STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2485

)

98 TRANS SERVICE, INC, a dissolved ) Florida Corporation, d/b/a AAL )

TRANSMISSION WORLD and MICHAEL )

CRISANTE, SR., Individually and as ) Owner and President of 98 TRANS ) SERVICE, INC., d/b/a AAL TRANSMISSION ) WORLD, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings (Division), held a formal hearing in this matter on July 19, 1996, in Winter Haven, Florida.

APPEARANCES

For Petitioner: Lawrence J. Davis, Esquire

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Respondents: John L. Woodard, III, Esquire

320 North Magnolia Avenue, Suite A-6 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Are the allegations of the Administrative Complaint true, and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

By Administrative Complaint dated April 19, 1996, Petitioner Department of Agriculture and Consumer Services (Department) alleges that Respondents have violated the provisions of the Florida Motor Vehicle Repair Act (Sections 559.901 - 559.9221, Florida Statutes). Respondents requested a formal hearing. By a letter dated May 21, 1996, the Department forwarded the matter to the Division for the assignment of an Administrative Law Judge (Hearing Officer) and the conduct of a hearing.

At the hearing, the Department presented the testimony of Lee W. Baker, Peggy Graham, Evelyn Smith, Robert Weiss, Mary Hurst Curry, Dennis Leonis, Heidi

B. Steelman, Alvie Steelman, Clyde Garretson, Daryl Gargus, Edgar Pickett and Troy Spruill. Department's exhibits 1 through 25 were received as evidence. Respondents presented the testimony of Michael Crisante, Sr. Respondents' exhibit one was received as evidence. Sections 559.901l through 559.9221, Florida Statutes, referred to as the Florida Motor Vehicle Repair Act, was officially recognized.

A transcript of this proceeding was filed with the Division on August 5, 1996. By letter dated August 20, 1996, Respondents requested an extension of time to file proposed findings of fact and conclusions of law which was unopposed by Respondent. The request was treated as a motion and granted with the understanding that any time constraint imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their proposed findings of fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. The Department is the agency of the State of Florida responsible for the enforcement of the Florida Motor Vehicle Repair Act.

   
   

2. Respondent 98 Trans Service Inc. was, at pertinent times, a corporation doing business as AAL Transmission World.

   
   

3. Respondent Michael Crisante, Sr. is the president and owner of 98 Trans Service, Inc. d/b/a AAL Transmission World.

   
   

4. Respondent 98 Trans Service, Inc. d/b/a AAL Transmission World (AAL) is located at 5526 North Highway 98, Lakeland, Florida.

   
   

5. AAL is registered with the Department as a motor vehicle repair shop that does transmission repair and has been assigned registration number MV-17033 by the Department.

   
   

6. AAL advertised to the public a $14.95 coupon special for a multi-point transmission tune-up which included new fluid, clean pan, clean screen, replace gasket, adjust band and linkage, road test, check for leaks and check u-joints.

   
   

7. Several witnesses testified that the reason they brought their vehicles to AAL was because they had seen the advertisement for the $14.95 special.

   
   

8. On or about May 4, 1993, Lee Baker took his 1982 American Eagle Sport station wagon 4 wheel drive to AAL to be serviced using the $14.95 coupon. Baker was not experiencing any problem with the transmission but was concerned about a particular noise he was hearing while driving the vehicle. Baker left the vehicle with an AAL employee with instructions to service the vehicle using the $14.95 coupon and that if there was any problem to call him.

   
   

9. Late the next day someone from AAL called Baker to advise him that there was a problem with the transmission. The next morning Baker went to AAL and was shown some debris (steel shavings, etc.) that supposedly came from his transmission and was told that the transmission needed an overhaul. Baker was

not given a repair estimate or disclosure statement form at this time. Baker did not give AAL a written waiver of his right to receive a written estimate.

10 Baker went home, and after discussing the matter with his wife went back to AAL to pick up the vehicle, but was told by AAL that the vehicle was unsafe to drive. After some discussion, AAL told Baker it would cost $300 to overhaul the transmission, and that the transmission would be in first class condition after overhaul. With this assurance from AAL, Baker authorized AAL to overhaul the transmission. Again, Baker was not given a written repair estimate or disclosure statement by AAL.

