STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARTON T. COHEN, )

)

Petitioner, )

)

vs ) CASE NO. 96-0036

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 22, 1996, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Barton T. Cohen, pro se

7329 Catalina Isle Drive Lake Worth, Florida 33467

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

Whether Petitioner's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be denied on the ground that the request was not timely filed with the Department of Agriculture and Consumer Services, Division of Consumer Services (hereinafter referred to as the "Department")?

PRELIMINARY STATEMENT

By letter dated November 3, 1995, the Department notified Petitioner of its intention to deny his Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on the ground that the request had not been "submitted in a timely manner." Thereafter, Petitioner requested a formal administrative hearing on the propriety of the Department's proposed action. On January 5, 1996, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested.

The hearing was held on February 22, 1996. Two witnesses testified at the hearing: Petitioner; and James Morrison, a Senior Consumer Complaint

Supervisor with the Department. In addition to the testimony of these two witnesses, five exhibits (Petitioner's Exhibits 1 through 3 and Respondent's Exhibits 1 and 2) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on February 22, 1996, the Hearing Officer, on the record, advised the parties of their right to file post-hearing submittals and established a deadline, March 13, 1996, for the filing of these post-hearing submittals. On March 13, 1996, the Department filed a proposed recommended order. The Department's proposed recommended order has been carefully considered by the Hearing Officer. The "proposed findings of fact" set forth in the Department's proposed recommended order are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. On February 12, 1993, Petitioner took delivery of a new 1/ 1993 Chevrolet C-1500 truck that he had purchased from Maroone Chevrolet, a Florida Chevrolet dealership.

   
   

2. Thereafter, various problems developed with the vehicle. Petitioner reported these problems to Steve Moore Chevrolet, the Chevrolet dealership to which he brought the vehicle to be serviced (hereinafter referred to as the "Servicing Dealership"). The Servicing Dealership, however, was unable to remedy these problems within 18 months of the date of delivery (hereinafter referred to as the "18-month post-delivery period").

   
   

3. During the 18-month post-delivery period, Petitioner drove the vehicle more than 24,000 miles.

   
   

4. By June 14, 1994 (approximately 16 months after the date of delivery), he had already driven the vehicle 26,569 miles. 2/

   
   

5. At least some of the problems that Petitioner reported during the 18- month post-delivery period still persist today.

   
   

6. In the summer of 1995, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer of the vehicle, the Chevrolet Motor Division of General Motors (hereinafter referred to as "Chevrolet"), requesting that it "make a final attempt to correct the . . . reported . . defects." The notice was received by Chevrolet's customer assistance branch office in Tampa on August 16, 1995.

   
   

7. Chevrolet, through its employee, Jennifer Kenyon, responded to the notice by sending the following letter, dated August 18, 1995, to Petitioner:

   
   

   This is to acknowledge receipt on August 18, 1995 by the Chevrolet Motor Division of your demand letter dated July 28, 1995.

   
   

   Please be advised that Chevrolet Motor Division stands ready to make any necessary adjustments, repairs, or replacements to

   any component contained on or in the motor vehicle now belonging to you bearing Vehicle Identification Number . . . which does not conform to the purpose for which they were intended or manufactured and which fall within the limitation set forth in the New Vehicle Limited Warranty supplied with said vehicle by General Motors, Chevrolet Motor Division. Should Chevrolet Motor Division's attempts to adjust, repair, or replace said component(s) to your satisfaction fail, you would be offered the arbitration process as a means of settling your dispute with General Motors, Chevrolet Motor Division.

   
   

   Please contact Steve Moore Chevrolet so they may assist in making arrangements for an inspection and/or repair.

   
   

8. Petitioner telephoned Kenyon after receiving Kenyon's letter. During their telephone conversation, Kenyon told Petitioner that Chevrolet would probably "buy the vehicle back" from him, but that no final decision would be made until it was determined whether he "qualified for the Lemon Law."

   
   

9. During a subsequent telephone conversation, Kenyon told Petitioner that a determination had been made that Petitioner did not "qualify for the Lemon Law" and that, although Chevrolet would not repurchase his vehicle, it would "work with him."

   
   

10. Petitioner subsequently telephoned the Florida Attorney General's Office (hereinafter referred to the "AGO"). The AGO referred Petitioner to the Department.

    
    

11. When Petitioner contacted the Department, he was advised to file a complaint/arbitration request with the Better Business Bureau's Auto Line program (hereinafter referred to as the "BBB program"), a certified arbitration program in which Chevrolet participates.

    
    

12. Petitioner followed the advice he was given. On or about September 22, 1995, he filed a complaint/arbitration request with the BBB program.

