STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMINE CAVASENO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5987

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on May 3, 1996. Respondent's counsel and witness attended the hearing in Tallahassee. Petitioner and the court reporter attended the hearing in Ft. Myers.

APPEARANCES

For Petitioner: Carmine Cavaseno, pro se

2722 Fountain View Circle Apartment Number 104

Naples, Florida 33942

For Respondent: Attorney Rhonda Long Bass

Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to arbitration on his claim under the Florida Motor Vehicle Warranty Enforcement Act.

PRELIMINARY STATEMENT

By letter dated June 19, 1995, Respondent informed Petitioner that he was not entitled to arbitration under the Florida Motor Vehicle Warranty Enforcement Act, Chapter 681, Florida Statutes, because he had purchased his automobile outside the State of Florida and thus the automobile did not qualify as a "motor vehicle" under the law.

By letter dated July 16, 1995, Petitioner demanded a formal administrative hearing on his request for arbitration.

At the hearing, Petitioner called one witness and offered into evidence two exhibits. Respondent called one witness and offered into evidence three

exhibits. All exhibits were admitted. However, Petitioner failed to file Petitioner Exhibit 2, which is thus deemed withdrawn. The filing of the exhibit would not have changed the outcome of the case.

The parties did not order a transcript. Respondent filed a proposed recommended order. All of Respondent's proposed findings are adopted or adopted in substance except for the last three paragraphs, which are rejected as irrelevant.

FINDINGS OF FACT

1. Petitioner resides in Naples, Florida. He has resided in Naples since December 1992. Petitioner formerly resided in the New York City area.

   
   

2. When he became interested in purchasing a new automobile, Petitioner contacted a friend of his son. The friend worked at North Shore Oldsmobile in Flushing, New York. Petitioner soon entered into negotiations with a sales representative of the Flushing dealership for the purchase of a new 1993 Oldsmobile Cutlass Cierra.

   
   

3. Petitioner conducted these negotiations, which took place in April 1993, exclusively by telephone with Petitioner in Naples and the sales representative at the dealership in New York. Petitioner wanted a stationwagon, and the dealership had one car of this type in stock. It was the right color and had most of the options that Petitioner wanted. After a week or ten days of negotiating the price over the telephone, Petitioner, satisfied with the price, agreed to purchase the car, and North Shore Oldsmobile agreed to sell the car.

   
   

4. Petitioner and representatives of the dealership then discussed by telephone financing arrangements. After they finished working out the details, Petitioner agreed to come to Flushing, New York to pick up the car. They agreed that Petitioner would take delivery of the car on May 3, 1993.

   
   

5. Prior to Petitioner's departure, North Shore Oldsmobile sent him by mail in Naples various papers that Petitioner needed to complete prior to taking delivery. A North Shore Oldsmobile representative informed Petitioner that he was required to obtain insurance and sent him sufficient information so that he could obtain insurance in Florida prior to traveling to New York to get the car. North Shore Oldsmobile also sent Petitioner a copy of the retail instalment sales contract.

   
   

6. Petitioner and some friends drove to New York, and, on the appointed day, Petitioner visited North Shore Oldsmobile in Flushing and either signed the closing papers at the dealership or delivered already-signed closing papers to the dealership. Petitioner also paid the necessary amounts to North Shore Oldsmobile at the dealership. North Shore Oldsmobile did not charge Petitioner any New York sales tax, but disclosed the amount of Florida use tax that Petitioner would be required to pay on registering the new car in Florida. Petitioner then took possession of the automobile, which he claims did not satisfactorily operate on the trip back to Florida or thereafter.

   
   

7. Upon his return to Florida, Petitioner registered the new car in Florida and paid the Florida use tax, as well as title, tag, and registration fees imposed under Florida law.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

9. Section 681.109 provides for arbitration for certain claims under Chapter 681 if filed within a certain period of time following the expiration of the "Lemon Law rights period." Section 681.102(9) defines the "Lemon Law rights period" in terms of a certain period of time following the purchase of a "motor vehicle." Section 681.102(14) defines "motor vehicle" as "a new vehicle . . . which is sold in this state "

   
   

10. The liability of a dealer under the Motor Vehicle Warrant Enforcement Act is predicated on the sale of the vehicle in Florida. The statute focuses on the sale, not the purchase. Thus, the focus is on the location of the vendor, not the vendee.

    
    

11. North Shore Oldsmobile sold Petitioner the Oldsmobile Cutlass Cierra stationwagon in New York. The closing took place in New York. The dealership delivered the car to Petitioner in New York. A few aspects of this transaction took place in Florida, but the sale clearly did not.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing Petitioner's request for arbitration under the Motor Vehicle Warranty Enforcement Act.

ENTERED on May 22, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 22, 1996.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler, General Counsel Department of Agriculture

The Capitol, PL-10

Tallahassee, Florida 32399-0810

Carmine Cavaseno

2722 Fountain View Circle Apartment Number 104

Naples, Florida 33942

Attorney Rhonda Long Bass Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

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 within which to submit written exceptions. Some agencies allow a longer period within which to submit written exceptions. You should contact the agency that will issue the final order 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.

Docket for Case No: 95-005987

Orders for Case No: 95-005987