vs. ) CASE NO. 95-5030
) 737 TRANS SERVICE INC. d/b/a ) AAL TRANSMISSION WORLD, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 17, 1996, in Winter Haven, Florida.
The issue in this case is whether the allegations of the Administrative Complaint are correct and if so, what penalty should be imposed.
By Administrative Complaint dated September 11, 1995, the Department of Agriculture and Consumer Services alleges that the Respondent has violated the provisions of the Florida Motor Vehicle Repair Act. The Respondent requested a formal hearing. The Department forwarded the matter to the Division of Administrative Hearings which scheduled the proceeding
At the hearing, the Petitioner presented the testimony of 14 witnesses and had exhibits numbered 1-25. Respondent presented no testimony
A transcript of the hearing was filed. The Petitioner filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
The Department of Agriculture and Consumer Services, Bureau of Motor Vehicle Repair, is responsible for enforcement of the Florida Motor Vehicle Repair Act.
737 Trans Service Inc. is a corporation doing business as AAL Transmission World (AAL) at 737 Northwest Sixth Street in Winter Haven, Florida.
AAL is registered with the Department of Agriculture and Consumer Services as a transmission repair shop, registration number MV-13472.
Fred Crisante is the president of 737 Transmission Service, Inc. Mr. Crisante signed the Department registration forms for 1994 and 1995.
AAL advertised a $14.95 transmission special with a coupon in the local telephone book. The special included a transmission tune-up, including new fluid, cleaning of the pan and screen, replacement of gasket, adjustment of bands and linkage, check of U-joints, a road test, and check for leaks.
Several witnesses testified that the reason they brought their vehicles to AAL was because they'd seen the telephone book advertisement for the $14.95 special.
In October 1994, Shirley Howland Dominy had her 1988 Chevy towed to AAL. The vehicle was not shifting properly into reverse gear. She had the car taken to AAL for diagnosis of the problem.
A few days after the car was towed to AAL, she received a telephone call from a man identified as Larry Brinkman, who told her that the transmission repair would cost $1,577. Mrs. Dominy declined to authorize the repair.
When Mrs. Dominy went to AAL to retrieve the car, she was told that she had to pay $189 cash to have the vehicle returned.
AAL advertised that cash, credit cards and checks would be accepted. Not having the payment in cash, Mrs. Dominy offered to pay by check or credit card, but was told that cash only was required.
Mrs. Dominy obtained the cash and made the payment. She was required to sign an estimate statement indicating she had authorized the work. After she paid the bill and signed the authorization, she received her disassembled transmission in a box.
Mrs. Dominy was told by the next repair shop that AAL had not returned all the parts to her transmission. The shop repaired her transmission for $350.
In December 1994, Robin Beaumont drove his car to AAL to have his 1991 Plymouth transmission serviced. Mr. Beaumont requested a $14.95 service special which AAL had advertised.
Mr. Beaumont had no problems with the transmission when he took the car to AAL. Two weeks previously, the car had been inspected at the dealership and no problems had been reported..
After arriving at AAL, MR. Beaumont met Larry Brinkman who test drove the vehicle before Mr. Beaumont left it at the shop. Mr. Brinkman did not report any problems after the test drive.
Mr. Beaumont went to lunch with his wife. A few hours later, he returned to AAL and discovered his transmission had been disassembled. He was shown metal shavings, supposedly from his transmission.
Mr. Beaumont had received no written estimate or disclosure prior to the disassembly. He had not authorized the disassembly.
Larry Brinkman told Mr. Beaumont that his transmission repairs would cost $1,490. Mr. Beaumont refused to authorize the work and demanded that his transmission be reassembled. Mr. Brinkman then began reducing the charge until he offered to do the work for $900. None of the estimates were reduced to writing. Mr. Beaumont continued to refuse the repair and demand that the transmission be reassembled.
Mr. Brinkman took Mr. Beaumont into the office of Fred Crisante. Mr. Crisante eventually offered to do the work for $490. Mr. Beaumont refused to authorize the work.