    
    

13. On September 27, 1995, the BBB program sent Petitioner a letter which read as follows:

    
    

    After careful review of your case, we have determined that your complaint is not eligible

    for further handling in the BBB AUTO LINE program. We have made this determination for the following reasons:

    
    

    The claim was not filed with the BBB within

    6 months after the end of the Lemon Law Rights Period in order to pursue arbitration requesting assistance in replacement or repurchase of the vehicle.

    While we refer all cases to the manufacturer for review, we cannot require the manufacturer to submit to arbitration unless the claim is within the specific program limits. The program eligibility information is explained in the program summary.

    
    

    You may want to contact the Division of Consumer Services at 1-800-321-5366 to see if you qualify under the lemon law.

    
    

    While I am sorry we were not able to help you with your automotive complaint, I want to thank

    you for your interest in the BBB AUTO LINE program. Please contact us if you have any questions or if you believe we have made an error.

    
    

14. On November 2, 1995, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

    
    

15. By letter dated November 3, 1995, the Department advised Petitioner that "a determination ha[d] been made to reject [his request because t]he request was not submitted in a timely manner."

    
    

    CONCLUSIONS OF LAW

    
    

16. Chapter 681, Florida Statutes, is the Motor Vehicle Warranty Enforcement Act (hereinafter referred to as the "Act"). Section 681.10, Fla. Stat.

    
    

17. The Act provides "statutory procedures whereby a consumer [of a new motor vehicle] may receive a replacement motor vehicle, or a full refund, for a motor vehicle which cannot be brought into conformity with the [manufacturer's] warranty." Section 681.101, Fla. Stat.

    
    

18. Among other things, the Act gives the consumer the right to request arbitration of his or her unresolved claim before the Florida New Motor Vehicle Board (hereinafter referred to as the "Board"). Sections 681.109 and 681.1095, Fla. Stat. If a manufacturer has a procedure (hereinafter referred to as a "certified procedure"), which the Department has certified as substantially complying with federal law and the provisions of the Act and the rules adopted thereunder, and if the manufacturer has informed the consumer of how and where to file a claim under the certified procedure, the consumer may request arbitration before the Board "only if the consumer has first resorted to such [certified] procedure." Section 681.108(1), Fla. Stat.

    
    

19. Under the Act, the Department is responsible for "screen[ing] all requests for arbitration before the [B]oard to determine eligibility" and "forward[ing] to the [B]oard all disputes that [it] determines are potentially entitled to relief." Section 681.109(5), Fla. Stat.

    
    

20. Section 681.109, Florida Statutes, prescribes the time requirements for seeking relief under the Act. It provides, in pertinent part, as follows:

    
    

    1. If a consumer files a claim with a certified procedure within 6 months after

       the expiration of the Lemon Law rights period

       and a decision is not rendered within 40 days, the consumer may apply to the [Department] to have the dispute removed to the [B]oard for arbitration.

    2. A consumer who files a claim with a certified procedure within 6 months after the expiration of the Lemon Law rights period and is not satisfied with the decision or the manufacturer's compliance therewith may apply to the [Department] to have the dispute sub- mitted to the [B]oard for arbitration. A manufacturer may not seek review of a decision made under its procedure.

    3. If a manufacturer has no certified procedure or if a certified procedure does not have jurisdiction to resolve the dispute,

       a consumer may apply directly to the [Department] to have the dispute submitted to the [B]oard for arbitration.

    4. A consumer must request arbitration before the [B]oard within 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified procedure, whichever date occurs later.

       
       

21. The "Lemon Law rights period," as that term is used in Section 681.109, Florida Statutes, is "the period ending 18 months after the date of the original delivery of a motor vehicle to a consumer [referred to herein as the "18-month post-delivery period"], or the first 24,000 miles of operation, whichever occurs first." Section 681.102(9), Fla. Stat.

    
    

22. The "Lemon Law rights period" will be extended an additional six months "if a nonconformity has been reported, but has not been cured by the manufacturer, or its authorized service agent, by the [end of the original period]." Section 681.104(3)(b), Fla. Stat.

    
    

23. In the instant case, Petitioner drove more than 24,000 miles in the

    18-month post-delivery period. The original "Lemon Law rights period" therefore ended on the date that he drove his 24,000th mile, which was some time before June 14, 1994.

    
    

24. Because the defects that Petitioner had reported to the Servicing Dealership had not been completely repaired within the original "Lemon Law rights period," the period was extended an additional six months (to some time before December 14, 1994) by operation of Section 681.104(3)(b), Florida Statutes.

    
    

25. Chevrolet, the manufacturer of Petitioner's vehicle, has a certified procedure that Petitioner, had he acted in a timely manner, could have used to seek the relief he is now seeking in his request for arbitration before the Board.

