STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY COKE, )

)

Petitioner, )

)

vs. )

) CASE NO. 95-3511 FLORIDA DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 27, 1995, in Orlando, Florida. The parties, witnesses, and court reporter attended the formal hearing in Orlando. The undersigned participated in the formal hearing by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Dorothy Coke, pro se

2927 Monte Carlo Trail Orlando, Florida 32805

For Respondent: Rhonda Long Bass, Esquire

Legal Division

Florida Department of Agriculture & Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-1800

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner timely filed her request for arbitration under Chapter 681, Florida Statutes. 1/

PRELIMINARY STATEMENT

Respondent denied Petitioner's request for arbitration by letter dated May 19, 1995. Petitioner timely requested a formal hearing.

At the formal hearing, Petitioner testified in her own behalf but called no other witnesses and submitted no exhibits for admission in evidence. Respondent presented the testimony of Mr. Jim Morrison, Consumer Complaint Analyst Supervisor for Respondent.

Respondent submitted two exhibits for admission in evidence. Respondent's Exhibit 1 is a composite exhibit consisting of copies of Petitioner's first request for arbitration and related correspondence. Respondent's Exhibit 2 is a

composite exhibit consisting of Petitioner's second request for arbitration and related correspondence. Respondent's Exhibits 1 and 2 were admitted in evidence without objection.

A transcript of the formal hearing was not requested by either party. The parties timely filed their respective proposed recommended orders ("PRO"s) on October 13, 1995. The proposed findings of fact of both parties are accepted in this Recommended Order.

FINDINGS OF FACT

1. Respondent is the governmental agency responsible under Chapter 681 for receiving and evaluating consumer complaints and requests for arbitration that are filed against automobile manufacturers and dealers doing business in the state. Respondent is required to determine if a consumer's request for arbitration should be referred to the Attorney General for arbitration.

   
   

2. Petitioner is a consumer within the meaning of Section 681.102(4). Petitioner purchased a motor vehicle for personal use and took delivery of the motor vehicle on September 15, 1992 (the "motor vehicle"). 2/

   
   

3. Petitioner filed two requests for arbitration for her motor vehicle. Petitioner filed her first request for arbitration on February 22, 1995. She filed her second request for arbitration on May 16, 1995.

   
   

4. By letter dated March 7, 1995, Respondent notified Petitioner that her first request for arbitration lacked certain required information and returned the request for arbitration to Petitioner. Petitioner voluntarily withdrew her first request for arbitration on April 12, 1995. Respondent closed its file regarding the first request for arbitration.

   
   

5. On May 16, 1995, Petitioner filed her second request for arbitration. Pursuant to a letter dated May 19, 1995, Respondent denied Petitioner's second request for arbitration on the grounds that it was not timely filed.

   
   

6. Petitioner is generally required under Chapter 681 to file her request for arbitration within the time defined in Section 681.102(9) as the "Lemon Law rights period" (the "initial rights period"). The initial rights period expires on the earlier occurrence of two dates. The first date is 18 months from the date of delivery. The second date is the date that the motor vehicle accumulates 24,000 miles.

   
   

7. The dealer delivered the motor vehicle to Petitioner on September 15, 1992. Eighteen months from the date of delivery was March 15, 1994. The motor vehicle accumulated 24,000 miles on September 16, 1993. The initial rights period expired on September 16, 1993, because that date occurred earlier than March 15, 1994.

   
   

8. The initial rights period is extended, pursuant to Section 681.104(3)(b), for six months if there are any uncured nonconformities (the "extension period"). Petitioner experienced uncured nonconformities in the gear shift mechanism of the motor vehicle.

   
   

9. The gear shift arm buzzes when the motor vehicle is driven in a forward gear. The gear shift arm jumps out of gear when the motor vehicle is being driven in reverse. 3/

10. Petitioner took the motor vehicle in for repair four times for the problem with the gear shift mechanism. The dealer attempted to repair the problem on: August 6, 1992, when the vehicle had accumulated 3,987 miles; September 16, 1993, when the vehicle had accumulated 24,000 miles; 4/ January 9, 1995, when the vehicle had accumulated 38,568 miles; and January 30, 1995, when the vehicle had accumulated 39,087 miles. The dealer never repaired the problem with the gear shift mechanism.

    
    

11. The motor vehicle accumulated 24,000 miles on September 16, 1993. The extension period extended the time in which Petitioner was entitled to file her request for arbitration from September 16, 1993, until March 16, 1994.

    
    

12. Respondent added 51 days to the time in which Petitioner was allowed to file a request for arbitration to reflect the period of time from the date Petitioner filed her first request for arbitration, on February 22, 1995, until she voluntarily withdrew her first request for arbitration on April 12, 1995. Fifty-one days from the last date of the extension period, March 16, 1994, expired on May 7, 1994.