Mr. Beaumont was forced to sign a repair estimate for $490 in order to secure the return of his vehicle.
Eventually, Mr. Beaumont paid AAL approximately $460 to have his transmission reassembled. He received no written invoice or parts list.
The day after the car was taken to AAL, Mr. Brinkman retrieved the vehicle and began driving. Shortly thereafter, the vehicle broke down, apparently due to a transmission part which was improperly attached.
In November 1994, Lucinda Shelby and her husband, Garrett, had their 1987 Oldsmobile towed to AAL. The vehicle transmission was not shifting correctly and a hose appeared to be leaking.
A few days after the car was towed, Mr. Shelby received a call from a man identified as Larry Brinkman, who advised that the transmission needed to be disassembled and pressure cleaned at a cost of not more than $350, before the problem could be diagnosed. Mr. Shelby advised the caller to contact his wife when she returned home later that day.
When Mrs. Shelby returned home, she contacted AAL and was told that the repair cost would be $1,400.
Mrs. Shelby went to the AAL facility and found that the transmission had been disassembled. She was shown a transmission pan and instructed to feel the metal shavings in the pan. She did as she was told, but felt no shavings.
Mrs. Shelby declined to pay $1,400 for repair of the vehicle.
The Shelbys received no written estimate or disclosure prior to the disassembly of their transmission.
Mrs. Shelby was told that it would cost $240 to have the transmission reassembled without repair. She declined to pay the amount.
Mrs. Shelby posted a bond with the Polk County Court and had her vehicle returned to her custody. The disassembled transmission was returned to her in a box.
Mrs. Shelby eventually had her bond returned to her. The vehicle transmission was repaired at another shop for $829.
In November 1994, Hubert Fields took his 1985 Chrysler to AAL after hearing a thumping sound coming from what Mr. Fields believed was the vehicle differential.
At AAL, Mr. Fields met Larry Brinkman. Mr. Fields left the vehicle with Mr. Brinkman for diagnosis. When Mr. Fields returned, he was shown sediment, and told that the transmission needed repair. Mr. Fields was given an estimate of $1,198 to repair the vehicle. Mr. Fields authorized the repair.
When Mr. Fields returned to AAL to get the vehicle, he did not receive an invoice listing parts replaced or repaired and the cost of such parts. He requested the parts list several times, but it was never received
Within five days of retrieving the vehicle from AAL, and while Mr. Fields was driving the vehicle, the transmission failed and had to be replaced by another repair facility.
In May 1995, based on consumer complaints, the Department began an investigation in cooperation with the Polk County Sheriff's Department.
Investigators obtained a 1987 Lincoln Town Car without transmission problems and in good operating condition.
The car was taken to a reputable transmission shop where it was examined. The transmission was disassembled and transmission parts were marked using a metal stamp with the initials ("BB") of the qualified mechanic doing the examination. The transmission was reassembled.
On May 31, 1995, the Lincoln Town Car was taken by a civilian employee of the Sheriff's Department to the Respondent's location.
The employee wore a body wire. Investigators monitored the conversation.
The employee met with Mason Benfield, an AAL service manager, and asked for the $14.95 special and to have the transmission checked.
After waiting for a time, Mr. Benfield returned and told the employee that there were metal slivers in her transmission pan, indicative of an internal transmission problem.
Mr. Benfield showed a transmission pan to the employee and asked her to feel the metal slivers. He also indicated that the transmission was leaking and needed to be disassembled.
Metal slivers or particles in a transmission pan are not unusual and do not indicate existence of transmission problems or the need for repair.
The employee left the shop and returned with an investigator, who posed as the employee's brother. Another investigator continued to monitor the
listening device. At that time, both the employee and her "brother" were introduced to Fred Crisante.
Mr. Crisante took the pair into the shop and told them the transmission required extensive work. According to him, the oil pressure was poor and numerous parts required replacement. The employee authorized the work.
On June 1, 1995, the employee returned to the shop to retrieve the vehicle. She paid $1,126.56 for the "repair." She asked for the used parts and was told they'd been discarded.
