STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIELLE MANFREDO, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0192

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on March 26, 1996, by video teleconference in Miami, Florida.

APPEARANCES

For Petitioner: Danielle Manfredo, Pro Se

1412 Southwest 129th Court Miami, Florida 33184

For Respondent: Rhonda Long Bass, Esquire

Florida Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUES

Whether Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board should be granted.

PRELIMINARY STATEMENT

By letter dated November 8, 1995, the Respondent, Department of Agriculture and Consumer Services (Department) denied Petitioner, Danielle Manfredo's (Manfredo), request for arbitration before the Florida New Motor Vehicle Arbitration Board concerning her problems with a 1992 Mitsubishi Eclipse purchased from Leheman Mitsubishi in November, 1992. Manfredo requested an administrative hearing concerning the denial of her request for arbitration.

The case was forwarded to the Division of Administrative hearings on January 3, 1996, for assignment to a hearing officer.

At the final hearing, Petitioner testified in her own behalf and called Itmar Sergen as a witness. Petitioner's Exhibits 1-6 were admitted in evidence. At the final hearing Respondent called Rudy Hamrick as its witness.

Respondent's Exhibit 1 was admitted in evidence.

A transcript was not ordered. The parties agreed to file proposed recommended orders on or before April 5, 1996. The Respondent filed a proposed recommended order on April 5, 1996. Petitioner did not file a proposed recommended order. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Danielle Manfredo (Manfredo), purchased a 1992 Mitsubishi Eclipse from Leheman Mitsubishi in Miami, Florida, on November 5, 1992, and took possession of the vehicle on the same date.

   
   

2. When Manfredo purchased the automobile she was given an owner's manual for a 1993 Mitsubishi Eclipse. She did not receive a brochure concerning the Florida Lemon Law nor was she provided any information by the car dealer concerning her rights under the Florida Lemon Law.

   
   

3. In January, 1993, Manfredo began experiencing problems with the vehicle and continued experiencing problems into 1995. The two primary problems dealt with the transmission and the car pulling to the right. Manfredo continued to take the car in for repairs.

   
   

4. In August, 1995, Manfredo obtained a Lemon Law form from her future mother-in-law. On August 25, 1995, Manfredo sent a Motor Vehicle Notification to the manufacturer and to the Attorney General.

   
   

5. Respondent, Department of Agriculture and Consumer Affairs, Division of Consumer Affairs (Department) is the state agency charged with the responsibility to receive and evaluate Requests for Arbitration before the Florida New Motor Vehicle Arbitration Board for referral to the Attorney General for further processing and action.

   
   

6. On September 27, 1995, Manfredo called the Department to get an application for arbitration. On October 17, 1995, she filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

   
   

7. By letter dated November 8, 1995, the Department denied Manfredo's request for arbitration, stating that the request was not timely.

   
   

8. The latest possible date Manfredo could have filed a request for arbitration was May 5, 1995. Manfredo's request for arbitration was not timely filed.

   
   

9. The Vehicle Defect Notification and the Request for Arbitration are not the same document and do not serve the same purpose.

   
   

10. Mitsubishi does not have a state-certified manufacturer procedure.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

12. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issues unless the burden is otherwise specifically established. Young v. State Department of Community Affairs, 567

    So.2d 2 (Fla. 3rd DCA 1990); Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 2nd DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this case Manfredo must establish by a preponderance of the evidence that she timely filed her request for arbitration.

    
    

13. Chapter 681, Florida Statutes, is the Motor Vehicle Warranty Enforcement Act. Pursuant to Section 681.109(5), Florida Statutes, the Department is charged with the responsibility of screening all requests for arbitration before the board to determine eligibility. Further, pursuant to Section 681.109(6), Florida Statutes, the Department "may reject a dispute that it determines to be . . . outside the scope of the board's authority."

    
    

14. Section 681.104, Florida Statutes, provides the procedures that consumers must follow to report nonconformities to automobile manufacturers. Subparagraph (3)(a) requires that at least three attempts to conform a motor vehicle to the warranty period must occur during the Lemon Law rights period. The Lemon Law rights period is defined in Section 681.102(9), Florida Statutes, as:

    
    

    [T]he 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.

    
    

    Based on Section 681.104, Manfredo's Lemon Law period would have ended on May 5, 1994. Section 681.04(3)(b), Florida Statutes, extends the Lemon Law period for an additional six months if a nonconformity has been reported but has not been cured by the manufacturer by the expiration of the Lemon Law rights period.

    Thus, Manfredo's Lemon Law rights period could have been extended to November 5, 1994.

    
    

15. Section 681.109(4), Florida Statutes, provides:

    
    

    A consumer must request arbitration before the board 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 occurs later.

    
    

    Since Mitsubishi does not have a certified procedure, the last date by which Manfredo could have timely filed a request for arbitration was May 5, 1995.

    
    

16. Manfredo filed her request for arbitration on October 17, 1995. Thus, her request was not timely filed, and the Department correctly denied the request for arbitration.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Danielle Manfredo's

request for arbitration.

DONE AND ENTERED this 11th day of April, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 11th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-192

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

No proposed recommended order was filed.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-12: Accepted in substance.

COPIES FURNISHED:

Danielle Manfredo

1412 Southwest 129th Court Miami, Florida 33184

Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services The Capitol, PL-10

Tallahassee, Florida 32399-0810

Honorable Bob Crawford Commissioner of Agriculture 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 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.

Docket for Case No: 96-000192

Orders for Case No: 96-000192