STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM and MARGARET NEWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5938

) STATE OF FLORIDA, DEPARTMENT OF ) AGRICULTURE AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on January 23, 1996, in Lake City, Florida.

APPEARANCES

For Petitioner: John K. McPherson, Esquire

703 North Main Street Gainesville, Florida 32601

For Respondent: Rhonda Long Bass, Esquire

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, the Department of Agriculture and Consumer Services, is estopped from denying Petitioners' request for arbitration under Florida's Motor Vehicle Warranty Enforcement Act, Chapter 681, Florida Statutes.

PRELIMINARY STATEMENT

On or about September 28, 1995, Petitioners filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board with Respondent. By letter dated October 11, 1995, Respondent notified Petitioners that their request for arbitration was being denied because it had not been submitted within the time requirements of Section 681.109(9), Florida Statutes.

Petitioners filed a Petition for Formal Proceeding challenging Respondent's proposed denial of their request. On December 7, 1995, the Petition was filed with the Division of Administrative Hearings. The matter was designated case number 95-5938 and was assigned to Hearing Officer Charles C. Adams. The case was subsequently transferred to the undersigend.

At the final hearing, Petitioners testified on their own behalf.

Petitioners offered not exhibits.

Respondent presented the testimony of James D. Morrison. Respondent also offered one composite exhibit. Respondent's exhibit was accepted into evidence without objection.

The parties stipulated to certain pertinent facts in this case. Those facts have been included as Findings of Fact in this Recommended Order.

No transcript of the final hearing was filed. Proposed recommended orders were required to be filed on or before February 2, 1996. Both parties timely filed proposed orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioners, William and Margarent Newell, are husband and wife. The Newells reside in Lake City, Florida.

      
      

   2. Respondent, the Department of Agriculture and Consumer Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. Among other things, the Department is responsible for the receipt and evaluation of complaints and requests for arbitration involving disputes between automobile dealers and manufacturers doing business in Florida and the citizens of the State of Florida. See Chapter 681, Florida Statutes.

      
      

2. The Newells' Automobile Purchase.

   
   

   1. On August 6, 1993, the Newells took possession of a new Dodge Colt (hereinafter referred to as the "Colt"). The date the contract of purchase was signed, and, therefore, the date of purchase, was August 9, 1993. Stipulated Facts.

      
      

   2. The Colt was purchased from Sunbelt Chrysler (hereinafter referred to as the "Dealer"), in Lake City, Florida.

      
      

3. The Newell's Experience with the Colt and the Department's Advice.

   
   

   1. During the first week after taking possession of the Colt, Ms. Newell began to experience trouble with the automatic transmission. The transmission would "slip" resulting in the engine "winding out".

      
      

   2. On August 14, 1993, Ms. Newell took the Colt to the Dealer and reported the transmission problems. An employee of the Dealer took the Colt for a test ride and told Ms. Newell that he found nothing wrong with the transmission. Ms. Newell was told to bring the Colt back if she continued to experience trouble with the transmission.

      
      

   3. No documentation of the August 14, 1993 visit with the Dealer was provided to Ms. Newell by the Dealer. Ms. Newell's testimony concerning the date and incident was unrefutted.

   4. The Newells continued to experience problems with the transmission. On September 23, 1993, Mr. Newell took the Colt back to the Dealer and reported the transmission problem again. This time the Colt was left with the Dealer.

      
      

   5. The Dealer returned the Colt to the Newells on September 23, 1993 and told them that no problem was experienced or discovered with the transmission. Again, the Dealer told the Newells to bring the Colt back if they experienced further trouble.

      
      

   6. No documentation of the September 23, 1993 visit with the Dealer was provided to the Newells by the Dealer. The Newells' testimony concerning the date and incident was unrefutted.

      
      

   7. Mr. Newell took the Colt back to the Dealer for the third time on September 27, 1993. This time the Colt was kept overnight by the Dealer.

      
      

   8. The Colt was returned September 28, 1993. Again, no problem with the transmission was found by the Dealer.

      
      

   9. The Dealer provided documentation to the Newells of the September 27, 1993 effort at repair.

      
      

   10. On April 8, 1994, after continuing to experience problems with the Colt's transmission, Mr. Newell contacted a representative of the Department in an effort to gather information about how to file a claim under Florida's Vehicle Warranty Enforcement Act, Chapter 681, Florida Statutes.

