STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. BOUDREAU, )

)

Petitioner, )

)

vs. ) Case No. 97-2946

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, in Orlando, Florida, on October 31, 1997. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Boudreau, pro se

1209 Alton Drive

Apopka, Florida 32703

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

Whether Petitioner qualified for arbitration before the Florida New Motor Vehicle Arbitration Board (hereinafter the "Board") pursuant to Chapter 681, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated May 9, 1997, Respondent denied Petitioner's

Request for Arbitration before the Florida New Motor Vehicle Arbitration Board. In response, Petitioner timely requested a formal hearing under Section 120.57(1), Florida Statutes. As a result, the Respondent forwarded this case to the Division of Administrative Hearings (hereinafter DOAH) for adjudication.

Following a continuance granted at the request of Petitioner, this case came on for formal hearing on October 31, 1997, in Tallahassee, Florida, with video conferencing to Orlando, Florida. Petitioner testified on his own behalf.

Respondent offered the testimony of Jim Morrison, Consumer Complaint Analyst Supervisor, and submitted a composite exhibit into evidence. Chapter 681, Florida Statutes, the Motor Vehicle Warranty Enforcement Act; David Brosman v. State of Florida, Department of Agriculture and Consumer Services, (DACS 94-0024) (Final Order April 4, 1994; Recommended Order No. 94-0024,) March 1, 1994; and Edwin Charles O'Malley v. Department of Agriculture and Consumer Services, (DACS 95-0050) (Final Order June 21, 1995; Recommended Order No. 95-1172 May 15, 1995;) and Carmine Cavaseno v. State of Florida, Department of Agriculture and Consumer Services, (DACS 95-0613) (Final Order July 5, 1996; Recommended Order No. 95-5987, May 22, 1996), were officially recognized. The hearing was recorded but not transcribed. The time for filing Proposed Recommended Orders was set for ten days following the close of the formal hearing. Petitioner has not filed a proposed order as of the date of this order. Respondent

filed its proposals on November 7, 1997.

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner, Michael Boudreau, was a resident of the State of Florida.

2. Pursuant to Section 681, Florida Statutes, the Respondent's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive, screen, and evaluate requests for arbitration before the Florida New Motor Vehicle Arbitration Board and to determine eligibility for arbitration. Respondent has the authority to reject a dispute that the Respondent determines to be outside the scope of the Board's authority.

3. On May 17, 1996, Petitioner purchased and took possession of a new 1996 Dodge Ram 3500 Truck from Dodge Country in Duluth, Georgia. Dodge is a division of the Chrysler Corporation, a Michigan corporation.

4. The consideration for the motor vehicle was paid to Dodge Country in Duluth, Georgia.

5. The truck was driven to Florida. It was titled in Florida, and the sales and use tax, registration fee, and title fees paid to the State of Florida.

6. Petitioner made numerous reports of problems with the vehicle. The manufacturer's authorized service agent in Florida was given more than three attempts to correct the same problem without success.

7. On May 8, 1997, Petitioner filed his Request for arbitration by the Florida New Vehicle arbitration Board.

8. By letter dated May 9, 1997, the Respondent rejected Petitioner's Request for Arbitration because the vehicle was purchased in Duluth, Georgia, and not sold in the State of Florida.

9. Petitioner testified that he attempted to purchase the vehicle in Florida. However, the make and model of his choice was not available from any dealer in Florida. He was forced to purchase the vehicle out-of-state, but he drove it immediately thereafter to Florida and titled it in this state.

   CONCLUSIONS OF LAW

   
   

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

11. Chapter 681, Florida Statutes, the "Motor Vehicle Warranty Enforcement Act," and provides a procedure whereby the consumer may obtain relief when a "motor vehicle" does not conform to the warranty. Part of that procedure is the submission of a dispute to the Florida New Motor Vehicle Arbitration Board. Sections 681.109(1), (2), (3), (4), and (5), Florida Statutes, set forth the conditions for eligibility of a dispute to be hard by the Board, the time within which a dispute must be filed, and the authority for the Division of Consumer Services of the Respondent to determine the eligibility of a

    dispute.

    
    

12. Section 681.109(6), Florida Statutes, grants the Respondent authority to reject a dispute that the Respondent determines to be fraudulent or outside the scope of the Board's authority.

13. Section 681.102(14), Florida Statutes, provides in pertinent part:

    (14) "Motor vehicle" means a new vehicle, propelled by power other than muscular power, which is sold in this state to transport person or property, . . . (Emphasis added).

    
    

14. It is clear from the above language that the locus of the "sale" will determine the Petitioner's eligibility for arbitration under Chapter 681, Florida Statutes.

15. Although the term "sold in this state" is not defined in Chapter 681, Florida Statutes, Section 212.02(8), Florida Statutes, defines the terms "in this state" or "in the state" to mean within the state boundaries of Florida as defined in Section 1, Article II of the Constitution of the State of Florida.

16. Furthermore, Section 212.02(15), Florida Statutes, includes in its definition of "sale" the transfer of title or possession, or both, in any manner or by any means whatsoever, of tangible personal property for a consideration.

17. It is clear from the ordinary meaning of the term "sold in this state," that the Legislature did not intend to include a motor vehicle sold in another state within the definition of

    "motor vehicle" in Section 681.109(14), Florida Statutes, notwithstanding that such motor vehicle was titled in Florida and the sales and use tax, registration fees, and title fees paid to the State of Florida.

18. 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. 3rd 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 Service, 348 So. 2d 349 (Fla. 1st DCA 1977). To meet this burden the Petitioner must establish facts upon which his allegations are based by a preponderance of the evidence.

19. Petitioner did not prove that his vehicle was sold in the State of Florida. Petitioner has failed to meet his burden in this regard.

RECOMMENDATION

Upon 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 the Petitioner's Request for Arbitration before the Board.

RECOMMENDED this 8th day of December, 1997, in Tallahassee,

Leon County, Florida.

COPIES FURNISHED:

Michael J. Boudreau, pro se 1209 Alton Drive

Apopka, Florida 32703

DANIEL M. KILBRIDE

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 8th day of December, 1997.

Rhonda Long Bass, Senior Attorney Department of Agriculture and

Consumer Services 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 Commissioner of Agriculture

The Capitol, Plaza Level 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: 97-002946

Orders for Case No: 97-002946