STATE OFFLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH WILLIAMSON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4591

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on December 17, 1996, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth Williamson, pro se

3733 Meridian Place

Land O’Lakes, Florida 34639

For Respondent: Rhonda L. Bass, Esquire

Florida Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Petitioner is entitled to arbitration under the Florida Lemon Law, concerning his 1994 Ford Explorer, purchased on May 17, 1994.

PRELIMINARY MATTERS

By Request for Arbitration signed by Petitioner on June 5, 1996, and received in the Department of Agriculture and Consumer Services, (DOA), on July 24, 1996, Petitioner seeks arbitration with Ford Motor Company before Florida’s New Motor Vehicle Arbitration Board, (Board). By letter dated July 29, 1996, Lark Daughtry, a senior consumer complaint analyst with the DOA, advised the Petitioner that his Request for Arbitration, (RFA), was deemed untimely. Thereafter, Petitioner requested formal hearing and this hearing ensued.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Melinda M. Williamson, his wife.

Petitioner did not submit any exhibits. Respondent presented the testimony of James D. Morrison, a senior consumer complaint analyst supervisor, and introduced Respondent’s Exhibits A through C.

No transcript of the proceedings was furnished. Subsequent to the hearing, only counsel for the Respondent submitted Proposed Findings of Fact which were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, DOA, was the state agency responsible for the receipt, evaluation and, when appropriate, forwarding of consumer

   RFAs to the Florida New Motor Vehicle Arbitration Board conducted by the Attorney General of the State of Florida.

2. On May 17, 1994, Petitioner, Kenneth P. Williamson, purchased a new 1994 Ford Explorer sport utility vehicle from Gator Ford in Tampa, Florida. Almost from the beginning, Petitioner experienced a vibration of the entire vehicle when a speed of more than fifty miles per hour was achieved. After several repair attempts, when the Petitioner had driven the vehicle for 12,000 miles without any relief from the problem, he took it back to Gator Ford for repairs. Gator’s efforts did not detect the cause of the problem or correct it. At some later point in time, when sought, no paper work relating to that service call could be found at Gator Ford.

3. Thereafter, however, Petitioner took the vehicle to Carl Flammer Ford in Tarpon Springs for the same problem. Neither the problem’s cause nor a solution to it could be found. On or about June 23, 1995, the odometer on the vehicle in question indicated it had been driven 24,990 miles. Based on that fact, it is found that as of June 22, 1995, Petitioner had exceeded 24,000 miles of operation in the vehicle. This was recognized by Petitioner in his answer to question 17C on the RFA, when he indicated he had reached 24,000 miles on his vehicle in “5/95 OR 6/95.”

4. On May 30, 1996, when the vehicle had 37,800 miles on it, Petitioner forwarded a motor Vehicle Defect Notification Form to Ford Motor Company advising of the vibration problem.

   That notice, sent by certified mail, was received by Ford on June 5, 1996.

5. Petitioner claims, and Respondent admits, that his vehicle was out of service at least 21 days due to one or more substantial defects, and that there have been three or more repair attempts made to correct the same defect or condition. Because of these factors, and because Petitioner filed a notice of non-conformity with the manufacturer, albeit late in the proceedings, the DOA considered Petitioner to be entitled to the extension period within which his RFA may be filed.

6. The times in this case pertinent under Florida’s Lemon Law are:

   1. Date of purchase of vehicle 5/17/94

   2. Eighteen months from date of purchase 11/16/95

   3. 24,000 miles of operation reached 6/22/95

   4. Initial Lemon Law limit reached 6/22/95

   5. Six month extension due to Notice

      of Non-compliance filed 12/22/95

   6. Six month deadline to file after

      expiration of 6 month extension 6/22/95

   7. Date RFA filed with DOA 7/24/96

   8. Excessive delay 32 days.

      
      

7. On the basis of the above chronology, the DOA concluded that Petitioner’s RFA was not timely, and by letter dated August 23, 1996, rejected it. Petitioner submitted his Petition for Formal Proceedings on September 5, 1996, and it was received by the DOA on September 19, 1996.

8. As of the date of this hearing, the unacceptable condition of the vehicle still exists. Ford Motor Company has contended that the condition is not serious, and when the vehicle

   had 16,000 miles on it, offered Petitioner $1,000 toward the purchase of a new vehicle. The dealer has now indicated it can do no more to correct the condition in issue.

