STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL D. MAXWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1322

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in televised conference facilities in Tampa and Tallahassee, Florida on May 22, 1996, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul D. Maxwell, pro se

775 Lantana Avenue

Clearwater Beach, Florida 34630

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue for consideration in this matter is whether Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board should be denied as untimely.

PRELIMINARY STATEMENT

By letter dated January 16, 1996, Rudy Hamrick, Senior Consumer Complaint Analyst for the Department of Agriculture and Consumer Services' (Department) Division of Consumer Services (Division), advised Petitioner, Paul D. Maxwell, that his request for arbitration, received by the Division on January 10, 1996, had been reviewed and was rejected as untimely. Thereafter, by letter dated February 6, 1996, Mr. Maxwell requested a formal hearing and this hearing ensued.

At the hearing, Petitioner testified in his own behalf. With the concurrence of counsel for the Department, and with the permission of the Hearing Officer, Petitioner also submitted several documents with his post- hearing submittal which have been marked and received into evidence as

Petitioner's Exhibits 1 through 3. The Department presented the testimony of Oliver R. Hamrick, III, the Department's Senior Consumer Complaint Analyst who communicated the Division's denial of Petitioner's request for arbitration to him in January 1996, and introduced Respondent's Exhibit A.

No transcript of proceedings was furnished. Subsequent to the hearing, counsel for the Department submitted Proposed Findings of Fact which have accepted and are incorporated in this Recommended Order. Petitioner did not submit Proposed Findings of Fact, but submitted a letter outlining his position, a copy of which was furnished counsel for the Department, and which was carefully considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive and evaluate requests for arbitration before the Florida New Motor Vehicle Arbitration Board (Board), submitted by purchasers of new motor vehicles in this state. If a request qualifies for arbitration and is timely filed, the matter is referred to the Florida Attorney General for further processing and action.

   
   

2. On September 10, 1993, Petitioner took delivery of a new Ford Escort automobile from Ken Marks Ford in Clearwater, Florida. The mileage reflected on the odometer at the time of delivery was 26 miles. Petitioner claims that at the time he took delivery of the vehicle, he was not furnished with a copy of the Attorney General's brochure entitled Preserving Your Rights Under the Florida Lemon Law, nor was he given any other information, either in person or in writing, from the dealer or from anyone else, regarding the operation of the Lemon Law program. However, at hearing he indicated that he had a copy of the pamphlet as early as October 13, 1995, when he signed the Defect Notification form which is included within the pamphlet. The pamphlet clearly outlines the benefits, requirements and time limits pertinent to the program.

   
   

3. From the very beginning of his ownership, Petitioner experienced difficulty with the vehicle. His first problem, requiring the replacement of the right head lamp assembly, took place on September 13, 1993, only three days after delivery and continued until December, 1995. He experienced problems with several systems at least three times each. These included squealing brakes, the right seat belt, the alarm light, the tachometer, the gas pedal and the idle.

   By the time he took the vehicle in for the third time for the most recent problem, the odometer registered 30,710 miles. He claims to have notified the manufacturer in writing of this problem on October 18, 1995.

   
   

4. Mr. Maxwell accumulated 24,000 miles on his vehicle on or before January 4, 1995. It was on that date, when he brought the vehicle to the dealer for the third time for the squeaking brakes, the alarm light and the seat belt problems, that the odometer showed 24,035 miles. Even though the initial Lemon law period expired at 24,000 miles, Petitioner was potentially eligible for a six month extension of the original rights period because several complaints registered with the dealer during the initial period remained uncorrected at that time. The six months extension expired on or before July 4, 1995.

   
   

5. Under the Florida Lemon Law, consumers are entitled to file for relief under the statute for a period of up to six months after the expiration of the Lemon Law rights period. In this case, because of the six month extension, the filing deadline of six months expired no later than January 4, 1996.

6. In October 1995, Petitioner contacted Ford's Customer Assistance Center and requested information regarding correction of his problems. In response he received a customer satisfaction questionnaire but no assistance with his difficulties. Thereafter, he contacted the Department to request the form for filing the Request for Arbitration on November 11, 1995. Subsequent to the receipt of the Request for Arbitration from the Division, Mr. Maxwell engaged in several telephone negotiations with representatives of Ford Motor Company and received oral settlement offers from the company, including either a replacement automobile or a total refund. When Mr. Maxwell elected to receive a refund, he was told that the Ford representative would get back to him but no one from either Ford Motor Company or Ken Marks Ford ever did. Petitioner believes he was misled by both so that he would thereafter become ineligible for participation in the arbitration program. Ford Motor Company has no state- certified settlement procedure.

   
   

7. Petitioner's Request for Arbitration reflects January 6, 1996 as the date of execution. It was received in the Division of Consumer Services on January 10, 1996. It was subsequently reviewed and rejected as untimely by the Division on January 16, 1996.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

9. Under the provisions of Section 681.109(5), Florida Statutes, the Department has the responsibility to screen all requests for arbitration before the Florida New Motor Vehicle Arbitration Board to determine eligibility for consideration by the Board. Section 681.109(6) provides that the Department:

   
   

   ... may reject a dispute that it determines to be fraudulent or outside the scope of the board's authority.

   
   

10. Section 681.109(4) requires purchasers of allegedly defective motor vehicles to request arbitration within six months after the expiration of the Lemon Law rights period, or within thirty days after the final action of a certified procedure, whichever occurs later.

11. The Lemon Law rights period, as defined in Section 681.109(9) 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.

    
    

12. Section 681.104, Florida Statutes, outlines the procedure which consumers must follow to report problems to the automobile manufacturers. To pass the initial qualification threshold, a consumer must make at least three attempts to get the same defect corrected under the warranty during the Lemon Law rights period. If the non-conformity has not been corrected during the Lemon Law rights period, the statute extends the eligibility period for an additional six months.

13. In the instant case, the 24,000 mile point was reached on or before January 4, 1995 as evidenced by the odometer reading on that date when the vehicle was brought in for service. Ordinarily, had the defect been corrected, the six month filing deadline would have expired on July 4, 1995. However, since the defect was not corrected, a six month extension came into play which meant that the request for arbitration must be filed within six months from the 24,000 month date plus six months. That moved the filing deadline to six months from July 4, 1995, or January 4, 1996. Petitioner's request was not dated until January 6, 1996, two days after the deadline, and was not filed with the Division until January 10, 1996, six days after the deadline. It was, therefore, untimely.

    
    

14. Mr. Maxwell knew, or should have known, that his request for arbitration was due by a time certain. It was his responsibility to insure that it was filed in a timely manner. Any delaying tactics utilized by Ford Motor Company do not serve to excuse his failure to file his request with the Division on time. This position has been taken by the courts in this state. See Mercedes Benz of North America, Inc. v. Kling, 549 So.2d 792 (Fla. 5DCA 1989). Since the request was not filed in a timely manner, the Division does not have the authority to forward it to the Department of Legal Affairs for further processing before the Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner's Request for Arbitration as untimely.

DONE and ENTERED this 7th day of June, 1996, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 7th day of June, 1996.

COPIES FURNISHED:

Paul D. Maxwell 775 Lantana Avenue

Clearwater Beach, Florida 34630

Rhonda Long Bass, Esquire Department of Agriculture and

Consumer Services

515 Mayo Building

Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture 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 the 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 consult with the agency that will issue the Final Order in this case concerning their 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: 96-001322

Orders for Case No: 96-001322