STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF AGRICULTURE AND CONSUMER ) SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-0691

) ADAM’S STREET MUFFLER SHOP ) AND SERVICE, INC., a Florida )

Corporation and TIM TANNER, ) individually and as Director ) of ADAM’S STREET MUFFLER SHOP ) AND SERVICE CENTER, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on April 14, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lawrence J. Davis

Senior Attorney

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Respondents: J. Joseph Hughes, Esquire

1017-A Thomasville Road Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue in this case is whether Respondents committed the offenses described in an Administrative Complaint entered by Petitioner on or about January 10, 1997.

PRELIMINARY STATEMENT

On or about January 10, 1997, Petitioner, the Department of Agriculture and Consumer Services, entered an Administrative Complaint against Respondents, Adam's Street Muffler Shop and Service Center, Inc., a Florida Corporation, and Tim Tanner, individually and as director of Adam's Street Muffler Shop and Service Center, Inc. The Administrative Complaint alleged that Respondents had violated the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes.

On or about February 3, 1997, Respondents requested a formal administrative hearing to contest the charges of the Administrative Complaint.

The Administrative Complaint and request for hearing were filed with the Division of Administrative Hearings on February 10, 1997. The matter was designated case number 97-0691 and was assigned to the undersigned.

At the final hearing Petitioner presented the testimony of Robert D. Drake, Daniel Keller, and Tim Tanner.

Petitioners offered Exhibits 1-15, 20 and 26 into evidence. All were accepted except Exhibit 26. Respondent, Tim Tanner, testified on behalf of Respondents. Respondents

also offered 5 Exhibits. Those Exhibits were accepted into evidence. All of Respondents Exhibits, however, are hearsay.

No transcript of the formal hearing was filed by the parties. Proposed orders were filed by both parties. Those proposed orders have been fully considered by the undersigned.

FINDINGS OF FACT

1. Petitioner, The Department of Agriculture and Consumer Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for enforcing the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes (hereinafter referred to as the "Act").

2. Respondent, Adam's Street Muffler Shop and Service Center, Inc. (hereinafter referred to as "Adam's Street Muffler"), is a dissolved Florida corporation. Adam's Street Muffler is located at 1401 South Adam's Street, Tallahassee, Leon County, Florida.

3. Adam's Street Muffler is registered with the Department under the Act as a motor vehicle repair shop. The Department has assigned registration number MV-15484 to Adam's Street Muffler.

4. Respondent, Tim Tanner, is the owner and operator of Adam's Street Muffler.

5. At the time that Adam's Street Muffler register pursuant to the Act, a registration packet, including a copy of the Act, was provided to Adam's Street Muffler.

6. On July 24, 1995, Robert Dan Drake, an investigator with the Department's Bureau of Motor Vehicle Repair, went to Adam's Street Muffler. Mr. Drake performed a compliance audit to determine whether repair estimate statements and invoices for services were in compliance with Sections 559.905 and 559.911, Florida Statutes.

7. A copy of the repair invoice provided by Adam's Street Muffler personnel to Mr. Drake was determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. See Petitioner's Exhibit 9.

8. Mr. Drake discussed the requirements of the Act pertaining to repair estimates and invoices with Peggy Folsom, the secretary for Adam's Street Muffler.

9. Mr. Drake also provided an On-Site Inspection Report/Citation (Petitioner's Exhibit 7), and a Compliance Checklist/Citation (Petitioner's Exhibit 8), to Ms. Folsom. These forms described the deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler.

10. Adam's Street Muffler was given thirty days to correct the repair estimate and invoice. A revised form was

    submitted to the Department. See Petitioner's Exhibit 10. The corrected form was accepted by the Department.

11. On July 1, 1996, Mr. Drake returned to Adam's Street Muffler. Mr. Drake discovered that the repair estimate and invoice used by Adam's Street Muffler for a complaining customer was the same form that he had found to be deficient on July 24, 1995. See Petitioner's Exhibit 12.

12. Mr. Drake issued a second On-Site Inspection Report/Citation to Adam's Street Muffler as a result of the July 1, 1996 visit. Petitioner's Exhibit 11. The report again described the specific deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler.

