STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW THOMAS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0815

) DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 28, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Andrew Thomas

317 South Gay Street

Panama City, Florida 32401

For Respondent: Barbara R. Edwards, Esquire

Department of Agriculture Room 515, Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

The issue in this cause is whether Petitioner is entitled to arbitration under Chapter 681, Florida Statutes, the Florida Lemon Law.

PRELIMINARY STATEMENT

This cause came on for hearing upon the request of Petitioner, after receipt of a letter dated November 13, 1992, from the Respondent, Department of Agriculture and Consumer Services rejecting Petitioner's request for Lemon Law arbitration. On February 2, 1993, the Respondent referred petitioner's request for formal administrative hearing to the Division of Administrative Hearings.

At the hearing, the Petitioner testified in his own behalf and offered four exhibits into evidence. The Respondent presented the testimony of one witness and offered two exhibits into evidence.

After the hearing, the Petitioner and Respondent filed Proposed Recommended Orders on July 28, 1994 and July 5, 1994, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such proposals were not supported by the

evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' proposed findings of fact are contained in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. In 1991, Petitioner owned a new 1991 Ford conversion van which he felt was a lemon as that term is defined in the Florida Lemon Law. In pursuit of his legal rights under the Lemon Law, Petitioner made a request for arbitration of his automotive problem.

   
   

2. Petitioner first applied for arbitration pursuant to the Lemon Law on December 31, 1991. Petitioner's application was incomplete because it failed to show that Petitioner had properly addressed and mailed Ford Motor Company a Motor Vehicle Defect Notification.

   
   

3. The Department returned the arbitration request to Petitioner on January 14, 1992. The accompanying letter informed Petitioner that he was required to submit, by certified mail, a Motor Vehicle Defect Notification form to the "Ford Motor Company, Attention: Customer Relations, Post Office Box 945500, Maitland, Florida 32794

   
   

4. Petitioner was instructed to supply the Department with evidence of his compliance with the Notice requirement providing a proper receipt along with his application within 30 days of Petitioner's receipt of the January 14, 1992, letter.

   
   

5. Petitioner failed to respond or return his application within the 30 days.

   
   

6. No evidence was ever submitted to the Division to show that Mr. Thomas mailed the Motor Vehicle Defect Notification Form to the Ford Motor Company as instructed by the January 14, 1992, letter from Respondent and as required by statute. Similarly, no evidence was presented at the hearing that the form was ever mailed to the appropriate entity.

   
   

7. After 30 days had lapsed from the January 14, 1992 letter, the Department could have "rejected" Petitioner's request for arbitration by sending him a notice of rejection as required by Rule 2-32.009(c)(2), Florida Administrative Code. However, the Division did not send a rejection notice to Petitioner at that time. Instead, Petitioner's file was closed on March 13, 1992, with no further action taken. Therefore, the time period for amending Petitioner's first application did not expire and remained open at least through January, 1993.

   
   

8. At the hearing, Petitioner claimed that he did not respond to the Division's request for more information because he was mentally disabled and was hospitalized for 45 days between December 1991, and October 1992, and that the American's with Disabilities Act requires that an exception to compliance with the Rules and Statutes be given to him. However, the evidence did not demonstrate that Petitioner was disabled during the entire period of time after the Division's request for information. Additionally, Petitioner did not request an extension of his response time as is required by the Florida Administrative Code. Moreover, since neither the rules nor the statutes provide for such an ADA exception, the Division cannot unilaterally fashion such an exception without engaging in rulemaking under Chapter 120. Such an exception must be addressed by the Florida Legislature or in rulemaking.

9. Therefore, Petitioner is not entitled to any exception to the Lemon Law requirements because of his disability or hospitalizations.

   
   

10. Ten months later, On October 5, 1992, Petitioner again applied for Lemon Law arbitration. Petitioner's application was again incomplete and the Department requested more information. However, because the Division did not send Petitioner a formal rejection letter, the October 5, 1992, application related back to the first application filed December 31, 1991.

    
    

11. Petitioner supplemented the second application with information showing that his vehicle had reached 24,000 miles in September of 1991.

    
    

12. On November 13, 1992, Respondent notified Petitioner that his request for arbitration was untimely because his request did not fall within the statutory period allowed once his vehicle reached 24,000 miles. A rejection notice was contained in the Department's letter of November 13, 1992, thereby beginning the 30 day time period for any amendments to either of Petitioner's applications.

