STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM COYLE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0744

) DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on April 29, 1996, in Tampa, Florida. The proceeding was conducted by videoconference.

APPEARANCES

For Petitioner: William Coyle, pro se

2403 Vandervort Road

Lutz, Florida 33549

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

This issue on this case is whether the Petitioner filed a timely Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

PRELIMINARY STATEMENT

On December 12, 1995, William Coyle filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated December 28, 1995, the Department of Agriculture and Consumer Services notified Mr. Coyle that his request "was not submitted in a timely manner and must be rejected for potential relief under the provisions of the Lemon Law." The letter advised Mr. Coyle of his right to request a hearing regarding the denial. Mr. Coyle requested a formal hearing. The Department forwarded the request to the Division of Administrative Hearings which scheduled the proceeding.

At the hearing, Mr. Coyle testified on his own behalf and had three exhibits admitted into evidence. The Department presented the testimony of one witness and had one exhibit admitted into evidence.

No transcript of the hearing was filed. The Respondent filed proposed a recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. On December 30, 1993, William Coyle took delivery of a new 1994 Pontiac Bonneville. At the time the car was delivered to Mr. Coyle, the odometer indicated that the vehicle had been driven five miles.

   
   

2. Soon after taking delivery of the vehicle, Mr. Coyle began experiencing problems with the car, including failure of the car ignition on several occasions, and a malfunctioning oil pressure indicator.

   
   

3. On repeated occasions, Mr. Coyle returned the car to the dealer for repair. According to Mr. Coyle, the dealer was unable to fix the problems with the car.

   
   

4. On or about July 7, 1995, Mr. Coyle filed a Motor Vehicle Defect Notification form. Although Mr. Coyle mistakenly dated the form as "7/7/94," the evidence establishes that the form was actually filed in 1995.

   
   

5. Filing a Motor Vehicle Defect Notification form triggers a final opportunity for a vehicle manufacturer to correct the alleged defect. One copy of the notification form goes to the manufacturer. A second copy of the form goes to the Office of the Florida Attorney General.

   
   

6. After the Motor Vehicle Defect Notification form was filed, the vehicle apparently was not repaired to Mr. Coyle's satisfaction.

   
   

7. As set forth in Chapter 681, Florida Statutes, a consumer's rights under the Lemon Law extend for 18 months or 24,000 miles, whichever occurs first, and may possibly be extended an additional 6 months for those problems which have not been corrected in the initial period.

   
   

8. Based on the repair records, Mr. Coyle's vehicle had been driven in excess of 24,000 miles by October 7, 1994. Assuming that Mr. Coyle was entitled to a six month deadline extension as provided by law, Mr. Coyle's Lemon Law rights expired on April 7, 1995.

   
   

9. The applicable statute provides a period of six months following the expiration of the Lemon Law rights period by which a consumer must file a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

   
   

10. Mr. Coyle's Request for Arbitration was required to be filed not later than October 7, 1995.

    
    

11. Mr. Coyle filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on December 12, 1995.

    
    

12. By letter dated December 28, 1995, Mr. Coyle was notified by the Department of Agriculture and Consumer Services, that his request for arbitration was being rejected.

    
    

13. As grounds for the rejection, the letter states:

    The lemon law rights period, as defined by Chapter 681, F.S., is 18 months or 24,000 miles, whichever occurs first, and may possibly be extended an additional 6 months for those problems which have not been corrected in the initial rights period. The Request for Arbit- ration should be received by this office with- in 6 months of the conclusion of the lemon law rights period or any extended time allowances. The attached Invoice number 6946, dated 10-07- 94, reflects that the mileage at the time of that repair to be 27,494. Since 24,000 miles apparently were exceeded prior to 10-07-94, your initial rights period ended at some point before that date. If a 6 month extension was

    allowed following the end of your rights period, the expiration of that extension would have occurred prior to 04-07-95. This would require that your Request for Arbitration be received

    by this office prior to October 07, 1995. Your application was signed December 05, 1995, post- marked 12-07-95, and received by this office

    12-12-95. Reviewing all these dates, it is concluded that your application was not sub- mitted in a timely manner and must be rejected....

    
    

14. The evidence establishes that Mr. Coyle's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board was not filed by the proper deadline and must be rejected.

    
    

15. Mr. Coyle asserts that he filed a Motor Vehicle Defect Notification on or about July 7, 1995, and that such notice is sufficient to qualify as a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

    
    

16. A Motor Vehicle Defect Notification is a separate document from a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. The forms are filed with different agencies. The filing of a Motor Vehicle Defect Notification does not constitute a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. In this case, the burden is on the Petitioner to establish entitlement to proceed to arbitration. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.

    
    

19. The "Lemon Law rights period" means the period ending 18 months after the date of 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.

20. Section 681.109(4), Florida Statutes, provides:

    
    

    A consumer must request arbitration before the board 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.

    
    

21. The "board" is the Florida New Motor Vehicle Arbitration Board. Section 681.102(2), Florida Statutes.

    
    

22. Section 681.109(5), Florida Statutes, in relevant part provides:

    
    

    ...The consumer's request for arbitration be- fore the board shall be made on a form pre- scribed by the Department of Legal Affairs....

    
    

23. The "Request for Arbitration by the Florida New Motor Vehicle Arbitration Board" form has been adopted by the Florida Department of Legal Affairs and is the required form for use in making an arbitration request.

    
    

24. Mr. Coyle asserts that he filed his request for arbitration on July 7, 1995. The evidence establishes Mr. Coyle filed a Motor Vehicle Defect Notification form on or about July 7, 1995. This document is addressed at section 681.104(1), Florida Statutes, and serves to provide a vehicle manufacturer with a final opportunity to correct the alleged defect.

    
    

25. The Motor Vehicle Defect Notification does not constitute a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. Mr. Coyle's Request for Arbitration was not filed on a timely basis and must be denied.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board.

DONE and ENTERED this 31st day of May, 1996 in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM, 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 31st day of May 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0744

The Petitioner did not file proposed findings of fact. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Respondent.

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1, 10. Rejected, unnecessary.

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

William Coyle, pro se 2403 Vandervort Road

Lutz, Florida 33549

Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services

Mayo Building, Room 515 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: 96-000744

Orders for Case No: 96-000744