13. On October 1, 1996, Mr. Tanner paid a $300.00 fine for violating Sections 559.905 and 559.911, Florida Statutes.

14. On December 1, 1996, two months after Mr. Tanner paid the fine, and approximately six months after the second violation of the Act, Dan Keller, an employee of the Department, visited Adam's Street Muffler.

15. Mr. Keller examined forms titled "Repair Orders" in the files of Adam's Street Muffler. The forms discovered by Mr. Keller were determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes.

    Petitioner's Exhibits 1-5.

16. The forms copied by Mr. Keller on December 1, 1996, were used as repair estimates and invoices for services performed.

17. The evidence failed to prove when the vehicles at issue were brought to Adam's Street Muffler, that they were not brought to Adam's Street Muffler by person other than the owner, or that Adam's Street Muffler did not notify the customer pursuant to Section 559.909(1), Florida Statutes.

18. None of the owners of the vehicles to which Petitioner's Exhibits 1-5 relate have filed a complaint with the Department concerning work performed by Adam's Street Muffler.

19. The repairs evidence by Petitioner's Exhibits 1-5 were for repair work costing in excess of $50.00.

20. The forms taken from Adam's Street Muffler on July 24, 1995, July 1, 1996, and December 1, 1996 are incorporated into this Recommended Order by reference.

21. On or about January 10, 1997, the Department entered an Administrative Complaint against Adam's Street Muffler and Mr. Tanner. The Administrative Complaint contains two counts against Respondents: one for alleged violations of Section 559.905, Florida Statutes, and one for alleged violations of Section 559.911, Florida Statutes. Both counts relate the forms obtained by the Department in December of 1996.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1996 Supp.).

23. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in this proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

24. In this proceeding, it is the Department that is asserting the affirmative: that Respondents committed the offenses alleged in the Administrative Complaint entered by the Department. The Department, therefore, had the burden of proof in this proceeding. The Department was required to meet its burden by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

25. The Act applies to all motor vehicle repair shops in the State of Florida. Section 559.904, Florida Statutes. Adam's Street Muffler is a motor vehicle repair shop and is, therefore, subject to the provisions of the Act.

26. Section 559.905(1), Florida Statutes, requires that a written repair estimate be provided to any customer who requests repair work on a motor vehicle that will exceed

    $50.00 in costs to repair. The written repair estimate is required to include certain information specified in Section 559.905(1)(a) through (n), Florida Statutes. The information required to be included on the written repair estimate were not included by Adam's Street Muffler on its Repair Orders; Petitioner's Exhibits 1-5, consists of the following:

    1. The name, address, and telephone number of the customer. Section 559.905(1)(b), Florida Statutes;

    2. The year, make, model, odometer reading, and license tag number of the motor vehicle. Section 559.905(1)(d), Florida Statutes;

    3. The proposed work completion date. Section 559.905(1)(e), Florida Statutes;

    4. A statement that the customer is being charged a flat rate or an hourly rate. Section 559.905(1)(g), Florida Statutes;

    5. The customer's intended method of payment. Section 559.905(1)(j), Florida Statutes;

    6. The name and telephone number of a person that may authorize repair work, if the customer desires to designate another person. Section 559.905(1)(k), Florida Statutes;

    7. A statement indicating what, if anything, is guaranteed in connection with the repair and the time and

       mileage period for which the guarantee is effective. Section 559.905(1)(l), Florida Statutes;

    8. A statement allowing the customer to indicate whether replaced parts should be saved for inspection by, or return to, the customer. Section 559.905(1)(m), Florida Statutes; and

    9. A statement indicating the daily charge for storing the customer's vehicle after the customer has been notified that the repairs are complete and the circumstances when storage charges may be imposed. Section 559.905(1)(n), Florida Statutes.

27. Section 559.905(2), Florida Statutes, requires that the customer also be provided a disclosure statement. The style and language of the disclosure statement are specifically provided in Section 559.905(2), Florida Statutes. The disclosure statement is required to be in 12- point type.

28. Adam's Street Muffler did not include the disclosure statement required by Section 559.905(2), Florida Statutes, on the Repair Orders accepted into evidence as Petitioner's Exhibits 1-5.

29. Section 559.905(5), Florida Statutes, provides that the written repair estimate and the disclosure statement required by Sections 559.905(1) and (2), Florida

    Statutes, need not be provided under the following circumstances:

    (5). If the customer leaves his motor vehicle at a motor vehicle repair shop during hours when the shop is not open or if the customer permits the shop or another person to deliver the motor vehicle to the shop, there shall be an implied partial waiver of the written estimate; however, upon completion of diagnostic work necessary to estimate the cost of repair, the shop shall notify the customer as required in s.

