STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NIVRKA ZALAZAR, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0037

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 21, 1996, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nivrka Zalazar, pro se

7754 Miramar Parkway

Miramar, Florida 33023

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

Whether Petitioner's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be denied by the Department of Agriculture and Consumer Services, Division of Consumer Services (hereinafter referred to as the "Department") for the reason stated in the Department's November 9, 1995, letter to Petitioner?

PRELIMINARY STATEMENT

By letter dated November 9, 1995, the Department notified Petitioner of its intention to deny her Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on the ground that her "vehicle was not purchased new in Florida." Thereafter, Petitioner requested a formal administrative hearing on the propriety of the Department's proposed action. On January 5, 1996, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.

The hearing was held on March 21, 1996. Two witnesses testified at the hearing: Petitioner; and James Morrison, a Senior Consumer Complaint

Supervisor with the Department. In addition to the testimony of these two witnesses, five exhibits (Petitioner's Exhibits 1, 2, 3 and 5 and Respondent's Exhibits A though C) were received into evidence. Another exhibit, Petitioner's Exhibit 4, was offered into evidence, but was rejected by the Hearing Officer.

At the close of the evidentiary portion of the hearing on March 21, 1996, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline, April 1, 1996, for the filing of these post-hearing submittals. On April 1, 1996, the Department filed a proposed recommended order in the instant case. The Department's proposed recommended order has been carefully considered by the Hearing Officer. The "proposed findings of fact" set forth in the Department's proposed recommended order are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. On or about October 1, 1994, Petitioner purchased from Triangle Auto Center Inc., d/b/a Toyota of Hollywood (hereinafter referred to as the "Dealer"), a Broward County, Florida automobile dealer, a used 1994 Chevrolet Cavalier, which had been driven 7,726 miles.

   
   

2. Petitioner had been told by the Dealer, before the purchase, that the vehicle had been used by its previous owner "to drive documents to the airport."

   
   

3. At the time Petitioner purchased the vehicle, it was still under factory warranty.

   
   

4. Thereafter, various problems developed with the vehicle, the worst and most persistent of which involved the vehicle's tires and brakes. These problems have yet to be completely remedied.

   
   

5. Petitioner reported the problems she was experiencing with her vehicle to the Dealer.

   
   

6. The Dealer told Petitioner that it was unable to help her.

   
   

7. At the Dealer's suggestion, Petitioner telephoned and wrote letters of complaint to the manufacturer of the vehicle.

   
   

8. The manufacturer advised Petitioner to file a complaint/arbitration request with the Better Business Bureau's Auto Line program (hereinafter referred to as the "BBB program"), an arbitration program in which the manufacturer participates.

   
   

9. Petitioner followed the advice she was given and filed a complaint/arbitration request with the BBB program.

   
   

10. On September 29, 1995, the BBB program sent Petitioner a letter notifying her that the arbitrator who had heard her case had determined that she was not entitled to any relief from the manufacturer.

    
    

11. The letter further advised Petitioner of the following:

    The enclosed decision is not binding on the consumer. The consumer may reject this decision and, if eligible, may pursue arbitration with the Florida New Vehicle Arbitration Board administered by the Office of the Attorney

    General. To obtain information about eligibility for the state run program, the consumer should contact the Division of Consumer Services' Lemon Law hotline at 1-800-321-5366. Please be advised that Section 681.109(4), F.S., provides that the consumer must file the request for arbitration within 6 months after the expiration of the

    Lemon Law rights period, or within 30 days after the final action of a certified dispute-settlement procedure, whichever occurs later.

    
    

12. Petitioner rejected the arbitrator's decision.

    
    

13. On October 23, 1995, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

    
    

14. By letter dated November 9, 1995, the Department advised Petitioner that "a determination ha[d] been made in accordance with Section 681.109 Florida Statutes to reject [her request because her] vehicle was not purchased new in Florida."

