STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRECO E. CARRERAS, )

)

Petitioner, )

)

vs. ) CASE NO. 97-0640

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER AFFAIRS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on March 13, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Greco Carreras, pro se

10420 North 22nd Street Tampa, Florida 33612

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner’s request for arbitration under Florida’s Lemon Law was timely submitted.

PRELIMINARY MATTERS

By letter dated December 18, 1996, the Department of Agriculture and Consumer Services advised the Petitioner herein that his request for arbitration before the Florida New Vehicle Arbitration Board, (Board), had been denied as untimely.

Thereafter, Petitioner requested a formal hearing on the denial and this hearing ensued.

At the hearing, Petitioner testified in his own behalf. Subsequent to the hearing, Petitioner submitted a composite exhibit of documents relating to the repair of his vehicle. It is not known whether this packet was also provided to counsel for the Respondent. Respondent presented the testimony of James Morrison, its senior consumer complaint analyst supervisor, and introduced Respondent’s Composite Exhibit A. Respondent requested that Chapter 681, Florida Statutes, be officially recognized. This request was granted.

No transcript of the proceedings was furnished. Only 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, Department of Agriculture and Consumer Services, (DOA), was the state agency in Florida responsible for the

   administration of the Florida New Car Lemon Law. This law provides for compulsory arbitration in those cases where the vehicle qualifies under the terms of the statute.

2. Petitioner, Greco Carreras, purchased a new, 1994 Ford Ranger truck on June 8, 1994 from Ernie Hare Ford in Tampa, Florida. Thereafter, it was necessary for him to take the vehicle in for service, due to transmission and clutch problems. These visits were:

   March 1, 1995 Howard Smith Ford, OK 20,591 mi. Aug. 15, 1995 Ernie Hare Ford, Tpa., FL 31,935 mi.

   Jan. 23, 1996	“	“	“	“ “	37,071 mi.
   Apr. 1, 1996	“	“	“	“ “	41,450 mi.
   May. 20, 1996	“	“	“	“ “	45,964 mi.
   Oct. 8, 1996	“	“	“	“ “	52,521 mi.

3. Petitioner had put 24,000 miles on his vehicle, by his own admission, sometime in May 1995. In any case, from the above dates and mileage points, it is clear that the 24,000 mile point was reached before August 15, 1995 when he had 31,935 miles on it at the time he first brought the vehicle in to the Florida dealer who sold it to him for service.

4. On or about December 9, 1996, Petitioner executed and forward to the DOA a Request for Arbitration by the Florida Motor Vehicle Arbitration Board. This request for was received in the Department on December 12, 1996.

5. Under the provisions of Section 681.102(9), Florida Statutes, the “Lemon Law rights period” is defined 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 occurs first.

   
   

6. Consumers are required 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 occurs later. Ford Motor Company has no certified procedure in Florida. Therefore, the deadline for filing is six months after the expiration of the rights period. That would have been January 14, 1996 (18 months after Petitioner took delivery of the vehicle) or in May, 1995 (when he reached 24,000 miles on the vehicle, whichever came earlier. In this case, giving Petitioner the benefit of the doubt, his initial rights period was determined to have ended on or before August 15, 1995, when he put 24,000 miles on his car as evidenced by the repair receipt from Ernie Hare Ford reflecting 31,935 miles on the vehicle when it was brought in for service.

7. The initial Lemon Law rights period may be extended for an additional six months if items of nonconformity which are reported to the dealer within the original period, remain uncorrected at the end thereof. The Department assumed that Petitioner qualified for this extension. This extended the time to February 15, 1996.

8. Consumers have up to six additional months after the expiration of the Lemon Law rights period, as extended, to file for relief under the statute. In this case, Petitioner had until August 15, 1996 to file his request for arbitration. The copy of

   Petitioner’s request which was received into evidence reflects that he signed it on December 9, 1996, and it was received in the Department on December 12, 1996. This is more than three and a half and almost four months beyond the filing deadline in this case, and constitutes the Department’s basis for denial of Petitioner’s request for arbitration.

9. Petitioner claimed at hearing that the reason he filed his request for arbitration was because the vehicle he purchased was a lemon. Though he purchased it new, it has been in the shop for repair of the same problem more than three times. Notwithstanding the wording of Florida’s Lemon Law in the pamphlet he was given at the time he purchased the car, Petitioner has some problem with the wording used and the way the

   18 month/24,000 mile criteria are applied.

   
   

10. Because of the fact that he had almost 24,000 miles on the vehicle the first time he brought it in for repair on March 1, 1995, less than nine months after he took delivery of it, he feels use of the 18 month criteria would have given him greater opportunity to find out what he needed to do. No doubt, he contends, had he filed for arbitration right after the third visit for the same problem, in January 1996, he would have been timely. However, he was being generous to the dealer in allowing them to try to fix the problem, an unfortunate mistake on his part.

11. Petitioner also claims he was advised by an

    unidentified representative of the Department with whom he spoke by telephone after the September 1996 repair, (sometime in early December 1996) that he was still within the time constraints of the statute. At that time, he claims, he advised the individual with whom he spoke of the repair history of the vehicle and how many miles the vehicle had been driven. He was, apparently, wrongly advised.

    CONCLUSIONS OF LAW

    
    

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

13. Under the provisions of Section 681.109(5), Florida Statutes, the Department is charged with the responsibility to screen all requests for arbitration before the Board to determine eligibility, and, under subsection (6) of the same section, has the authority to reject a dispute it determines to be outside the scope of its authority.

14. Section 681.109(4), Florida Statutes, requires consumers to file their requests 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 procedure, whichever is later. In this case, no provision exists for a certified procedure. Therefore, the request for arbitration had to have been filed within 6 months of the expiration of the Lemon Law rights period. In this case, Petitioner was afforded an

    additional 6 months to file by virtue of the fact he was credited with having timely reported a nonconformity which remained uncorrected by the manufacturer at the expiration of the Lemon Law rights period.

15. In this case, granting Petitioner the most liberal of interpretations of the statute, which afforded him the maximum time allowable to file his request for arbitration, the evidence of record nevertheless reflects his request was not timely filed. Under the terms of the statute, the Department was obliged to deny Petitioner’s request for arbitration. This conclusion is consistent with by far the greater number of orders on the subject entered by Judges of the Division of Administrative Hearings. These hold that when the filing deadline established by statute is not met, the Department had no authority to forward the untimely request for arbitration to the Department of Legal Affairs for further processing before the Florida New Motor Vehicle Arbitration Board.

16. In this case, the burden of proof rests upon the Petitioner to show, by a preponderance of the evidence, that he filed his request for arbitration in a timely manner. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3rd. DCA 1990). Review of the facts of this case in the light most favorable to Petitioner’s position and affording him any and all possible extensions, indicates his failure to file his request in a timely manner. Under the circumstances, Petitioner has failed

to show any legal or factual basis for recommending the Department refer his case to the Board for arbitration.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer services enter a final order denying Petitioner’s Request for Arbitration under the Florida Lemon Law as untimely filed.

DONE and ENTERED this 10th day of April, 1997, in Tallahassee, Florida.

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997.

COPIES FURNISHED:

Greco Carreras

10420 North 22nd Street Tampa, Florida 33612

Rhonda Long Bass, Esquire

Florida Department of Agriculture and Consumer Services

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 fifteen 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: 97-000640

Orders for Case No: 97-000640