    
    

13. As indicated earlier, the 30 day time period expired without Petitioner submitting any evidence that he had mailed Ford Motor Co. a Vehicle Defect Notification form. Therefore, Petitioner's application remained incomplete at the time any request for arbitration could have been made expired. Petitioner is therefore not entitled to arbitration under the Florida Lemon Law.

    
    

14. Finally, after Petitioner had requested arbitration, Petitioner sold and replaced the conversion van prior to the hearing. Therefore, Petitioner can not present the van to Ford Motor Co. for one last opportunity to repair. Such presentation is a condition precedent to arbitration which Petitioner cannot meet. Additionally, by selling his vehicle, Mr. Thomas has abandoned his Lemon Law Claim, in that he no longer has an ongoing dispute with Ford Motor Company that requires arbitration and his request for such is moot.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Chapter 681, Florida Statutes, Motor Vehicle Sales Warranty Enforcement Act, is administered jointly by the Division of Consumer Services, Department of Agriculture and Consumer Services and the Florida New Motor Vehicle Arbitration Board, Department of Legal Affairs. Sections 681.102(6), 681.109(1)(5) and (6), 681.1095(1), Florida Statutes.

    
    

17. The Division of Consumer Services is responsible for the initial review of an application under the statute and may reject an application if it is not "potentially entitled to relief." Sections 681.109(5) and (6), Florida Statutes. However, Petitioner has a burden to show by a preponderance of the evidence that he is entitled to arbitration.

    
    

18. In the instant case, the Division denied Petitioner's request for arbitration before the board, because of the alleged untimeliness of the request and because Petitioner had not submitted evidence of mailing the Vehicle Defect notification form to Ford Motor Co.

19. Chapter 681, Florida Statutes, sets out the various provisions governing the Motor Vehicle Warranty Enforcement Act. In pertinent part, Section 681.102(9), states:

    
    

    681.102 Definitions.

    As used in this chapter, the term:

    1. "Board" means the Florida New Motor Vehicle Arbitration Board.

    2. "Collateral charges" means those additional charges to a consumer wholly incurred as a result of the acquisition of the motor vehicle. For the

       purposes of this chapter, collateral charges include, but are not limited to, manufacturer-installed or agent-installed items or service charges, earned finance charges, sales taxes, and title charges.

    3. "Consumer" means the purchaser, other than for purposes of resale, or the lessee, of a motor vehicle primarily used for personal, family, or household purposes; any person to whom such motor vehicle is transferred for the same purposes during the duration of the Lemon Law rights period; and any other person entitled by the terms of the warranty to enforce the obligations of the warranty.

    4. "Division" means the Division of Consumer Services of the Department of Agriculture and Consumer Services.

    5. "Incidental charges" means those reasonable costs to the consumer which are directly caused by the nonconformity of the motor vehicle.

    6. "Lease price" means the aggregate of:

       1. Lessor's actual purchase costs.

       2. Collateral charges, if applicable.

       3. Any fee paid to another to obtain the lease.

       4. Any insurance or other costs expended by the lessor for the benefit of the lessee.

       5. An amount equal to state and local sales taxes, not otherwise included as collateral charges, paid

          by the lessor when the vehicle was initially purchased.

       6. An amount equal to 5 percent of (a).

    7. "Lemon Law rights period" means the period ending

       1 year after the date of the original delivery of a motor vehicle to a consumer or the first 12,000 miles of operation, whichever occurs first.

    8. "Lessee" means any consumer who leases a motor vehicle for 1 year or more pursuant to a written lease agreement which provides that the lessee is responsible for repairs to such motor vehicle or any consumer who leases a motor vehicle pursuant to a lease-purchase agreement.

    9. "Lessee cost" means the aggregate deposit and rental payments previously paid to the lessor for the leased vehicle less a reasonable offset for the lessee's use of the vehicle.

    10. "Manufacturer" means a manufacturer as defined in s. 320.60(9), a distributor as defined in s. 320.60(5), or an importer as defined in s. 320.60(7). A dealer as defined in s. 320.60(11)(a) shall not be

        deemed to be a manufacturer, distributor, or importer as provided in this section. The dealer or authorized service agent of the manufacturer, as referred to under this chapter, means a motor vehicle dealer licensed pursuant to s. 320.27(1)(c).

    11. "Motor vehicle" means a new vehicle, propelled by power other than muscular power, which is sold in this state and is primarily operated over the public streets and highways of this state to transport persons or property, and includes a vehicle used as a demonstrator or leased vehicle if a manufacturer's warranty was issued as a condition of sale, or the lessee is responsible for repairs, but does not include vehicles run only upon tracks, off-road vehicles, trucks over 10,000 pounds gross vehicle weight, the living facilities of recreational vehicles, motorcycles, or mopeds.