The AAL invoice listed the following parts as having been used in the repair: master overhaul kit without steel plates; pump body with gears or rotor; band front or intermediate; band rear or reverse; small parts kit thrust washers; small parts kit bushings; valve body assembly service and reuse; ATF fluid and gear oil; rebuilt torque converter.
The vehicle was immediately driven to the reputable transmission shop where it was originally checked. The transmission was disassembled and transmission parts were examined.
The examination revealed the following: used clutches were installed although new ones would have been included in the master overhaul kit; the pump body and stator (which is bolted to the pump body) were the originals marked BB and had not been replaced; the band front or intermediate was marked "BB" and had not been replaced; and the band rear or reverse was a used, rather than new, part. The torque converter did not need rebuilding. The thrust washers and bushings did not need replacement.
The transmission did not need to be rebuilt. There were no problems with the vehicle prior to being taken to AAL.
The Petitioner presented testimony and evidence related to additional transactions between the Respondent and Sharon Gutterson, Robert Wilkes, Frances Wright and Darlene Smith. The additional evidence establishes that the incidents identified herein were not caused by mistake or accident, but were part of the plan of operation for the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The Administrative Complaint includes allegations related to persons identified as Renee Mosely and Elena Melton. No testimony was presented as to these allegations. The evidence related to such allegations is insufficient to support findings of fact. As to the other allegations in the Administrative Complaint, the burden has been met.
The Florida Motor Vehicle Repair Act (Sections 559-901-559.9221, Florida Statutes,) applies to all motor vehicle repair shops in Florida. The
Respondent in this case is a motor vehicle repair shop and is subject to the provisions of the Act.
Section 559.905(1), Florida Statutes, provides that when any customer requests that a motor vehicle repair shop perform repair work in excess of $50 on a motor vehicle, the shop must prepare a written repair estimate, setting forth the estimated cost of diagnostic and repair work before commencing the work or repair. The specific contents of the written repair estimate statement are identified in this section, and in relevant part, include odometer readings, proposed work completion dates, estimated costs, how such costs are calculated, work guarantees, and whether replaced parts should be delivered to the customer.
Section 559.905(2), Florida Statutes, requires that a written repair estimate include a disclosure form advising the customer of the right to a written estimate and providing for signed notation indicating the customer's exercise or waiver of the right to the written estimate.
Section 559.905(4), Florida Statutes, requires that a copy of the written repair estimate and disclosure form be provided to the customer prior to the commencement of repair work.
Section 559.907(2), Florida Statutes, provides that it is unlawful for a motor vehicle repair shop to require that a customer waive his rights under the Florida Motor Vehicle Repair Act as a precondition to repair of the customer's vehicle.
Section 559.905(5), Florida Statutes, provides that if a vehicle owner leaves a car at a motor vehicle repair shop when the shop is not open, or if the vehicle owner permits another person to deliver the vehicle to the shop, there shall be an implied waiver of the customer's right to a written repair estimate; however, upon the completion of diagnostic work necessary to estimate the cost of repair, notification shall proceed as set forth in section 559.901(1)
In relevant part, Section 559.909(1), Florida Statutes, provides that in the event an implied partial waiver exists pursuant to Section 559.905(5), Florida Statutes, and that diagnostic work is completed, the customer shall be promptly notified by telephone, telegraph, mail or other means of the additional repair work and estimated costs. The customer so notified shall, orally or in writing, authorize, modify, or cancel the order for repair.
Section 559.909(2), Florida Statutes, provides that in the event a customer cancels a repair order after being advised that the estimated cost exceeds that previously estimated, the repair shop shall expeditiously reassemble the vehicle into a condition reasonably similar to the condition in which it was received unless the customer waives reassembly or unless the reassembled vehicle would be unsafe. The shop may charge for the teardown, including destroyed parts and labor to replace the destroyed items, provided the customer was notified of such possible costs prior to authorizing the diagnostic work.
Section 559.909(4), Florida Statutes, provides that it is unlawful for any motor vehicle repair shop to fail to return any customer's motor vehicle because the customer has refused to pay for unauthorized repairs or because the customer has refused to pay repair charges in excess of the final estimate.