1. Two days later AAL called Baker and advised him that the torque converter needed an overhaul. After some discussion with AAL about why the torque converter needed an overhaul, Baker, still somewhat confused, told AAL that he would not authorize the torque converter overhaul but to call him when the car was ready. Again, Baker was not given a written repair estimate or disclosure statement by AAL and had no idea what AAL was going to charge for the repair.

   
   

2. When Baker went to pick up his vehicle he was presented with a bill by AAL for $697.48 which indicated, along with some minor repairs, that AAL had install a reconditioned automatic transmission, a rebuilt torque converter and replaced the right front axle. The bill, which Baker paid, came to $697.48. Other than this summary repair bill, Baker did not receive a repair estimate or disclosure statement in writing from AAL before AAL proceeded to repair his vehicle. Likewise, Baker has never received from AAL an itemized description of all labor, parts, and merchandise supplied and the costs for such items.

   
   

3. On or about September 6, 1994, Peggy Graham took her 1986 Buick to AAL to have the transmission serviced with the $14.95 coupon.

   
   

4. Graham had the Buick serviced on a regular basis and the oil changed every 3,000 miles. Prior to taking the Buick to AAL on September 6, 1994 to have the transmission serviced, Graham was not having any trouble with the car or the car's transmission. In fact, Graham had just recently driven the car 4,000 miles while on vacation.

   
   

5. John Waterman, Service Manager for AAL, had the transmission pan pulled outside the presence of Graham. Thereafter, Graham was shown some alleged metal shavings that supposedly was in the pan of the transmission when it was pulled, and was told that the car was unsafe to drive.

   
   

6. Graham signed a repair estimate and disclosure statement form to the effect that AAL was to give her a repair estimate in writing if the repair costs exceeded $50.

   
   

7. Although Graham's final bill on repairing the transmission in the Buick was $901, she was never given a repair estimate even though the amount exceeded the $50 she had authorized. Likewise, Graham was never given an itemized description of all labor, parts, and merchandise supplied and the costs for such items.

   
   

8. On February 18, 1994, Evelyn Smith took her 1987 Oldsmobile to AAL to have the fluid changed using the $14.95 coupon.

   
   

9. Smith purchased the car in August, 1993, and had experienced no problems with the car or the transmission prior to taking the car to AAL. In

   fact, the information filled in by Smith on the disclosure statement (Department's exhibit no. 11) on February 18, 1994, indicates that she brought the car in for service and was experiencing no problems with the transmission. Also, the car had been serviced about a month earlier, and there was no indication of any problem with the transmission at that time.

   
   

10. Dean Curtis, Service Manager for AAL, test drove the Smith vehicle and advised Smith that there was a problem when shifting from first gear to second gear. Smith had never experienced this problem before with the car's transmission. Curtis then had the transmission pan pulled outside the presence of Smith. Thereafter, Smith was shown some alleged metal shavings that supposedly was in the transmission pan at the time it was pulled, and was also told that the transmission fluid had a burnt smell.

    
    

11. Based on her conversation with Curtis, Smith was under the impression that AAL could dismantle the transmission, determine the problem and repair the transmission for $262. With this understanding, Smith signed a repair estimate and disclosure statement form (Department's exhibit no. 11) indicating that she did not require a written estimate so long as the repair costs did not exceed

    $262, and left the car at AAL for the transmission to be repaired. Although this repair estimate and disclosure statement form (Department's exhibit no. 11) has what might be considered an estimate of labor and parts totalling $1,282.11 on the back, this information was not on the form at the time Smith signed on February 18, 1994. Later, AAL called Smith to advise her that it would cost

    $1,209.54 to repair the transmission and that if she did not want it repaired that there would be a charge of $262 for the diagnostic work and for reassembling the transmission. Although Smith had understood that the $262 would be the cost of repairs, she authorized AAL to repair the transmission at a cost of $1,209.54, because otherwise she would have wasted the $262.

    Subsequently, AAL repaired Smith's transmission at a cost of $1,264.69, which Smith paid.

    
    

12. On October 13, 1993, Robert Weiss took his 1990 Jeep Cherokee Laredo to AAL to be serviced using the $14.95 coupon. Weiss's only reason for going to AAL was to have the Jeep's transmission serviced using the coupon.

    
    

13. Prior to taking his Jeep to AAL for service, Weiss regularly serviced his Jeep and changed the engine oil every six thousand miles. Weiss had never experienced any problem with the Jeep's transmission prior to taking the Jeep to AAL and had never had to have the Jeep's transmission repaired.

