STATE OF FLORIDA

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES PEDRO PALAEZ,

vs.

Petitioner,

Case No. 94-5484

(DOAH Case No. 94-5484)

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES,

Respondent.

,!

FINAL ORDER

THIS CAUSE, arising under Chapter 681, Florida Statutes, came before the Commissioner of Agriculture of the State of Florida for consideration and final agency action.

The issue in this cause is whether Petitioner's Request for Arbitration by the

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Florida New Motor Vehicle Arbitration Board (hereinafter, the 11Board11 should be denied

on the ground that the request was not timely filed with this Department's Division of Consumer Services pursuant to Chapter 681, Florida Statutes.

On August 24, 1994, the Department issued its denial of Petitiioner's Request for Arbitration before the Board. Respondent timely filed a request for formal hearing, which was held on February 20, 1995.

The Recommended Order was issued on March 20, 1995, recommending that Petitioner's request be considered 11n ot time-barred11. (A copy of the Recommended Order is attached as Exhibit 11A"). The Department timely filed exceptions to the Recommended Order.

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Filed June 1, 2009 3:31 PM Division of Administrative Hearings.

RULING ON EXCEPTIONS

1. The Department first excepts to the hearing officer's finding that Petitioner's untimely filing of his request for arbitration was a result of representations by the dealer that the matter would be resolved to Petitioner's satisfaction. As the Department points out, evidence in the record indicates that Petitioner and his attorney were aware of the requirements of Chapter 681, Florida Statutes, the Motor Vehicle Warranty Enforcement Act, for more than four months prior to the deadline to request arbitration. There is evidence in the record of general assurances by the manufacturer that efforts would be taken on Petitioner's behalf to resolve his problems. In no sense, however, do these representations comprise an excuse for Petitioner's decision to not file a timely arbitration request.

2. The Department's remaining exceptions take issue with the hearing officer's consideration of the line of Florida cases dealing with the 11equitable tolling11 doctrine. These exceptions are well-taken. The deadline imposed by Section 681.109(4), Florida Statutes, for time allowed for filing arbitration requests, is not analagous to a statute of

limitation, but is in fact jurisdictional. La Floridienne v. Seaboard Air Line Ry., 59 Fla. 196, 52 So. 298,304 (Fla. 1910). In certain cases, the dealer's behavior toward the consumer may appear to warrant the equitable relief recommended by the hearing officer, but the Department has no authority to extend the time-deadline to allow the Board to provide

such relief. Sandy Morrow v. Florida Department of Agriculture and Consumer Services, DACS Docket No. 95-0003; DOAH Docket No. 95-0543 (Recommended Order issued

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April 4, 1995). The consumer always has the right to sustain a private right of action against the dealer for damages pursuant to Section 681.113, Florida Statutes.

Upon consideration of the foregoing, review of the record and the evidence submitted, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED:

1. Except as modified by the foregoing, the Hearing Officer's findings of fact are adopted as this Agency's findings of fact.

2. Except as modified by the foregoing, the Hearing Officer's conclusions of law are adopted as this Agency's conclusions of Law.

3. Pursuant to Section 681.109(4), Petitioner's Request for Arbitration by

the Florida New Motor Vehicle Arbitration Board is denied as untimely.

Any party to these proceedings adversely affected by this Final Order is entitled to seek review of the order pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the Clerk, Room 515, Mayo Building, Tallahassee, Florida 32399-0800, and a copy of the same with the appropriate District Court of Appeal

within thirty (30) days of rendition of this order.

DONE AND ORDERED this 14 day of /fl ,1995.

BOB CRAWFORD COMMISSIONER OF AGRI

--- /J (Q,Y-.-, r-

Ann H. Wainwright Assistant Commissio

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URE

FILED with the Clerk this day of )f/4

, 1995.

Copies furnished to: Joseph J. Portuondo, Esq.

Fitzgerald & Portuondo, P.A. International Place

100 SE 2nd St., Suite 2600

Miami, Florida 33131

Barbara R. Edwards, Esq. Room 515, Mayo Building Tallahassee, Florida 32399-0800

Stuart M. Lerner, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

James R. Kelly, Director Division of Consumer Services Room 235, Mayo Building Tallahassee, Florida 32399-0800

1 1/IL

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Legal Office 515 Mayo Bldg. Tallahassee, FL 32399-0800

Tel: 904/488-6851 Fax: 904/488-1766

Docket No. 95-0508

MEMORANDUM

DATE: April 27, 1995

TO: Richard Tritschler

FROM: John S. Koda

SUBJECT: Palaez, Pedro; Lemon Law; Final Order

Enclosed please find a Final Order for your review and, if all is in order, execution by the Assistant Commissioner. This matter involved a request for arbitration before the Florida New Motor Vehicle Arbitration Board which was denied by the Division as untimely. The DOAH hearing officer recommended that the matter be forwarded to the Board as a result of "equitable tolling" of the time limitation. The Department filed exceptions which are considered in the enclosed final order.

Thank you.

Docket for Case No: 94-005484

Orders for Case No: 94-005484