    
    

    CONCLUSIONS OF LAW

    
    

15. Chapter 681, Florida Statutes, is the Motor Vehicle Warranty Enforcement Act (hereinafter referred to as the "Act"). Section 681.10, Fla. Stat.

    
    

16. The Act provides "statutory procedures whereby a consumer may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the [manufacturer's] warranty." Section 681.101, Fla. Stat.

    
    

17. The term "motor vehicle," as used in Section 681.101, Florida Statutes, and elsewhere in the Act, is defined in Section 681.102(14), Florida Statutes, as follows:

    
    

    "Motor vehicle" means a new vehicle, propelled by power other than muscular power, which is sold in this state to transport persons or property, and includes a vehicle used as a demonstrator or leased vehicle if a manu- facturer's warranty was issued as a condition of sale, or the lessee is responsible for repairs, but does not include vehicles run only upon tracks, off road vehicles, trucks over 10,000 pounds gross vehicle weight, the living facilities of recreational vehicles, motorcycles, or mopeds.

    
    

    A "new vehicle," as that term is used in Section 681.102(14), Florida Statutes, is a vehicle "the equitable or legal title to which has never been transferred

    by a manufacturer, distributor, importer, or dealer to an ultimate purchaser." Section 320.60(10), Fla. Stat. 1/

    
    

18. Among other things, the Act gives the purchaser of an allegedly defective "motor vehicle," as that term is defined in Section 681.102(14), Florida Statutes, the right to request arbitration of his or her unresolved claim before the Florida New Motor Vehicle Board (hereinafter referred to as the "Board"). Sections 681.109 and 681.1095, Fla. Stat. 2/

    
    

19. Under the Act, the Department is responsible for "screen[ing] all requests for arbitration before the [B]oard to determine eligibility" and "forward[ing] to the [B]oard all disputes that [it] determines are potentially entitled to relief." Section 681.109(5), Fla. Stat.

    
    

20. Petitioner has filed such a request for arbitration in the instant case. In her request, she has asked that the Board resolve a dispute between her and the manufacturer of a vehicle that she purchased, used, in October of 1994, from Toyota of Hollywood.

    
    

21. Because the dispute that Petitioner seeks to have submitted to the Board involves a vehicle that was not purchased "new" and therefore is not a "motor vehicle," within the meaning of the Act, the dispute is not eligible for arbitration. See In re the Matter of: Mr. Benjamin Lawrence, DACS Case No. 95- 027FI (DACS January 17, 1995)(Final Order). 3/

    
    

22. Accordingly, the Department should deny Petitioner's request that the dispute be submitted to the Board for arbitration.

RECOMMENDATION

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

RECOMMENDED that the Department enter a final order denying Petitioner's request for arbitration.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of April, 1996.

STUART M. LERNER, 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 3rd day of April, 1996.

ENDNOTES

1/ The provisions of Sections 320.60(10) and 681.102(14), Florida Statutes, should be read in pari materia. See Crane Rental of Orlando, Inc., v. Hausman,

518 So.2d 395, 397 (Fla. 5th DCA 1987); Prinzo v. State Farm Mutual Automobile Insurance Company, 465 So.2d 1364, 1365 (Fla. 4th DCA 1985).

2/ If a manufacturer has a procedure (hereinafter referred to as a "certified procedure"), which the Department has certified as substantially complying with federal law and the provisions of the Act and the rules adopted thereunder, and if the manufacturer has informed the consumer of how and where to file a claim under the certified procedure, the consumer may request arbitration before the Board "only if the consumer has first resorted to such [certified] procedure." Section 681.108(1), Fla. Stat.

3/ At the outset of the final hearing, at the Department's request and without objection from Petitioner, the Hearing Officer took official recognition of the final order issued in the Lawrence case.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 96-0037

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order:

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2-3. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

4-5. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Accepted and incorporated in substance.

COPIES FURNISHED:

Nivrka Zalazar

7754 Miaramar Parkway

Miramar, Florida 33023

Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Honorable Bob Crawford, Commissioner 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 of time 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: 96-000037

Orders for Case No: 96-000037