STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDY MORROW, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0543

) FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on March 8, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Sandy Morrow, pro se

4022 Shamrock

Tampa, Florida 33611

For Respondent: John S. Koda, Esquire

Department of Agriculture & Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Petitioner should be certified by Respondent as qualified for arbitration services by the Office of the Florida Attorney General.

PRELIMINARY MATTERS

By letter dated November 30, 1994, Rudy Hamrick, a Senior Consumer Complaint Analyst with the Florida Department of Agriculture and Consumer Services, advised Petitioner that her Request for Arbitration of her dispute with Ford Motor Company under the Florida Lemon law, was denied as untimely. Petitioner thereafter requested formal hearing and this hearing followed.

At the hearing, Petitioner testified in her own behalf and introduced Petitioner's Exhibits 1 through 5. Respondent presented the testimony of James

1. Morrison, the Senior Consumer Services Supervisor in the Consumer Services Division of the Florida Department of Agriculture and Consumer Services, (Department). The parties together introduced Joint Exhibit 1.

   No transcript was presented and only Respondent submitted Proposed Findings of Fact which have been approved and are incorporated herein.

   
   

   FINDINGS OF FACT

   
   

   1. The Florida Department of Agriculture and Consumer Services is the state agency in Florida charged with the responsibility under the Florida Lemon Law to receive and evaluate customer complaints and Requests for Arbitration in disputes with automobile manufacturers and dealers doing business in this state, and to determine if the request qualifies for referral to the Attorney General for further processing and action.

      
      

   2. Michael F. Morrow, then the husband of Petitioner herein, Sandy Morrow, purchased a 1992 Ford explorer from Gary Brown Ford, Inc. in Hudson, Florida on April 8, 1992. The total purchase price was $19,967.94. A deposit of $1,000 was made at the time of the order, and the balance of $18,967.94 was paid in cash at the time of delivery of the vehicle on April 29, 1992.

      
      

   3. Less than one month after delivery, the Morrows began to have problems with the vehicle. On May 14, 1992 the vehicle would not start and was towed to the dealership for repairs. It was returned after 5 days. On September 21, 1992, the vehicle's paint was noticed to be chipping off and the vehicle was again returned to the dealer for correction. This time it was kept for 8 days. When, on September 28, 1992, Ms. Morrow went to retrieve the vehicle, she noticed that various chips had not been repaired, so she left it with the dealer for another 4 days.

      
      

   4. On November 22, 1993, Ms. Morrow replaced the battery in the vehicle. At this time, the vehicle was only 19 months old. A radio/cassette player problem noticed at that time was un-traceable and ignored by the dealer. However, on July 14, 1994, after parts on the vehicle had begun falling apart, Ms. Morrow again brought the vehicle in for repairs and left it for 1 day. At this time the dealer repaired the armrest. It also corrected a mildew odor in

      the air conditioning and a failure of that unit to cool; replaced missing screws in the driver's seat; and fixed the rear windshield washer which had broken off. In addition, the radio/cassette player problem still existed and was not fixed.

      
      

   5. On August 8, 1994, because the radio/cassette player was still not working, Ms. Morrow returned the vehicle to the dealer and left it for 16 days until August 23, 1994. Approximately one month later, on September 24, 1994, while Ms. Morrow was on vacation with the vehicle, the air conditioning stopped working. Having achieved no satisfaction from the dealer, Ms. Morrow took the vehicle to another mechanic who repaired the unit in one day. Nonetheless, four days later, on September 28, 1994, when Ms. Morrow opened the vehicle door, the door lock fell out. No tampering with the lock could be found, and the vehicle was in repair for 1 day.

      
      

   6. On November 1, 1994, the rear window washer stopped working and the vehicle was in the shop for 1 day. The following day, Bill Currie Ford, a Tampa Ford dealership, took the vehicle in for repainting due to fading. The vehicle was in the shop for 21 days. When it was returned, Ms. Morrow noticed that the interior was coated with a red/orange residue, the carpets were not reinstalled, and various parts were left lying inside. When she complained, she was told by the service manager that they had had to take the car apart to repaint it. The following day, the dealership cleaned the paint residue from the inside of the vehicle, but Ms. Morrow had to reinstall the carpet and replace some of the parts herself.