    
    

26. Under the Act, in order to bring before the Board a dispute involving an allegedly defective new vehicle made by a manufacturer, like Chevrolet, with a certified procedure, the consumer must first file, within six months after the expiration of the extended "Lemon Law rights period" (hereinafter referred to as the "six-month filing period"), a claim in accordance with the manufacturer's

    certified procedure, unless the manufacturer has not informed the consumer of how and where to file such a claim, in which case the consumer may file a request for Board arbitration of the dispute directly with the Department without first pursuing relief under the certified procedure, provided the consumer files the request within the six-month filing period. If, within the six-month filing period, the consumer has filed neither a claim in accordance with the manufacturer's certified procedure, nor a request for arbitration before the Board, regardless of the information the consumer had been provided by the manufacturer about the certified procedure and regardless of the other circumstances surrounding the consumer's failure to act in a timely manner, the Department will consider the consumer's dispute to be ineligible for arbitration before the Board. See Palaez v. Department of Agriculture and Consumer Services, DOAH Case No. 94-5484 (DACS May 24, 1995)(Final Order)(the time requirements set forth in the Act for requesting arbitration are jurisdictional and are not subject to equitable considerations such as tolling). 3/

    
    

27. In the instant case, within the six-month filing period, Petitioner neither filed a claim under Chevrolet's certified procedure, nor filed with the Department a request for arbitration before the Board. It was not until on or about September 22, 1995, more than six months after the end of the extended "Lemon Law rights period," that Petitioner first filed a claim under Chevrolet's certified procedure and it was not until even later, on November 2, 1995, that he first filed with the Department a request for arbitration before the Board.

    
    

28. Accordingly, the Department should deny, as time-barred, Petitioner's request that his dispute with Chevrolet be submitted to the Board for arbitration. 4/

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order denying Petitioner's request for arbitration because it is time-barred.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1996.

STUART M. LERNER, 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 22nd day of March, 1996.

ENDNOTES

1/ According to the vehicle's odometer reading, the vehicle had been driven 15 miles at the time of delivery.

2/ It is unclear exactly when Petitioner reached his 24,000th mile of operation. The record merely reveals that it occurred some time before June 14, 1994.

3/ The Department noted, however, in its final order that "[t]he consumer always has the right to sustain a private right of action against the dealer for damages."

4/ Even if the six-month filing period, like the twenty-day time limitation for appealing an agency determination of abandonment of position that was analyzed by the Florida Supreme Court in Machules v. Department of Administration, 523 So.2d 1132 (Fla. 1988), was "not jurisdictional in the sense that failure to comply is an absolute bar to [Board consideration of the matter] but [wa]s more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling," the outcome of the instant case would be the same inasmuch as there has been no showing that the circumstances surrounding Petitioner's failure to have acted within the six-month filing period would warrant the application of the equitable tolling doctrine.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order:

1. Rejected as a finding fact because it is more in the nature of a statement of the law.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact. See T.S. v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)(hearing officer's factual findings which "merely summarize[d] the testimony of witnesses" were "insufficient").

3. First sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order; Second sentence: Rejected because it lacks sufficient evidentiary/record support.

4. Accepted and incorporated in substance.

5. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

6. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

7. Rejected as a finding fact because it is more in the nature of a conclusion of law.

8. First sentence: Rejected as a finding fact because it is more in the nature of a conclusion of law; Second sentence: Rejected as a finding fact because it is more in the nature of a statement of the law.

9. To the extent that this proposed finding states that the date of delivery of Petitioner's vehicle was February 12, 1993, it has been accepted and incorporated in substance. Otherwise, it has been rejected as a finding fact because it is more in the nature of a conclusion of law.

10. To the extent that this proposed finding states that "Petitioner did not request arbitration before the Board until November 2, 1995," it has been accepted and incorporated in substance. Otherwise, it has been rejected as a finding fact because it is more in the nature of a conclusion of law.

11. Rejected as a finding fact because it is more in the nature of a conclusion of law.

12. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding fact because it is more in the nature of a conclusion of law.

13. Accepted and incorporated in substance.

14. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

15. First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

16. To the extent that this proposed finding states that "Petitioner did not file with the BBB prior to December 14, 1994," it has been accepted and incorporated in substance. Otherwise, it has been rejected as a finding fact because it is more in the nature of a conclusion of law.

17-18. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.

COPIES FURNISHED:

Barton T. Cohen

7329 Catalina Isle Drive Lake Worth, Florida 33467

Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Honorable Bob Crawford, Commissioner Department of Agriculture

and Consumer Services 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 10 days in which to submit written exceptions. Some agencies allow a larger period of time 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: 96-000036

Orders for Case No: 96-000036