    
    

14. Weiss left the Jeep at AAL for the service set out in the coupon while he went shopping. Upon returning from shopping, Weiss was informed by an AAL employee that the Jeep's transmission pan contained metal shavings and that the fluid had a burnt smell. Weiss was shown the alleged metal shavings that supposedly were in the Jeep's transmission pan when the pan was removed. Weiss was not present when the transmission pan was removed from the Jeep's transmission. Weiss was informed by this AAL employee that the presence of metal shavings and the burnt smell of the fluid were signs of serious problems, and if not fixed could result in the transmission falling apart. Based upon these representations, Weiss agreed to have the transmission repaired.

    
    

15. Weiss was advised verbally as to the cost of the transmission repair but did not sign a waiver of the requirement for a written repair estimate. Weiss did not receive a written repair estimate and did not sign any thing authorizing the repair of the transmission. Weiss did not receive an itemized

    description of all labor, parts, and merchandise supplied and the costs of such items from AAL.

    
    

16. The only document received by Weiss from AAL was a copy of a repair estimate and disclosure form with Weiss' signature on the disclosure statement with no date and with none of choices checked. Weiss' signature does not appear on the authorization for inspection service section or the authorization for repair section. However, Weiss did sign the completion certification section. The final bill in the amount of $1,482.32 was paid by Weiss.

    
    

17. On May 25, 1994, Mary Curry took her 1991 Buick Regal to AAL to have the fluid changed using the $14.95 coupon. Curry purchased the Buick in September, 1993.

    
    

18. Curry had experienced no problems (no leaking, no slipping or no locking up) with the transmission prior to taking the car to AAL on May 25, 1994. The Buick's odometer showed a reading of approximately 35,000 miles.

    
    

19. An employee of AAL took Curry's car back in the service area for service. Subsequently, Curry was shown a transmission pan with metal shavings and a bolt which supposedly was in the Buick's transmission pan when it was removed. Curry was not present when the transmission pan was removed by AAL.

    
    

20. Curry was advised by AAL that it would cost $262 to remove, dismantle, inspect parts, reassemble and install transmission. Curry agreed to this and gave AAL written authorization to perform such work. Curry understood that she would be required to pay the $262 even if there was no repair required.

    
    

21. After AAL dismantled the transmission, Curry was advised verbally that it would cost approximately $1,000 to repair the transmission. Curry did not waive the requirement for a written estimate. However, AAL did not give Curry a written estimate of the cost of the repairs. The costs ($1,398.95) set out on the back of Department's exhibit no. 15 were not there at the time Curry signed the front of that document authorizing AAL to dismantle, inspect and reassemble the transmission. Curry did not sign the authorization for repairs section on the front of the repair estimate and disclosure form.

    
    

22. The final bill for the repair of the transmission was $1,336.45, which Curry paid.

    
    

23. Sometime in June, 1995, Dennis Leonis took his 1968 Chevrolet Monte Carlo to AAL to have the transmission fluid changed. Leonis was the original owner of the car which had 200,000 miles on the odometer, but the car was in excellent working condition, with no transmission problems. AAL did not test drive the vehicle, but while the car was at AAL, and out of the presence of Leonis, the transmission pan was pulled. Subsequently, the manager advised Leonis that the pan contained debris (metal shavings) when it was pulled and that the transmission was falling apart. The manager quoted a price of $2,000 to repair the transmission. Dennis was told by the AAL employee that removed the pan that there was nothing wrong with the transmission. Leonis had the transmission pan, with the old fluid, placed back on the transmission and drove to another transmission repair shop to have the fluid changed. Leonis changed the transmission fluid every other week for a total of four times. Leonis drove the car for approximately 30,000 to 40,000 miles without any problems with the transmission.

24. Heidi and Alvie Steelman had a 1983 Buick Regal that had developed a leak in the transmission. On November 23, 1994, the Steelmans took their Buick to AAL for the express purpose of having AAL determine the source of the leak. AAL found the source of the leak to be the O-ring where the dipstick enters the transmission but suggested that the Steelmans allow AAL to change the filter and fluid while in the shop at a cost of $14.00. The Steelmans agreed to have this service but did not agree to have AAL disassemble the transmission.

    
    

25. Subsequently, and out of the presence of the Steelmans, AAL pulled the transmission pan on the Steelmans' Buick and showed them some alleged shavings that supposedly was in the transmission pan when it was pulled. AAL advised the Steelmans that the Buick needed a rebuilt transmission. The Steelmans advised AAL that they could not afford a rebuilt transmission and to reassemble the old transmission so they could take the car home. At this point, AAL advised the Steelmans that it would cost $185.00 to reassemble and if they didn't pay that the car would be moved to the AAL lot with the disassembled transmission.