   7. While all this was going on, and since she was still getting little, if any, satisfaction from the dealer, Ms. Morrow telephoned the Department's Office of Consumer Services. The individual with whom she spoke advised her to go through the Ford Motor Company consumer appeals process first. As a result, on August 16, 1994, Ms. Morrow wrote to the Ford Consumer Appeals Board and outlined her litany of complaints regarding the vehicle in question. By letter dated October 8, 1994, the Dispute Settlement Board of Ford Motor Company advised Ms. Morrow that since most of her complaints, those relating to the paint, rear washer, arm rest, seat, radio and air conditioner, had been resolved, it was the unanimous opinion of the Board that she be offered a 12 month/12,000 mile Extended Service Plan and be reimbursed $10.60 for air deodorizing.

      
      

   8. Ms. Morrow was also advised that if she rejected this offer in settlement, she could pursue arbitration with the Florida New Motor Vehicle Arbitration Board administered by the office of the Florida Attorney General. She was also notified of the fact that her Request for Arbitration must be filed within either 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action by Ford's board, whichever was later.

      
      

   9. On November 17, 1994, Ms. Morrow signed her Request for Arbitration which was received in the Department on November 22, 1994. The Request was reviewed and a decision made to reject it as untimely on November 30, 1994. That decision was communicated to Ms. Morrow in Mr. Hamrick's letter mentioned previously.

      
      

   10. The decision to reject Ms. Morrow's Request for Arbitration as untimely was based on a calculation of the time which elapsed after the decision of the Ford Settlement Board on October 8, 1994. The Department computed the thirty days period to expire on November 7, 1994. The Lemon Law rights period of 18 months from the date of delivery of the vehicle expired on October 29, 1993. However, because at that time all complaints regarding the vehicle had not been corrected, it was extended to April 29, 1994. Under either scenario, and applying that most liberal to Ms. Morrow, her Request for Arbitration, signed on November 17, 1994, and received by the Department on November 22, 1994, was considered untimely.

       
       

   11. Under the terms of the Florida Lemon Law, if the complainant does not meet the eligibility requirements for requesting arbitration, the Department has no authority to send the complaint to the Attorney General for arbitration.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

       
       

   13. Under the provisions of Section 681.109(5), Florida Statutes, the Department is required to screen for eligibility all requests for arbitration under the Florida Lemon Law. Section 681.109(4) requires dissatisfied vehicle owners to request arbitration within 6 months of the expiration of the Lemon Law rights period which is defined at Section 681.102(9) as:

       
       

       ... 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.

       
       

   14. The 18 month period may be extended under the Lemon Law for an additional 6 months, at the expiration of the initial period, if a nonconformity has been reported to the manufacturer but has not been cured by the expiration of the initial 18 month period. In the instant case, Ms. Morrow's initial expiration date was October 29, 1993, but because, on that date, problems still existed with the vehicle which had not been rectified by the manufacturer, the expiration date was extended by 6 months until April 29, 1994. Thereafter, under the terms of the Lemon Law, she had 6 months to file her request for arbitration with the Division. That period expired on October 29, 1994.

       
       

   15. An alternate method of calculating eligibility permits the request for arbitration be filed within 30 days after the final action of a certified procedure. The law permits the application of whichever procedure results in the latest date. In the instant case, Ms. Morrow was in negotiations with Ford's Consumer Appeals Board and its Dispute Settlement Board, which did not render its decision until October 8, 1994. Ms. Morrow had 30 days from that date, until November 7, 1994, to file her request for arbitration with the Department.

       
       

   16. It is clear that Ms. Morrow has a legitimate basis for dissatisfaction with the manufacturer of her vehicle. However, since she did not file her request for arbitration until November 22, 1994, some 15 days after the latest possible filing date, her request was untimely under the terms of the Florida Lemon Law. The Department has no authority to forward her request to the Office of the Attorney General for arbitration services. The filing time as stated in the statute being jurisdictional, it cannot be waived.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be issued by the Department of Agriculture denying Ms. Morrow's request for arbitration services.

RECOMMENDED this 4th day of April, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 4th day of April, 1995.

COPIES FURNISHED:

Sandy Morrow 4022 Shamrock

Tampa, Florida 33611

John S. Koda, Esquire Department of Agriculture

and Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

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 - PL10

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 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-000543

Orders for Case No: 95-000543