STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS E. MARTUCCI, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1577

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Fort Lauderdale, Florida, on July 11, 1996, before Michael M. Parrish, a Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Louis E. Martucci, pro se

5100 North Springs Way

Coral Springs, Florida 33076

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Room 514 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be denied on the ground that the request was not timely filed with the Department of Agriculture and Consumer Services, Division of Consumer Services (hereinafter referred to as the "Department").

PRELIMINARY STATEMENT

By letter dated February 7, 1996, the Department notified Petitioner of its intention to deny his Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on the ground that the request had not been "submitted in a timely manner." Thereafter, Petitioner requested a formal administrative hearing on the propriety of the Department's proposed action. On March 27, 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 requested by the Petitioner.

The hearing was held on July 11, 1996. Three witnesses testified at the hearing; the Petitioner, the Petitioner's wife, and Mr. James Morrison, Senior

Consumer Complaint Analyst Supervisor with the Department. In addition to the testimony of the witnesses, a composite exhibit (the Department's Exhibit "A") consisting of six documents was offered and received in evidence.

At the close of the evidentiary portion of the formal hearing, the Hearing Officer advised the parties of their right to file post-hearing submittals and established a deadline of 10 days from the hearing within which to do so. The Department filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all proposed findings of fact submitted by the Department has been accepted and incorporated into the Findings of Fact which follow. The Petitioner did not submit any proposed findings of fact, but did file a letter summarizing his position. The Petitioner's letter has been carefully considered.

FINDINGS OF FACT

1. On May 20, 1993, the Petitioner took delivery of a new 1993 Volvo (the subject vehicle) from Gold Coast Volvo in Pompano Beach, Florida. The Petitioner put 24,000 miles on the subject vehicle on or before October 2, 1995.

   
   

2. The Petitioner had problems with the subject vehicle, the most serious of which were that on an intermittent basis the vehicle would stall at slow speeds or would hesitate and stall when acceleration was attempted. During the first 18 months following delivery of the subject vehicle, the dealer made several (more than three) unsuccessful attempts to repair the hesitation and stalling problems.

   
   

3. The Petitioner's initial Lemon Law rights period ended on November 19, 1994. As a result of the unsuccessful attempts to repair the hesitation and stalling problems during the initial Lemon Law rights period, the Petitioner was entitled to a six month extension of the Lemon Law rights period. That extension ended on May 19, 1995.

   
   

4. Consumers are entitled to file for relief under the subject statutory provisions for a period of six months after the expiration of the Lemon Law rights period. In this case, that filing period ended on November 19, 1995.

   
   

5. Prior to the expiration of the filing period that ended on November 19, 1995, the Petitioner had a copy of the pamphlet titled "Preserving Your Rights Under the Florida Lemon Law." The Petitioner attempted to comply with the instructions contained in that pamphlet.

   
   

6. Following the expiration of the initial Lemon Law rights period, and following the expiration of the six month extension of that period, the dealer continued to make attempts to repair the continuing intermittent problems and continued to make assurances that eventually the problems would be resolved. In reliance on these attempts and assurances, the Petitioner postponed taking action to enforce his rights under the Lemon Law. On January 10 or 11, 1996, representatives of Volvo told the Petitioner they were unable to fix the intermittent hesitation and stalling problems on the subject vehicle.

   
   

7. On January 15, 1996, the Petitioner filled out and signed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. The Petitioner sent the request for arbitration to the Department, where it was received on January 26, 1996. By letter dated February 7, 1996, the Department advised the Petitioner that it intended to deny his request for arbitration because his "application was not submitted in a timely manner."

8. Volvo does not have a certified procedure for the resolution of consumer complaints.

   
   

9. The Vehicle Defect Notification form and the Request for Arbitration form are separate documents with separate functions.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Petitioner has the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issues unless the burden is otherwise specifically established. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 2nd DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this case the Petitioner must show by a preponderance of the evidence either that he filed his request for arbitration in a timely manner or, if he filed late, that circumstances exist which excuse him from the usual consequences of late filing.

    
    

12. Chapter 681, Florida Statutes, is the Motor Vehicle Warranty Enforcement Act. Pursuant to Section 681.109(5), Florida Statutes, the Department 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 Department "may reject a dispute that it determines to be fraudulent or outside the scope of the board's authority."

    
    

13. 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:

    
    

    [T]he 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.

    
    

14. Section 681.104, Florida Statutes, provides the procedures consumers must follow to report nonconformities to the automobile manufacturers. 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.

    
    

15. Section 681.109, Florida Statutes, specifically provides that:

    
    

    (4) 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, which ever occurs later.

    
    

    Volvo has no state-certified procedure. Petitioner failed to request arbitration within 6 months after the expiration of the Lemon Law rights period.

    
    

16. The evidence submitted in this cause established that the 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.

    
    

17. The Petitioner appears to assert that he should be excused from the consequences of late filing because of his reliance on Volvo's continuing efforts to repair the subject vehicle and Volvo's continuing assurance that the problems would be resolved. Such reliance is not a sufficient basis for being excused from the consequences of late filing. See Mercedes Benz of North America, Inc. v. Kling, 549 So.2d 795 (Fla. 5th DCA 1989), in which the court rejected an essentially identical argument.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Department issue a Final Order in this case denying the Petitioner's Request for Arbitration as untimely.

DONE AND ENTERED this 22nd day of August, 1996, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 August, 1996.

COPIES FURNISHED:

Mr. Louis E. Martucci 5100 North Springs Way

Coral Springs, Florida 33076

Rhonda Long Bass, Esquire

Florida Department of Agriculture and Consumer Services

Office of the General Counsel Mayo Building, Room 515 Tallahassee, Florida 32399

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 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 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: 96-001577

Orders for Case No: 96-001577