    12. "Nonconformity" means a defect or condition that substantially impairs the use, value, or safety of

        a motor vehicle, but does not include a defect or condition that results from an accident, abuse, neglect, modification, or alteration of the motor vehicle by persons other than the manufacturer or its authorized service agent.

    13. "Purchase price" means the cash price as defined in s. 520.31(1), inclusive of any allowance for a trade-in vehicle.

    14. "Reasonable offset for use" means the number of miles attributable to a consumer up to the date

        of the third repair attempt of the same nonconformity or the 20th cumulative calendar day when the vehicle is out of service by reason of repair of one or more nonconformities, whichever occurs first, multiplied by the purchase price of the vehicle and divided by 120,000.

    15. "Replacement motor vehicle" means a motor vehicle which is identical or reasonably equivalent to the motor vehicle to be replaced, as the motor vehicle to be replaced existed at the time of acquisition.

    16. "Warranty" means any written warranty issued by the manufacturer, or any affirmation of fact or

    promise made by the manufacturer, excluding statements made by the dealer, in connection with the sale of

    a motor vehicle to a consumer which relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is free of defects or will meet a specified level of performance.

    Chapter 681.109, Florida Statutes, states: Florida New Motor Vehicle Arbitration Board;

    dispute eligibility.

    1. If a consumer resorts to a manufacturer's certified informal dispute settlement procedure and a decision is not rendered or performed within the time designated in Title 16, Code of Federal Regulations, part 703, in effect October 1, 1983,

       the consumer may apply to the division to have the dispute removed to the board for arbitration.

    2. A consumer who resorts to a manufacturer's informal dispute settlement procedure and is not satisfied with the decision reached may apply to the division to have the dispute submitted to the board for arbitration. No manufacturer may seek review of a decision of its informal dispute settlement procedure.

    3. If a manufacturer has no certified informal dispute settlement procedure, a consumer may apply directly to the division to have the dispute submitted to the board for arbitration.

    4. The division shall screen all requests for arbitration before the board to determine eligibility. The consumer's request for arbitration before the board shall be made on a form prescribed by the Department of Legal Affairs. The division shall forward to the board all disputes that the division determines are potentially entitled to relief under this chapter.

    5. The division may reject a dispute that it determines to be fraudulent or outside the scope of the board's authority. Any dispute deemed by the division to be ineligible for arbitration by the board due to insufficient evidence may be

       reconsidered upon the submission of new information regarding the dispute. Following a second review, the division may reject a dispute if the evidence is clearly insufficient to qualify for relief.

       Any dispute rejected by the division shall be forwarded to the Department of Legal Affairs and a copy shall be sent by registered mail to the consumer and the manufacturer, containing a brief explanation as to the reason for rejection.

    6. If the division rejects a dispute, the consumer may file a lawsuit to enforce the remedies provided under this chapter. In any civil action arising under this chapter and relating to a matter considered by the division, any determination made to reject a dispute is admissible in evidence.

    
    

20. Rule 2-32.009, Florida Administrative Code, establishes the procedure for filing and processing requests for arbitration. The rule states:

    
    

    Processing of Arbitration Requests.

    1. The Division will screen the Requests for Arbitration and supporting documentation

       to determine if the request is timely, complete and complies with the jurisdictional requirements of ss. 681.104, 681.108, 681.109, and 681.1095,

       F.S., and shall either approve it as eligible for arbitration, reject it, or return it to the

       consumer as incomplete or lacking sufficient evidence.

       1. A request will be considered timely if it is received within 30 calendar days of the final action of a state

       dispute settlement procedure or within one year following expiration of the Lemon Law Rights Period.

    2. Submitted request forms shall be date

       by the Division upon receipt from the consumer. The screening and determination set forth in sub- section (1) above shall be made within 20 calendar days of the date of receipt of the request form.

       1. Submitted forms which are approved by the Division as eligible for arbitration shall be forwarded to the Department of Legal Affairs, Lemon Law Arbitration Program.

       2. The Division shall reject a form it determines to be fraudulent or outside the scope of the Board's authority. A rejected form shall be forwarded to the Department, and a copy shall be sent to the consumer and the manufacturer by registered mail,

          with a brief explanation of the reasons for rejection.

          1. Rejection for these reasons shall not toll the time for requesting arbitration set forth in s. 681.1095, F.S., and section 2.32.009(1)(a) of the rule chapter.

          2. If, after receipt of notice of rejection of a request for arbitration, the consumer wishes to pursue arbitration under the Program, he/she must submit a new Request for Arbitration to the Division.