    
    

13. Petitioner filed her second request for arbitration on May 16, 1995, approximately one year after May 7, 1994. Petitioner did not file her second request for arbitration in a timely manner. 5/

    
    

14. Petitioner's second request for arbitration was not filed in a timely manner under the alternative deadline for filing a request for arbitration. Even if it is assumed that the motor vehicle did not accumulate 24,000 miles until 18 months after the date of delivery of the vehicle, Petitioner did not file her second request for arbitration in a timely manner. 6/

    
    

15. The dealer delivered the motor vehicle on September 15, 1992. The initial period of 18 months expired on March 15, 1994. The extension period expired on September 15, 1994. Fifty-one days from the expiration of the extension period was November 5, 1994. Petitioner did not file her request for arbitration until May 16, 1995.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

17. Petitioner has the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise specifically established. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977). Petitioner must show by a preponderance of the evidence that she filed her second request for arbitration in a timely manner.

    
    

18. Petitioner failed to satisfy her burden of proof. Petitioner failed to show by a preponderance of evidence when the motor vehicle actually accumulated 24,000 miles or that her request for arbitration was filed in a timely manner.

19. Section 681.102(9) provides that the "Lemon Law rights period" is:

    
    

    . . . 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.

    
    

    Section 681.104(3)(b) extends the initial rights period six months if a nonconformity has been reported but has not been cured by the manufacturer by the expiration of the initial rights period.

    
    

20. Petitioner did not file her request for arbitration in a timely manner. Petitioner's request for arbitration was untimely when the time for filing is computed under any time prescribed in Sections 681.102(9) or 681.104(3)(b). See also, Section 681.109(4) (requiring Petitioner, in relevant part, to file her request for arbitration six months after the expiration of the initial period).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's

request for arbitration as not timely filed.

RECOMMENDED this 31st day of October, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 31st day of October, 1995.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

2/ Petitioner purchased a 1992 Eagle Summit station wagon with approximately 1,000 miles on the odometer. Documentation in Respondent's exhibits indicates that the dealer delivered possession of the motor vehicle to Petitioner on August 16, 1992. However, Respondent stipulated at the hearing that it used the delivery date asserted by Petitioner, i.e., September 15, 1992, for the purpose of determining the timeliness of Petitioner's request for arbitration.

3/ Petitioner also took the motor vehicle in three times for repair of a problem with the sliding door. The dealer attempted to repair the problem with the sliding door on: November 6, 1992, when the vehicle had accumulated 6,364 miles; January 22, 1993, when the vehicle had accumulated 9,547 miles; and July

6, 1993, when the vehicle had accumulated 17,194 miles. Pursuant to Petitioner's testimony at the formal hearing, the dealer repaired the problem with the sliding door during the service performed on July 6, 1993.

Petitioner's sole claim under Chapter 681 is that she has had the motor vehicle in for repair of the problem in the gear shift mechanism three times and that the problem has not been repaired. Petitioner has taken the motor vehicle in for repair or service 12 times. Seven of those times were for repair of the problems with either the sliding door or the gear shift mechanism. The other five visits were for routine service and maintenance. Petitioner does not claim any remedy under Section 681.104(3)(a)2., i.e., that the motor vehicle was in for repair of more than one problem which, together, caused the vehicle to be in repair, and out of service, for 15 days or more.

4/ Petitioner stated in response to question 17.c. on the request for arbitration that the motor vehicle accumulated 24,000 miles on September 16, 1993. However, in response to question 20 on the request for arbitration and in her testimony at the formal hearing, Petitioner stated that, on September 16, 1993, the vehicle had accumulated 20,605 miles. Petitioner did not submit repair records that may have resolved the conflict. Even if it is assumed that the vehicle had accumulated only 20,605 miles on September 16, 1993, it is not outcome determinative. See, paras. 14 and 15, infra.

5/ Petitioner withdrew her first request for arbitration.

6/ Petitioner testified at the formal hearing that the motor vehicle had accumulated only 20,605 miles on September 16, 1993, and had accumulated 38,568 miles on January 9, 1995. Thus, Petitioner accumulated approximately 17,963 miles over a period of approximately 480 days. At the rate of 37.42 miles a day, the motor vehicle would have accumulated 24,000 miles 90 days from September 16, 1993, or December 16, 1993. Eighteen months from the date of

delivery was March 15, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3511

The proposed findings of fact in both parties' PROs are accepted in this Recommended Order.

COPIES FURNISHED:

Dorothy Coke, pro se 2927 Monte Carlo Trail Orlando, Florida 32805

Rhonda Long Bass, Esquire Legal Division

Florida Department of Agriculture & Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-1800

Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschier General Counsel 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 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: 95-003511

Orders for Case No: 95-003511