       
       

   11. The Department's representative told Mr. Newell that he would need "documentation" of a minimum of three repair attempts on the Colt by the Dealer before a claim could be filed. What constituted "documentation" was not explained, but it was resonable for Mr. Newell to conclude that written documentation from the Dealer of three attempts was required.

       
       

   12. Mr. Newell only had documentation of one repair attempt from the Dealer as of April 8, 1994. Mr. Newell was not told that the two undocumented repair attempts of August 14, 1993 and September 23, 1993, could also qualify as repair attempts if Mr. Newell provided an affidavit stating that repair attempts were made on those dates.

       
       

   13. In reasonasble reliance on the information provided by the Department to Mr. Newell on April 8, 1993, the Newells did not file a claim with the Department.

       
       

   14. On May 25, 1994, the Colt had been driven 24,000 miles. This constituted the end of the "Lemon Law rights period" as used in Section 681.109, Florida Statutes, and as defined in Section 681.102(9), Florida Statutes. (Stipulated Facts).

       
       

   15. The transmission continued to malfunction after April 8, 1993. On July 21, 1994, the Newells had the Colt serviced for the transmission problem. They received their second "documentation" at this time from the Dealer.

       
       

   16. On October 12, 1994, the Newells had the Colt serviced again for the same problem. The transmission had to be rebuilt on this occassion. The Newells received their third "documentation" at this time from the Dealer.

   17. Despite having three "documentations" of repair attempts as of October 12, 1994, the Newells did not file a claim with the Department at that time.

       The Newells' reliance on the representations of the Department made on April 8, 1994, would not, therefore, reasonably explain why they did not file a claim upon receiving the documentation that they believed was necessary on October 12, 1994. Reliance on the Department's representations of April 8, 1994, does not explain or justify the Newells lack of complaince with the time requirements for filing a request for arbitration.

       
       

   18. On or about January 6, 1995, Mr. Newell again spoke with a representative of the Department concerning this matter. Mr. Newell explained that he had the three repair documents that he had been told he needed. He had also completed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board which he intended to file with the Department. Mr. Newell was incorrectly told, however, that the time for filing the request had expired. In reliance upon this representation, Mr. Newell again failed to file the request for arbitration.

       
       

   19. On January 25, 1995, the Newells sent notice to the manufacturer of their problem with the Colt. On February 14, 1995, a representative from the manufacturer inspected the Colt. Again, nothing was found wrong with the rebuilt transmission.

       
       

   20. On May 25, 1995, the statutory period for requesting arbitration expired. The Newells were entitled to a six-month extension from May 25, 1994, to November 25, 1994, pursuant to Section 681.104(3)(b), Florida Statutes, because they had reported the problem with the transmission during the original Lemon Law rights period and it had not been cured. Pursuant to Section 681.109(4), Florida Statutes, the Newells had six-months after the end of the extended Lemon Law rights period, or from November 25, 1994 to May 25, 1995, to file their request for arbtiration.

       
       

   21. On September 1, 1995, the rebuilt transmission on the Colt again burned up. The Colt has remained parked since that date through the date of the hearing in this case.

       
       

4. The Newells' Request for Arbitration.

1. On September 28, 1995, after again speaking to a representative from the Department, the Newells filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board with the Department. This request was filed just over four months after the deadline for filing the request expired.

   
   

2. The Department denied the request by letter dated October 11, 1995, based upon the Department's determination that the request was untimely.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

3. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1995).

   
   

   1. The Elements of Discriminatory Conduct; The Burden of Proof.

4. Chapter 681, Florida Statutes, the Motor Vehicle Warranty Enforcement Act, establishes procedures for the resolution of disputes between automobile manufacturers and dealers, and the citizens of the State of Florida. Among other things, Section 681.109, Florida Statutes, establishes procedures by which citizens may request that a dispute be submitted to the Florida New Motor Vehicle Arbitration Board.

   
   

5. Pursuant to Section 681.109(5), Florida Statutes, the Department is charged with the responsibility of screening requests for arbitration to insure eligibility for arbitration.

   
   

6. Pursuant to Section 681.109(6), Florida Statutes, the Department is authorized to reject requests if they are determined to be "fraudulent or outside the scope of the board's authority."

