent filed its proposals on January 26, 1996. Explicit rulings on the proposed findings of fact contained in the Respondent's proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 95-0572.

FINDINGS OF FACT

1. Pursuant to Section 681.109, Florida Statutes, the Department's Division of Consumer Services (hereinafter, the "Division") is the state agency in Florida charged with the responsibility to receive and evaluate customer complaints and Requests for Arbitration in disputes with automobile manufacturers and dealers doing business in this state, and to determine if the requests qualify for referral to the Attorney General for further processing and action.

   
   

2. Petitioner took delivery of the Ford motor vehicle at issue on January 29, 1993, and the vehicle reached 24,000 miles on January 7, 1995.

   
   

3. In the intervening months, the truck exhibited severe vibration while being driven.

   
   

4. Petitioner took the vehicle to the Ford dealer for repair, beginning on April 21, 1993 and again on June 3, June 21, twice in July 1993, January 6, 1994, and January 5, 1995. However, the problem was not corrected.

   
   

5. In February 1995, Ford authorized Petitioner to take the vehicle to a private garage and the garage attempted to correct the problem without success.

   
   

6. On May 8, 1995, Petitioner mailed, by registered mail to Ford Motor Company, a Motor Vehicle Defect Notification, with a copy to the Office of the Attorney General, Lemon Law Research Unit.

   
   

7. In response to the Notification, on June 6, 1995, Ford Motor Company requested Petitioner take the vehicle in for final repairs.

   
   

8. No response was received from the Attorney General's Office.

   
   

9. When no response was received from the Attorney's General Office, Petitioner called Respondent's office and learned for the first time, that they must file a Request for Arbitration with Respondent's Consumer Complaint Division.

   
   

10. On August 25, 1995, the Department received and filed Petitioners' Request for Arbitration by the Board.

    
    

11. The initial Lemon Law Rights Period of 18 months from the date of delivery of the vehicle expired on July 29, 1994.

    
    

12. Petitioner was entitled to an extension of the original Lemon Law Rights period because items of nonconformity reported during the original Lemon Law Rights Period remained uncured after that period. The extension ended on January 29, 1995, pursuant to Section 681.104(3)(b), Florida Statutes.

13. Consumers are entitled to file for relief under the statute for a period of up to 6 months after the expiration of the Lemon Law Rights Period; that filing period ended on July 29, 1995, pursuant to section 681.109(4), Florida Statutes.

    
    

14. Ford Motor Company does not have a state certified procedure. The Lemon Law and a state certified procedure are not synonymous.

    
    

15. Petitioner forwarded his Motor Defect Notification to Ford Motor Company and the Office of the Attorney General. Each received the notification on May 22, 1995 and May 11, 1995 respectively.

    
    

16. The Motor Vehicle Defect Notification and the Request for Arbitration are not the same document and do not serve the same purpose.

    
    

17. Petitioner's Request for Arbitration was denied based upon the Department's conclusion that Petitioner's request was filed untimely as set forth in Respondent's Letter of Denial.

    
    

18. Petitioner did not request arbitration before the Board until well after the last possible filing date of July 29, 1995.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Petitioner has the burden of proof in this proceeding since he is the party asserting the affirmative of the issue. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990). Petitioner must show by a preponderance of the evidence that he filed his request for arbitration in a timely manner.

    
    

21. Chapter 681, Florida Statutes, is the Motor Vehicle Warranty Enforcement Act. Pursuant to Section 681.109(5), Florida Statutes, the Division of Consumer Services, is charged with the responsibility of screening all requests for arbitration before the Board to determine eligibility. Further, pursuant to Section 681.109(6), Florida Statutes, the Division "may reject a dispute that it determines to be fraudulent or outside the scope of the Board's authority."

    
    

22. Section 681.109(4), Florida Statutes, requires consumers to request arbitration within 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified procedure, whichever date occurs later. The "Lemon Law rights period" is defined in Section 681.102(9), Florida Statutes, as:

    
    

    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 occurs first.] [Emphasis added.]

    
    

23. Section 681.104, Florida Statutes, provides the procedures consumers must follow to report nonconformity to the automobile manufacturer's warranty. Subparagraph (3)(a) requires that at least three attempts to conform a motor vehicle to the warranty must occur during the Lemon Law rights period.

    Subparagraph (3)(b) extends that period to six months after the expiration of the Lemon Law rights period only if a nonconformity has been reported but has not been cured by the manufacturer by the expiration of the Lemon Law rights period.

    
    

24. The evidence submitted in this cause established that Petitioner's Request for Arbitration was untimely filed. Therefore, the Department was required to deny Petitioner's request under Section 681.109(6), Florida Statutes, as outside the Board's authority.

    
    

25. Even though the time limitation in Section 681.109(4), Florida Statutes, has been analogized to a statute of limitation in two DOAH Recommended Orders, Dispennette v. Department of Agriculture and Consumer Services, Docket No. 94-0111 (DACS June 16, 1994) (Final Order) and Palaez v. Department of Agriculture and Consumer Services, Docket No. 94-0508 (DACS May 24, 1995) (Final Order), there is no statutory provision for excusing late filing of an arbitration request. Sandy Morrow v. Florida Department of Agriculture and Consumer Services, Docket No. 95-0003 (DACS May 24, 1995) (Final Order); Carlos

    M. Romeo v. Florida Department of Agriculture and Consumer Services, Docket No. 95-0677 (DACS May 11, 1994) (Final Order); Alfred and Loretta Faustino v. Florida Department of Agriculture and Consumer Services, Docket No. 95-0309 (DACS December 5, 1995) (Final Order).

    
    

26. Every time limit included in the Florida Lemon Law is jurisdictional as a matter of law, and not analogous to a statute of limitation. LaFloridienne

    v. The Seaboard Air Line Railway, 52 So.2 98 (Fla. 1910). Accord Fowler v. Matheny, 184 So.2d 676, 677-78 (Fla. 4th DCA 1966); Regal Wood Products, Inc. v. First Wisconsin National Bank of Milwaukee, 347 So.2d 653 (Fla. 4th DCA 1977); Special Disability Trust Fund v. Southern Bell Telephone and Telegraph Co., 551 So.2d 575 (Fla. 1st DCA 1989).

    
    

27. Unfortunately, even though Petitioner was not aware of the difference between a Motor Vehicle Defect Notification and a Request for Arbitration, under the terms of the Florida Lemon Law, if the Petitioner does not meet the eligibility requirements for requesting arbitration, the Department has no authority to send the complaint to the Attorney General for arbitration.

RECOMMENDATION

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

RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order denying the Petitioner's request for arbitration before the Board.

DONE AND ENTERED this 27th day of February, 1996 in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE, 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 27th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5309

To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

Petitioner did not submit proposed findings.

Respondent's Proposed Findings of Fact.

Accepted in substance paragraphs 1-11

COPIES FURNISHED:

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

George W. Bierlin, Jr. Loretta Bierlin

1725 Richardson Road

Merritt Island, Florida 32952

Rhonda Long Bass, Esquire Legal Division

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building 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: 95-005309

Orders for Case No: 95-005309