STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYLVIA McCULLARS, )

)

Petitioner, )

)

vs. ) Case No. 99-1758

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed fact hearing on June 11, 1999, in Gainesville, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sylvia McCullars, pro se

11708 Southwest 122nd Street Gainesville, Florida 32608

For Respondent: Angela Dempsey, Esquire

Office of General Counsel Department of Agriculture and Consumer Services

Room 515, Mayo Building

407 Calhoun Street

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to arbitration under Chapter 681, Florida Statutes, Florida's "lemon law."

PRELIMINARY STATEMENT

By a letter dated February 25, 1999, the Department of Agriculture and Consumer Services, Division of Consumer Services (Department) denied Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board (Board).

Petitioner timely requested a formal hearing, pursuant to Section 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings on or about April 22, 1999.

Formal hearing was convened on June 11, 1999. Petitioner testified on her own behalf and had eight exhibits admitted in evidence. Respondent presented the oral testimony of James D. Morrison and had no exhibits admitted in evidence.

After all evidence had been presented and both parties had rested, the undersigned devoted considerable time to a detailed explanation of what constitutes post-hearing proposals and how to count the days available for filing post-hearing proposals. The parties agreed that June 21, 1999, would be the last date for filing proposed recommended orders.

No transcript of proceedings was furnished. Respondent's Proposed Recommended Order was filed on

June 18, 1999.1

Petitioner thereafter secured a stipulation from Petitioner's counsel that she could file her proposed order on or before July 12, 1999. Petitioner's Proposed Recommended Order was filed on July 9, 1999.

Each party's proposed recommended order has been considered.

FINDINGS OF FACT

1. Petitioner took delivery of the motor vehicle at issue on December 31, 1996, at which time she received information on the requirements of Florida's "lemon law."

2. Petitioner began to have trouble with the vehicle almost immediately. She notified the dealer that there was a serious problem, and Palm Kia in Ocala, Florida, performed some repairs. The Ocala dealer's repair shop did not inform her that the problem was a computer failure.

3. Sometime during the next 18 months, there was a second period during which the car was in some repair shop.

4. Petitioner first contacted the Department on January 8, 1999, by telephone. She was informed that the statutory time period for requesting arbitration under Florida's "lemon law" had expired, and the suggestion was made that she try contacting the Better Business Bureau.

5. Petitioner testified that she would have filed a request for arbitration with the Department in January 1999, if the Department had not referred her to the Better Business Bureau.

6. Petitioner signed her first and only written request for arbitration on February 2, 1999. This written request for arbitration by the Board was received by the Department on February 11, 1999.

7. In her written arbitration request, Petitioner indicated

   that her vehicle had reached 24,000 miles "around the end" of 1997. However, at formal hearing, Petitioner confirmed that on January 19, 1998, the mileage on her vehicle was 32,763.

8. In her written arbitration request, Petitioner did not provide proof that she had provided written notice of the alleged defect to the manufacturer, Kia Motors, within the "lemon law" rights period.

9. Petitioner testified that sometime in the 18-month period specified by Florida's "lemon law" she had telephoned the manufacturer to complain about her car. However, Petitioner also testified that she did not notify the manufacturer by certified letter of the nonconformity until October 1998.

10. Petitioner testified that on December 28, 1998, Gatorland Toyota in Gainesville, Florida, requested that the motor vehicle be towed to them. The motor vehicle had been towed the previous day, Sunday, December 27, 1998, to Billy Shell's Garage because Kia was closed and the motor vehicle could not be locked away. The motor vehicle was not diagnosed by Gatorland Toyota as having a computer problem until the first part of January 1999.

11. Petitioner took possession of her vehicle in January 1999. At that time, she notified the dealer by telephone that the engine light was on.

12. The car has continued to have difficulties.

    CONCLUSIONS OF LAW

    
    

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

14. The duty to go forward and the burden of proof by a preponderance of the evidence is upon Petitioner to show that she notified the manufacturer in a timely manner and that she filed the request for arbitration in a timely manner.

15. Because Petitioner's vehicle was purchased before October 1, 1997, the law, as codified in Florida Statutes (1995), applies in this cause.

16. Chapter 681, Florida Statutes, is the Motor Vehicle Warranty Enforcement Act. Pursuant to Section 681.109, Florida Statutes, the Department's Division of Consumer Services screens all requests for arbitration by the Board. Pursuant to

    Section 681.109(6), Florida Statutes, the Division "may reject a dispute that it determines to be . . . outside the scope of the Board's authority."

17. Section 681.109(4), Florida Statutes, requires consumers to request arbitration within six months after the expiration of the "lemon law rights period."

18. The "lemon law rights period," is defined in Section 681.102(9), Florida Statutes, which provides in pertinent part:

    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.