   
   

7. In order for a consumer to be entitled to arbitration, the consumer must meet certain time constraints imposed by Section 681.109, Florida Statutes. Pursuant to Section 681.109(4), Florida Statutes, a request for arbitration must be made "within 6 months after the expiration of the Lemon Law rights period . .

   . ."

   
   

8. The "Lemon Law rights period" is defined in Section 681.102(9), Florida Statutes, as follows:

   
   

   (9) "Lemon Law rights period" means the period ending 18 months after the date of the original delivery of a motor vehicle to a son- sumer or the first 24,000 miles of operation, whichever occurs first.

   
   

9. A 6 months extension of the Lemon Law rights period is provided for pursuant to Section 681.104(3)(b), Florida Statutes, "if a nonconformity has been reported but has not been cured by the manufacturer, or its authorized service agent, by the expiration of the Lemon Law rights period."

   
   

10. Finally, of relevance in this matter, Section 681.104(1)(a), Florida Statutes, requires that consumers make "three attempts . . . to repair the same nonconformity . . . " without success before seeking arbitration.

    
    

    1. The Newells' Failure to Timely Request Arbitration.

       
       

11. The evidence proved that the Colt had been driven 24,000 miles (May 25, 1994), before 18 months after the purchase of the Colt (February, 1995). May 25, 1994, is, therefore, the end of the Lemon Law rights period as defined in Section 681.102(9), Florida Statutes.

    
    

12. The evidence also proved that the Newells were entitled to a 6 month extension of the Lemon Law rights period to November 25, 1994, pursuant to Section 681.104(3)(b), Florida Statutes.

    
    

13. Based upon the foregoing, the Newells were required to file their request for arbitration within 6 months after the end of the extended Lemon Law rights period (November 25, 1994), or no later than May 25, 1995.

14. The evidence also proved, and the parties do not dispute, that the Newells did not file their request for arbitration on or before May 25, 1995. Instead, it was just over 4 months after the May 25, 1995 deadline, or September 28, 1995, before the Newells filed their request.

    
    

15. Based upon the foregoing, the Department correctly concluded that the Newells do not qualify for arbitration because their request was untimely.

    While not disputing the conclusion reached by the Department based upon a strict application of the applicable provisions of Chapter 681, Florida Statutes, the Newells have argued that they are nonetheless entitled to arbtiration pursuant to the doctrine of equitable tolling.

    
    

    1. Equitable Tolling.

    
    

16. The doctrine of equitable tolling was expalined and applied in Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988). In Machules, a employee was dismissed from employment with the Department of Insurance. The employee filed a challenge to his dismissal, but in the wrong forum. The Department of Insurance, however, did not contest the forum. Instead, the Department of Insurance particpated in the proceedings in the forum. By the time the mistake was discovered, the time for filing a proceeding in the proper forum had passed. The Supreme Court of Florida ruled that the doctrine of equitable tolling applied in Machules and concluded that the late filed petition should be accepted by the Department of Administration.

    
    

17. In applying the doctrine, the Supreme Court opined:

    
    

    The doctrine of equitable tolling was developed to permit under certain circum- stances the filing of a lawsuit that would otherwise be barred by a limitations period.

    . . . . 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. . . .

    . . . .

    Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistaenlyin the wrong forum. . . .

    
    

    Machules, 523 So.2d at 1133-34.

    
    

18. In Machules, the Court found the doctrine applicable based upon two facts: "petitioner was misled or lulled into inaction by his Employer, and his appeal to DOA raised the identical issue raised in the original timely claim filed in the wrong forum." Machules, 523 So.2d at 1134.

    
    

19. In this case, the Newells have argued that the doctrine of equitable tolling should be applied to them because of the information provided to them on April 8, 1994 concerning the need to provide "documentation" of three repair attempts. The Newells have argued that, but for the that incorrect information, they would have filed their request for arbitration at that time.

20. While the information provided to the Newells was incorrect, the evidence does support a finding that the incorrect information concerning the need for "documentation" was the cause of their late filed request. Despite being given incorrect information in April of 1994, they still could have met the time requirements for requesting arbitration by following the incorrect instructions; they still had time to obtain the "documentation" they believed they needed and timely file their request for arbitration.