In relevant part, Section 559.911, Florida Statutes, provides as follows:
559.911 Invoice required of motor vehicle repair shop. -- The motor vehicle repair shop shall provide each customer, upon completion of any repair, with a legible copy of an invoice for such repair. The invoice may be provided on the same form as the written repair estimate and shall include the following information:
(1) The current date and odometer reading of the vehicle.
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(3) An itemized description of all labor, parts, and merchandise supplied and the costs thereof, indicating what is supplied to the customer without cost or at a reduced cost because of a shop or manufacturer's warranty.
Section 559.919, Florida Statutes, provides that no motor vehicle repair shop may refuse to return a customer's motor vehicle by virtue of any miscellaneous lien, nor may it enforce such a lien in any other fashion if it has failed to substantially comply with the provisions of this part.
In relevant part, Section 559.920, Florida Statutes, provides as follows:
559.920 Unlawful acts and practices. -- It shall be a violation of this act for any motor vehicle repair shop or employee thereof to:
Make or charge for repairs which have not been expressly or impliedly authorized by the customer;
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Misrepresent that repairs have been made to a motor vehicle;
Misrepresent that certain parts and repairs are necessary to repair a vehicle;
Misrepresent that the vehicle being inspected or diagnosed is in a dangerous condition or that the customer's continued use of the vehicle may be harmful or cause great damage to the vehicle;
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Make or authorize in any manner or by any means whatever any oral or written statement which is untrue, deceptive or misleading, and which is known, or which by the by the exercise of reasonable care should be known, to be untrue, deceptive or misleading;
Make false promises of a character likely to influence, persuade, or induce a customer to authorize the repair, service, or maintenance of a motor vehicle.
Substitute used, rebuilt, salvaged, or straightened parts for new replacement parts without notice to the motor vehicle owner and to his insurer if the cost of repair is to be paid pursuant to an insurance policy and the identity of the insurer or its claims adjuster
is disclosed to the motor vehicle repair shop;
Cause or allow a customer to sign any work order that does not state the repairs requested by the customer or the automobile's odometer reading at the time of the repair;
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(13) Willfully depart from or disregard accepted practices and professional standards.
Based on the documents and testimony of witnesses attending the hearing, the clear and convincing evidence establishes that the Respondent has violated the aforementioned statutes.
The Respondent failed to provided written repair estimates prior to commencement of the work and failed to advise customers of the right to a written estimate. Customers who had vehicles towed to the Respondent's shop were not provided repair estimates or provided an opportunity to authorize or cancel the work prior to commencement of the work.
The Respondent required customers to waive their rights to written estimates in order to secure the repair or return of their vehicles. Customers were required to pay for the cost of unauthorized disassembly of transmissions in order to secure the return of their vehicles. The Respondent refused to return vehicles when owners declined to pay for unauthorized repairs. Itemized invoices were not provided. Invoices that were provided falsely identified the work allegedly performed.
The Respondent made and charged for repairs which were not expressly or impliedly authorized by the customer, misrepresented that repairs were made to a motor vehicle, misrepresented that certain parts and repairs were necessary to repair a vehicle, made oral statements which were untrue, deceptive or misleading, and which were known to be untrue, deceptive or misleading, substituted used or rebuilt parts for new replacement parts, and caused customers to sign work orders that did not state the repairs requested by the customer or the automobile's odometer reading at the time of the repair
Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order revoking the Respondent's registration number MV-13472 as a motor vehicle repair shop
DONE and ENTERED this 12th day of April, 1996 in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1996.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5030
To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties.
The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
9. Rejected as to reference to AAL facilities not charged in the Administrative Complaint at issue in this proceeding.
37-46. Rejected, subordinate.
67. Rejected as witness recollection of others shown metal shavings, cumulative.
74. Rejected, hearsay.
89-94. Rejected, subordinate.
105-123. Rejected, subordinate.
The Respondent did not submit a proposed recommended order.
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.
