STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS M. ROMEO, )

)

)

Petitioner, )

)

vs. ) CASE NO. 94-6399

) FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case at Fort Lauderdale, Florida on March 2, 1995.

APPEARANCES

For Petitioner: No Appearance.

For Respondent: John S. Koda, Esquire

Senior Attorney

Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Whether Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be granted.

PRELIMINARY STATEMENT

On October 14, 1994, Petitioner submitted to Respondent a "Request for Arbitration by the Florida New Motor Vehicle Arbitration Board" pursuant to Chapter 681, Florida Statutes. By letter dated December 30, 1993, the Respondent notified Petitioner of its intention to deny his request for arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, on the grounds that the request was "... not submitted in a timely manner and is outside the scope of the Florida New Motor Vehicle Arbitration Board's authority. ...." Thereafter Petitioner requested a formal administrative hearing to challenge the Respondent's proposed action.

The matter was referred to the Division of Administrative Hearings, and this formal proceeding followed.

Petitioner made no appearance at the formal hearing. Respondent elected to go forward with the presentation of its case despite Petitioner's failure to appear or to present any evidence in support of his application. Respondent presented the testimony of James D. Morrison, an administrator of Respondent's Lemon Law section. Respondent's only exhibit was the Petitioner's application and the supporting documents attached thereto. This composite exhibit was accepted into evidence.

No transcript of the proceedings has been filed. Neither party submitted a post-hearing submittal.

FINDINGS OF FACT

1. On October 12, 1994, Petitioner signed a "Request for Arbitration by the Florida New Motor Vehicle Arbitration Board" (hereinafter referred to as the application). This application was received by Respondent on October 14, 1994.

   
   

2. Petitioner's application represented the following:

   
   

   1. He took delivery of the subject automobile on October 6, 1992.

   2. The automobile mileage at the time of delivery was 14 miles.

   3. The approximate date he put 24,000 miles on the automobile was August 25, 1993.

      
      

3. There was no appearance by or on behalf of the Petitioner at the formal hearing. The notice of hearing accurately set forth the date, time, and location of the formal hearing. This notice was duly mailed to the address that the Petitioner had provided and contained the following warning: "Failure to appear at this hearing shall be grounds for entry of an order of dismissal or recommended order of dismissal, as appropriate."

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden and his application for arbitration should be dismissed.

   
   

6. The representations made by Petitioner in his application are hearsay that cannont alone support findings of fact. See, Section 120.58(1)(a), Florida Statutes. For the reasons discussed below, it is clear that even if those representations are accepted as facts, Petitioner did not timely file his application for arbitration.

   
   

7. Section 681.1095, Florida Statutes, creates the "Florida New Motor Vehicle Arbitration Board" within the Florida Department of Legal Affairs. The Board has the authority to arbitrate disputes between a purchaser and the manufacturer of a new motor vehicle.

8. Section 681.102, Florida Statutes, provides the following definitions pertinent to this proceeding:

   
   

   (2) "Board" means the Florida New Motor Vehicle Arbitration Board.

   * * *

   (6) "Division" means the Division of Consumer Services of the Department of Agriculture and Consumer Services.

   * * *

   (9) Lemon law rights period" mean 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."

   
   

9. Section 681.109(4) and (5), Florida Statutes, provide, in pertinent part, as follows:

   
   

   1. A consumer must request arbitration before the board within 6 months after the expiration of the Lemon Law rights period ...

   2. The division shall screen all requests for arbitration before the board to determine eligibility. The consumer's request for arbitration 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.

   
   

10. Assuming that the information contained in his application is correct, Petitioner's "Lemon Law rights period" as

defined by Section 681.102(9), Florida Statutes, ended on August 25, 1993, when the vehicle first had 24,000 miles of operation. Since the application was not filed until October 1994, it is apparent that Petitioner's application was well beyond the filing deadline established by Section 681.109(4), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's "Request for Arbitration by the Florida New

Motor Vehicle Arbitration Board" be dismissed.

DONE AND ENTERED this 30th day of March, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 30th day of March, 1995.

COPIES FURNISHED:

John S. Koda, Esquire Department of Agriculture

and Consumer Services Mayo Building, Room 515

Tallahassee, Florida 32399-0800

Mr. Carlos M. R. Romeo 9977 Westview Drive #114

Coral Springs, Florida 33076

Honorable Bob Crawford Commissioner of Agriculture 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

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 ten 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: 94-006399

Orders for Case No: 94-006399