    
    

21. More importantly, the evidence proved that the Newells did in fact obtain the "documentation" they believed they were required to submit in October of 1994, some 7 months prior to the deadline for filing a request for arbitration. They could have still met the time requirement for requesting arbitration when they obtained the "documentation" had they followed the Department's incorrect advice concerning "documentation."

    
    

22. The foregoing conclusions do not, however, end this matter. Even though the incorrect advice concerning "documentation" cannot be said to have caused the Newells to untimely file their request for arbitration, they received further incorrect advice from the Department in January of 1996.

    
    

23. After obtaining the "documentation" they believed they were required to submit to the Department, Mr. Newell prepared a request for arbitration on January 6, 1995, well within the statutory time limitation for filing a request for arbitration. Mr. Newell did not file the request, however, because he was incorrectly informed by the Department that the time to file had already expired. In reliance on this advice, the Newells did not file a request for arbitration before May 25, 1995 when the time for filing expired. It was this incorrect advice that caused the Newells not to file their request for arbitration prior to May 25, 1995.

    
    

24. The evidence in this case, therefore, supports a conclusion that the Newells were "misled or lulled into inaction by [the Department]". The evidence also supports a conclusion that the Newells had consistently raised the same issues and sought the same remedy (arbitration) from April of 1994 until they filed their formal request for arbitration on September 28, 1995. These facts support a conclusion that this case is sufficiently similar to the facts in Machules for the doctrine of equitable tolling to apply.

    
    

25. One final issue, however, must be decided. The Department has suggested that, even if the facts in this case are sufficiently similar to those in Machules, the type of limitations period involved in this matter is "jurisdictional" and, therefore, distinguishable from the type of time limitation period involved in Machules.

    
    

26. The Department's argument is not persuasive. Nothing in Machules indicates that the time period involved in this proceeding should be treated differently from the time period involved in that case.

    
    

27. Although the Department recognizes that other Hearing Officers have recommended the acceptance of late filed requests for hearings, the Department has cited Final Orders in which the Department has concluded as a matter of law that the doctrine of equitable tolling does not apply. See paragraph 5 of the Department's proposed order. With due respect to the Department, the undersigned is required to make conclusions of law independent of the Department and, therefore, the Department's Final Orders are not considered binding on the undersigned.

28. Based upon the foregoing, it is concluded that the doctrine of equitable tolling should be applied in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department accepting the

request for arbitration filed by William and Margaret Newell.

DONE AND ENTERED this 22nd day of February, 1996, in Tallahassee Florida.

LARRY J. SARTIN, 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 22nd day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5938

The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Fahami did not file a proposed order.

The Newells' Proposed Findings of Fact

1. Accepted in 1.

2. Accepted in 2.

3. Accepted in 3.

4. Accepted in 5.

5. Accepted in 6-7.

6. Accepted in 8-9.

7. Accepted in 11-12.

8. Accepted in 14. 9-10 Accepted in 15.

1. Accepted in 16.

2. Hereby accepted.

3. Accepted in 17.

4. Hereby accepted.

5. Accepted in 19-20.

6. See 22.

7. Accepted in 26.

8. Accepted in 24.

9. Accepted in 25.

10. Accepted in 26.

11. Accepted in 27.

The Department's Proposed Findings of Fact

1. Accepted in 2.

2. Accepted in 26.

3. Accepted in 3 and 18.

4. Accepted in 18 and 24. 5-6 Accepted in 24.

1. Not supported by the weight of the evidence. Petitioners' testimony constitutes unrefutted, credible evidence that they made repair attempts priot to September 27, 1993.

2. See 14.

3. Not relevant. The publication was not offered into evidence. Therefore, the evidence failed to prove what information the publication included.

4. The significant phone conversation took place on April 8, 1994. While the phone bills were not offered into evidence, Petitioners' unrefutted, credible testimony was sufficient to prove that the phone call took place.

11 See 14-16.

12 Accepted in 15-17. 13-14 Hereby accepted.

1. Accepted in 23.

2. Not supported by the weight of the evidence. 17-18 Hereby accepted. But see 17 and 22.

1. Accepted in 26.

2. Accepted in 27.

COPIES FURNISHED:

John K. McPherson, Esquire 703 North Main Street Gainesville, Florida 32601

Rhonda Long Bass, Esquire

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

Bob Crawford, Commissioner Department of Agriculture and

Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, Esquire 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: 95-005938

Orders for Case No: 95-005938