       3. Forms which the Division determines are incomplete or lacking in sufficient evidence to determine eligibility shall be returned to the consumer promptly for completion or for the submission of new or additional evidence. A

       copy of the form shall be returned to the consumer along with a brief explanation indicating which portions of the form are incomplete or which assertions require further explanation.

       1. Such forms, when properly completed, and any supporting documentation must be mailed by the consumer to the Division within 30 days of receipt. If the consumer fails to return the completed form within 30 days and can provide a reasonable explanation to the Division for his/her failure

          to do so, the Division will extend the time for mailing the form an additional 30 days. The United States Postal Service postmark will be evidence of mailing; or, if a courier service is utilized, the shipping date of the courier service will be evidence of mailing.

       2. Failure by the consumer to return a completed or corrected form within 30 days where no extension

       has been granted, or within 60 days where an extension has been granted, will result in rejection of the request for arbitration. The consumer and manu- facturer shall be notified of such rejection in

       the same manner as is set forth at section 2.32.009(2)(b) of this rule chapter. The time for requesting arbitration set forth in s.

       681.1095, F.S., and section 2.32.009(1)(a) of

       this chapter will resume running upon mailing of the notice of rejection to the consumer.

       If the consumer thereafter wishes to pursue arbitration under the program, he/she must submit a new form to the Division. The time for requesting arbitration as set forth in s.

       681.1095, F.S., and section 2.32.009(1)(a)

       of this rule chapter will resume running upon mailing of the notice of rejection to the consumer.

       
       

21. In effect, Rule 2-32.009(2)(c), Florida Administrative Code, provides that the filing of an incomplete application tolls the running of the lemon law rights period 1/ for a period of 30 days after notification of an incomplete application. However, the time period for a second arbitration request does not begin to run again until the Division sends Petitioner a rejection notice.

    
    

22. In this case, Respondent did not mail a rejection notice to Petitioner until November, 1992.

    
    

23. Therefore, the time for requesting arbitration was still tolled when Petitioner filed his second application for Lemon Law Arbitration in October of 1992.

    
    

24. Since the time for filing was still tolled, the October, 1992, application was timely. Rule 2.32.009(2)(c)2., Florida Statutes.

    
    

25. Section 681.104(1)(a), Florida Statutes, requires that the consumer notify the manufacturer of the defect by certified or express mail and provide the manufacturer one last opportunity to cure the defect. In this case, Petitioner never supplied any evidence, either to the Department or at hearing, that he complied with the notice requirement. Therefore, Petitioner failed to establish that he was entitled to arbitration under the Lemon Law. Moreover, Petitioner cannot present the vehicle for one last attempt at repair, because he no longer owns the vehicle. Therefore, even if the time for filing never expired, it is impossible for petitioner to comply with this condition precedent to arbitration and Petitioner is not entitled to such arbitration.

    
    

26. Finally, by selling his vehicle, Mr. Thomas has abandoned his Lemon Law Claim, in that he no longer has an ongoing dispute with Ford Motor Company that requires arbitration and his request for such is moot.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Department of

Agriculture and Consumer Services denying Mr. Andrew Thomas' request for Lemon Law arbitration.

DONE AND ENTERED this 22nd day of September, 1994, in Tallahassee, Leon County, Florida.

DIANNE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1994.

ENDNOTES

1/ The rule cites the time tolled as being found in section 681.1095, Florida Statutes. However, the time restrictions found in that section of the statute cannot be what was intended. The times set forth in that section are not the time for requesting arbitration. It is most probable that it was intended to cite to section 681.109, Florida Statutes and the rule is interpreted in such a manner.

APPENDIX

1. The facts contained in paragraphs 1, 6 and 12 of Petitioner's Findings of Fact are adopted in substance, insofar as material.

2. The statements contained in paragraphs 8, 9 and 10 of Petitioner's Proposed Findings of Fact were subordinate.

3. The facts contained in paragraphs 2, 3, 4, 5, 7 and 11 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and

12 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

COPIES FURNISHED:

Andrew Thomas

317 South Gay Street Panama City, FL 32401

Barbara R. Edwards, Esquire Department of Agriculture Room 515, Mayo Building Tallahassee, FL 32399-0800

Richard Trischler General Counsel

Agriculture & Consumer Services The Capitol, PL-10

Tallahassee, FL 32399

Honorable Bob Crawford Commissioner of Agriculture Agriculture & Consumer Services The Capitol, PL-10

Tallahassee, FL 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 93-000815

Orders for Case No: 93-000815