    559.909(1).

    
    

30. The evidence in this case failed to prove when the vehicles at issue were brought to Adam's Street Muffler, that they were not brought to Adam's Street Muffler by another person, or, if required, that Adam's Street Muffler did not notify the customer as required in Section 559.909(1), Florida Statutes.

31. Based upon the foregoing, the evidence failed to prove that Adam's Street Muffler has violated Section 559.905, Florida Statutes, on December 1, 1996, as alleged in the Administrative Complaint.

32. Section 559.911, Florida Statutes, requires that motor vehicle repair shops provide a copy of an invoice for repair work to the customer upon completion of the repair work. The invoice may be provided on the same form used for the repair estimate. Sections 559.911(1) through (6), Florida Statutes, specify certain information which must be included on the invoice.

33. Adam's Street Muffler used the Repair Order forms accepted into evidence as Petitioner's Exhibits 1-5 as an invoice. Those forms failed to include the following information required to be included on the invoice by Section 559.911, Florida Statutes:

    1. The current date and odometer reading of the motor vehicle. Section 559.911(1), Florida Statutes;

    2. An itemized description of all labor, parts, and merchandise supplied, and the costs thereof, indicating what was supplied to the customer without cost or at a reduced cost because of a shop or manufacturer's warranty. Section 559.911(3), Florida Statutes;

    3. A statement identifying any replacement part as a used, rebuilt, or reconditioned part. Section 559.911(5),

       Florida Statutes; and

       
       

    4. A statement indicating what, if anything, is guaranteed in connection with the repair work and the time and mileage period for which the guarantee is effective. Section 559.911(6), Florida Statutes.

34. The evidence in this case proved that Adam's Street Muffler and Mr. Tanner violated Section 559.911, Florida Statutes, as alleged in the Administrative Complaint.

35. Section 559.920(17), Florida Statutes, makes it unlawful for a motor vehicle repair shop to perform any act

    in violation of the Act. The evidence proved that Respondents violated Section 559.911, Florida Statutes. The evidence failed to prove that Respondents violated Section 559.905, Florida Statutes.

36. The evidence proved that Respondents did violate Section 559.905, Florida Statutes, on two previous occasions, and Section 559.911, Florida Statutes, on three occasions.

37. Section 559.921(4), Florida Statutes, provides the following remedies which the Department may impose for violations of the Act:

    1. The department may enforce the provisions of this part by imposing administrative fines not to exceed

       $1,000 per violation or by taking action to suspend or revoke the registration of a motor vehicle repair shop when:

       
       

       1. The business has a pattern of failing to comply with or violating the provisions of this part;

          
          

          . . . .

          
          

38. The Department has suggested that Respondents' license should be revoked. In light of the fact that only one of the two counts of the Administrative Complaint has been proved and the fact that the evidence failed to prove any specific harm to any customer, it is concluded that Respondents should be required to pay an administrative fine of $1,000.00 and Respondents' motor vehicle repair shop registration should be suspended for two weeks.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services finding that Adam's Street Muffler Shop and Service Center, Inc., a Florida Corporation, and Tim Tanner, individually and as Director of Adam's Street Muffler Shop and Service Center, Inc., violated Section 559.911, Florida Statutes, as alleged in the Administrative Complaint entered January 10, 1997.

IT IF FUTHER

RECOMMENDED that Respondents be required to pay an administrative fine of $1,000.00 within thirty days of the date that the Final Order becomes final and the motor vehicle repair shop registration, MV-15484, issued to Respondents be suspended for a period of two weeks.

DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

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 27th day of June, 1997.

COPIES FURNISHED:

Lawrence J. Davis, Senior Attorney Department of Agriculture

and Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

J. Joseph Hughes, Esquire 1017-A Thomasville Road

Tallahassee, Florida 32303-6221

Honorable Bob Crawford 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

Brenda Hyatt, Chief Department of Agriculture

and Consumer Services Bureau of Licensing and Bond

508 Mayo Building

Tallahassee, Florida 32399-0800

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: 97-000691

Orders for Case No: 97-000691