    
    

26. AAL advised the Steelmans that AAL could secure a loan for them to pay for the work. Alvie Steelman, assuming he was signing a request for a loan, signed a repair estimate authorization and disclosure statement that at the time of signing did not contain an estimate of the costs of repairs or costs of parts.

    
    

27. After AAL's assurance to the Steelmans that a loan would be forthcoming, the Steelmans gave AAL permission to repair the transmission. AAL was unable to secure a loan for the Steelmans.

    
    

28. The final bill was $583 which the Steelmans paid with funds borrowed from friends and family.

    
    

29. AAL provided the Steelmans with a repair estimate and disclosure form at the time they paid for the repairs. However, this form did not itemize the costs for labor and parts. AAL did not provide the Steelmans with a itemized description of all labor, parts, and merchandise supplied and the costs of such items. AAL did not provide the Steelmans with any paper work until they had paid for the repairs.

    
    

30. On June 9, 1995, Clyde Garretson drove his 1983 Chevrolet Truck to AAL. The truck could not be driven in drive gear but could be driven in second gear. Garretson left the truck with AAL with verbal instructions to check out the problem. AAL did not advise Garretson at this time as to the cost for diagnosing the problem and did not present Garretson with a repair estimate and disclosure form to be signed showing the estimated cost of diagnostic work.

41 Later on that day Garretson was advised by AAL, through his wife, that it would cost approximately $950 to fix the transmission. At first, Garretson decided not to have AAL fix the transmission, but when informed by AAL, through his wife, that there would be charge of $295 for diagnostic work, Garretson agreed, through his wife, to have the transmission repaired. Again, AAL did not prepare and present to Garretson a repair estimate for his approval. Furthermore, Garretson did not waive the require for a written repair estimate. The only paper work received by Garretson was the final bill for $1,046.22 which was not an itemized description of all labor, parts, and merchandise supplied and the costs for such items.

1. On June 23, 1995, Daryl Gargus had his 1988 Dodge Ram D50 taken to AAL because the transmission was locked in gear. Gargus did not at any time receive

   an invoice with an itemized description of all labor, parts, and merchandise supplied and the costs for such items.

   
   

2. Furthermore, it was later discovered by Gargus that a new clutch assembly and clutch disc that had been installed in the truck by Gargus had been removed and replaced by used parts. Gargus was told by AAL that the clutch had not been replaced. Also, a practically new direct drive starter that Gargus had observed prior to taking the truck to AAL had been removed and replaced by a used starter. Gargus was not told by AAL that the starter had been replaced.

   
   

3. Edgar Pickett, Jr. and his son, Edgar Pickett, III, took the son's 1984 Fleetwood Cadillac to AAL for service and because it was slipping. The Picketts left the car with AAL. Edgar Pickett Jr. testified that he signed a repair estimate with a disclosure form on July 3, 1995, which required AAL to provide an estimate of repairs should the estimate of repairs exceeded $50. However, it appears that the repair estimate and disclosure form was signed by Edgar Pickett, Jr. on July 5, 1995, the date the car was picked up by Edgar Pickett, Jr. after being repaired by AAL. Furthermore, it appears that Edgar Pickett, III signed a repair estimate and disclosure form on June 30, 1995, authorizing diagnostic work and repair work on the transmission. Also, this form (Respondent's exhibit 1) shows an itemized statement of parts, labor and the costs of such items necessary for the repair of the transmission.

   
   

4. Troy Spruill took his Dodge Dynasty to AAL for a $14.95 service. AAL test drove Spruill's car and told Spruill that the transmission was slipping from first to second, and that it might have to be rebuilt. Spruill left the car at AAL and went home. Later, AAL called Spruill and gave him a verbal estimate over the telephone of $1,122.83 to repair the transmission. The estimate included a CV joint. Subsequently, Spruill gave AAL authorization to make the repairs covered in the estimate which included the transmission and the CV joint. In fact, on July 19, 1995 Spruill signed a estimate of repairs and disclosure form authorizing the repair so long as the cost did not exceed

   $1,190.20 which was the cost of the repairs plus tax. Spruill paid AAL

   $1,190.20 and received a copy of the repair estimate and disclosure form. This form does not show an itemized description of all labor, parts and merchandise supplied and the costs of such items. However, Spruill was verbally furnished this information over the telephone prior to authorizing the repair on July 19, 1995.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Sections 120.57(1) and 559.921(4), Florida Statutes.