19. Section 681.104, Florida Statutes, provides the procedures which consumers must follow to report nonconformities to the automobile manufacturer. Subparagraph (3)(a) requires that at least three attempts to conform a motor vehicle to the warranty must occur during the "lemon law rights period." Subsection (3)(b) extends that period to six months after the expiration of the lemon law rights period only if a nonconformity has been reported in writing to the manufacturer but has not yet been cured by the manufacturer by the expiration of the "lemon law rights period."

20. Herein, the initial "lemon law rights period" expired on December 31, 1997, without Petitioner's making any written request for arbitration.

21. Potentially, Petitioner's request period could be extended for six months, to June 30, 1998, if she had notified the manufacturer in writing of the nonconformity and the nonconformity had not been corrected. See Section 681.104(3)(b), Florida Statutes.

22. Also potentially, if Petitioner had timely notified the manufacturer in writing of the nonconformity, she would have had six months from June 30, 1998, or until December 31, 1998, to file a request for arbitration with the Division. See Section 681.109(4), Florida Statutes.

23. Petitioner's request for arbitration by the Board was not filed until February 11, 1999. Therefore, regardless of any

    potential extensions available to her, Petitioner's request for arbitration was not timely filed.

24. A telephone call does not qualify as a request for arbitration. Certainly, Petitioner's telephone call on January 8, 1999, after the longest available filing period had run, does not qualify.

25. Petitioner contended that she was hindered from writing the manufacturer due to an act or omission of the Ocala dealer's repair shop in not clearly advising her that the first repair in 1997 involved a computer failure. She also claimed that there was "great probability" that she would have notified the manufacturer in writing of the alleged defect within the "lemon law rights period" if she had been told that the first part replaced in 1997 had been such a major part as a computer. She further claimed to be entitled to arbitration "based on factual occurrences and circumstances beyond the control of Petitioner," yet she also asserted that she had felt that the repairs in December 1998, related to the same failures as on the two previous repair occasions but that she had intentionally waited for the dealership to diagnose the problem. Her decision to wait for a specific diagnosis was not a circumstance beyond her control.

26. In any case, the statutory deadlines established in Chapter 681, Florida Statutes, are jurisdictional. They make no allowances for "special circumstances." See H.R. and T.J. Reagan

    v. Department of Agriculture and Consumer Services, DOAH Case

    
    

    No. 97-3783 (Recommended Order of Robert E. Meale, Administrative Law Judge, entered December 17, 1997; Final Order entered, date unknown) and Paul D. Maxwell v. Department of Agriculture and Consumer Services, DOAH Case No. 96-1322 (Recommended Order of Arnold P. Pollock, Administrative Law Judge, entered June 7, 1996; Final Order entered July 5, 1996.)

27. Petitioner's request for arbitration is ineligible for arbitration by the Board because Petitioner failed to notify the manufacturer in writing of the alleged defect within the "lemon law rights period" as required by Section 681.104(1)(a), Florida Statutes.

28. Petitioner's request for arbitration is ineligible for arbitration because the dealer/manufacturer's third attempt to conform the motor vehicle to the warranty did not occur during the "lemon law rights period" as required by Section 681.104(3)(a), Florida Statutes. Herein, the dealer/manufacturer's third attempt to conform the motor vehicle to the warranty occurred between December 28, 1998 and early January 1999. Even if Petitioner had timely notified the manufacturer of the nonconformity in writing, Petitioner's February 11, 1999, written request for arbitration was still filed with the Department 42 days beyond the December 31, 1998, deadline.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Department of Agriculture and Consumer Services enter a final order upholding the February 25, 1999 denial of Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board.

DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1999.

ENDNOTE

1/ Despite her clear statements on the record that she had in no way been misled or taken advantage-of by the Department's counsel, Petitioner's Proposed Recommended Order asserted that, ". . . Petitioner's knowledge of legal matters and of the Department of Agriculture being the overseer of the Lemon Law Board perhaps prevented Petitioner from seeing Ms. Dempsey as Respondent's attorney." The undersigned interprets this to be Petitioner's attempt to explain her non-compliance with the Order of Prehearing Instructions, which was already excused at the commencement of the formal hearing. In the event Petitioner intends some other complaint against the Department's counsel, sufficient inquiry was made on the record to satisfy the undersigned that no impropriety has occurred.

COPIES FURNISHED:

Sylvia McCullars

11708 Southwest 122nd Street Gainesville, Florida 32608

Angela Dempsey, Esquire Office of General Counsel Department of Agriculture

and Consumer Services

515 Mayo Building

407 Calhoun Street

Tallahassee, Florida 32399-0800

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

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: 99-001758

Orders for Case No: 99-001758