9. Petitioner claims he was misled by Ford Motor Company into waiting until the time limit for filing the Lemon Law RFA had expired. He did not know of the time constraints under the Lemon Law and believed Ford would correct the problem. He also claims that notwithstanding his signature appears on all the pertinent documents herein, his wife took care of all the paperwork.

10. Ms. Williamson believes that the RFA was sent in on or around the time it was dated - June 5, 1996, but she cannot be sure. She is also not sure if it was sent by certified mail, but she has no receipt to demonstrate it was. She contends the RFA could not have been held by her as long as would be required for it to not be delivered until July 24, 1996, and suggests the DOA’s date stamp might be in error. The likelihood of that is remote.

11. Petitioner and his wife admit to having been given a Lemon Law pamphlet when they bought the vehicle but also admit they did not study it timely to determine the criteria for filing a RFA. They want an opportunity to exercise their rights under the Lemon Law through arbitration and though they are not prepared to give this up because they cannot afford to replace the vehicle, they are very uncomfortable regarding its safety.

    CONCLUSIONS OF LAW

    
    

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

13. The Department of Agriculture and Consumer Services is charged with the responsibility to screen for eligibility all requests for arbitration before the Florida New Motor Vehicle Arbitration Board by the provisions of Section 681.109(5), Florida Statutes, and may reject any dispute it finds to be fraudulent or outside the Board’s authority. The Department of Legal Affairs has been designated the agency to enforce and ensure compliance with the provisions of Chapter 681, and consumers are afforded remedies under Florida’s Lemon Law pursuant to Section 681.112, Florida Statutes.

14. Under the terms of the statute, at Section 681.109(4), Florida Statutes, consumers must request arbitration within 6 months after expiration of the Lemon Law rights period or within

    30 days after the final action of a certified procedure, whichever comes first. Ford Motor company has no state-certified procedure. Therefore, the deadline here is within six months after the date of expiration of the Lemon Law rights period. The “Lemon Law rights period” is defined at Section 681.102(9), Florida Statutes, as:

    the 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 comes first.

15. In the instant case, the evidence clearly demonstrates that Mr. Williamson filed his request for arbitration in an untimely manner. The Petitioner purchased this vehicle on May 17, 1994 and he had owned it for eighteen months on November 16, 1995. Petitioner reached 24,000 miles of operation on or before June 22, 1995, which was before the completion of eighteen months of ownership. Therefore, his Lemon Law rights period expired on June 22, 1995. However, by statute, Petitioner was afforded an extension of six months beyond the rights expiration date in which to request arbitration. That brought him to December 22, 1995, and he was then afforded an additional extension of six months in which to file beyond the initial extension which made his application for arbitration due by June 22, 1996. His request for arbitration was not filed until July 24, 1996,

thirty-two days after the expiration of the most liberal extension term available to him. Notwithstanding Petitioners assertions that the Department’s date stamp was affixed in error, there is no evidence to support this claim, and it must be concluded that Petitioner’s request for arbitration was untimely.

16 Petitioner was provided with all necessary materials for research into the Lemon Law at the time of his purchase of the vehicle. He was not deprived of any pertinent information made available to others in a similar situation. To his credit, Petitioner sought correction of the problem from Ford Motor Company and its agents when it became prevalent. However, though

he had the Lemon Law material, he did not seek to avail himself of the assistance to be found thereunder. Notwithstanding the apparent obfuscation by Ford, there is no evidence that any assistance from the Department or any other state agency was sought, or that Petitioner was in any way dissuaded by any state or department employee from seeking to enforce his rights under the Lemon Law in a timely manner. The ultimate fact is, however, that he failed to file his request on time, and his failure was neither caused nor abetted by any action of the Department.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner’s Request for Arbitration as untimely.

DONE and ORDERED in Tallahassee, Florida this 14th day of January, 1997.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1997.

COPIES FURNISHED:

Kenneth P. Williamson 3732 Meridian Pace

Land O’Lakes, Florida 34536

Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services

The Mayo Building, Room 515 Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture 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 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: 96-004591

Orders for Case No: 96-004591