   
   

6. Section 559.921(4), Florida Statutes, empowers the Department to revoke, suspend or otherwise discipline the registration of a motor vehicle repair shop by imposing an administrative fine when the Department finds, among other things, that the motor vehicle repair shop has established a pattern of failing to comply with or violating the provisions of the Florida Motor Vehicle Repair Act, or the motor vehicle repair shop has intentionally defrauded the public through dishonest or deceptive means.

   
   

7. The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue. Florida Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). Therefore, the Department has the burden of presenting evidence that Respondent

   has violated the provision of Sections 559.901 through 559.9221, Florida Statutes. Furthermore, the Department has the burden of presenting its proof by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); and Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So.2d 932 (Fla. 1996).

   
   

8. The Florida Motor Vehicle Act (Sections 559.901 - 559.9221, Florida Statutes) applies to all motor vehicle repair shops in Florida. The Respondents in this case are subject to the provisions of the Act.

   
   

9. Section 559.905(1), Florida Statutes, provides that when any customer requests that a motor vehicle repair shop perform repair work in excess of $50 on a motor vehicle, the shop must prepare a written repair estimate, setting forth the estimated cost of diagnostic and repair work before commencing the work or repair. The specific contents of the written repair estimate statement are identified in this section, and in relevant part, include odometer readings, proposed work completion dates, estimated costs, how such costs are calculated, work guarantees, and whether replaced parts should be delivered to the customer.

   
   

10. Section 559.905(2), Florida Statutes, requires that a written repair estimate include a disclosure form advising the customer of the right to a written estimate and providing for signed notation indicating the customer's exercise or waiver of the right to the written estimate.

    
    

11. Section 559.905(4), Florida Statutes, requires that a copy of the written repair estimate and disclosure form be provided to the customer prior to the commencement of repair work.

12. In pertinent part, Section 559.911, Florida Statutes, provides: 559.911 Invoice required of motor vehicle

    repair shop. -- The motor vehicle repair shop shall provide each customer, upon completion of any repair, with a legible copy of an invoice for such repair. The invoice may be provided on the same form as

    the written repair estimate and shall include the following information:

    1. The current date and odometer reading of the motor vehicle.

       * * *

       (3) An itemized description of all labor, parts, and merchandise supplied and the costs thereof, indicating what is supplied to the customer without cost or a reduced cost because of a shop or manufacturer's warranty.

13. In relevant part, Section 559.920, Florida Statutes, provides: 559.920 Unlawful acts and practices -- It

    shall be a violation of this act to for any motor vehicle repair shop or employee thereof to

    * * *

    1. Make or charge for repairs which have not been expressly or impliedly authorized

       by the customer;

    2. Misrepresent that certain parts and repairs are necessary to repair a vehicle;

    * * *

    (5) Misrepresent that a vehicle being inspected or diagnosed is in a dangerous condition or that the customer's continued use of the vehicle may be harmful or cause great damage to the vehicle;

    * * *

    (9) Make false promises of a character likely to influence, persuade, or induce a customer to authorize the repair, service, or maintenance of a motor vehicle;

    * * *

    (11) Cause or allow a customer to sign any work order that does not state the repairs requested by the customer or the automobile's odometer reading at the time of repair;

    * * *

    (17) Perform any other act that is a violation of this part or that constitutes fraud or misrepresentation.

    
    

14. It is clear from the evidence, as set out in the findings of fact, that the Respondents have not only violated the aforementioned statutes, but had established a pattern of violating the aforementioned statutes. The Department has met its burden of proving by clear and convincing evidence, not only the violations of the aforementioned statutes, but that the Respondents had established a pattern of violating the aforementioned statutes.

RECOMMENDATION

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

Recommended that the Department of Agriculture and Consumer Services enter a final order revoking the registration (MV-17033) issued to Respondents' motor vehicle repair shop.

RECOMMENDED this 24th day of October, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-66847

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1996.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and

Consumer Services

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

Lawrence J. Davis, Esquire Department of Agriculture and

Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

John L. Woodard, III, Esquire

320 North Magnolia Avenue, Suite A-6 Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002485

Orders for Case No: 96-002485