STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

PEDRO CASAL, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3875

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was conducted in this case by video teleconference (at sites in Miami and Tallahassee, Florida) on November 18, 1996, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Pedro Casal, pro se

7535 Southwest 39th Street Miami, Florida 33155

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 June 26, 1996, 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 August 19, 1996, the matter was referred to the Division of Administrative Hearings (hereinafter referred to as the "Division") to conduct the formal hearing Petitioner had requested.

As noted above, the hearing was held on November 18, 1996. Two witnesses testified at the hearing: Petitioner; and Robert Carruthers, a Senior Consumer Complaint Analyst with the Department. In addition to the testimony of these two witnesses, one exhibit (Respondent's Composite Exhibit A) was offered and received into evidence.

At the close of the evidentiary portion of the hearing on November 18, 1996, the undersigned Administrative Law judge, on the record, advised the parties of their right to file post-hearing submittals and established a deadline, December 2, 1996, for the filing of these post-hearing submittals. On December 2 1996, the Department filed a proposed recommended order, which the undersigned has carefully considered. 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 June 16, 1993, Petitioner took delivery of a new 1/ 1994 Mitsubishi Galant ES that he had leased (for a 42-month period) from Potamkin Mitsubishi (hereinafter referred to as "Potamkin"), a Florida Mitsubishi Motors of America (hereinafter referred to as "Mitsubishi") dealership.

   
   

2. Thereafter, problems developed with the vehicle's braking system, which caused the steering wheel to vibrate.

   
   

3. Petitioner, who, under his lease agreement, was responsible for having the necessary repairs made to the vehicle, reported these problems to Potamkin.

   
   

4. Potamkin was unable to completely remedy these problems within 18 months of the date of delivery (hereinafter referred to as the "18-month post- delivery period").

   
   

5. During the "18-month post-delivery period," Petitioner drove the vehicle less than 24,000 miles.

   
   

6. The problems that Petitioner reported during the "18-month post- delivery" period still persist today.

   
   

7. On or about January 24, 1995, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer of the vehicle, Mitsubishi, requesting that it "make a final attempt to correct the continued substantial defects" plaguing the vehicle.

   
   

8. The defects were not remedied.

   
   

9. On June 21, 1996, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.

   
   

10. By letter dated June 26, 1996, the Department advised Petitioner that "a determination ha[d] been made in accordance with Chapter 681.109(6) Florida Statutes, and Rule 2-32.009(2)(b), Florida Administrative Code, to reject [his request because t]he request was not submitted in a timely manner."

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The Act provides "statutory procedures whereby a consumer [of a new motor vehicle] 2/ 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.

    
    

13. 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.

    
    

14. 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.

    
    

15. 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 submitted 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 [Depart- ment] 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.

16. 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.

    
    

17. 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.

    
    

18. In the instant case, Petitioner drove less than 24,000 miles in the "18-month post-delivery period." The original "Lemon Law rights period" therefore ended on December 16, 1993.

    
    

19. Because the defects that Petitioner had reported to the dealership had not been completely repaired within the original "Lemon Law rights period," the period was extended an additional six months (to June 16, 1994) by operation of Section 681.104(3)(b), Florida Statutes.

    
    

20. Mitsubishi, the manufacturer of Petitioner's vehicle, does not have a certified procedure that Petitioner could have used to seek the relief he is now seeking in his request for arbitration before the Board.

    
    

21. Under the Act, in order to bring before the Board a dispute involving an allegedly defective new vehicle made by a manufacturer, like Mitsubishi, which does not have a certified procedure, the consumer must file (directly with the Department), within six months after the expiration of the extended "Lemon Law rights period" (hereinafter referred to as the "six-month filing period"), a request for Board arbitration of the dispute. If, within the "six-month filing period," the consumer has not filed such a request for arbitration before the Board, the Department will consider the consumer's dispute to be ineligible for arbitration before the Board, regardless of the circumstances surrounding the consumer's failure to act in a timely manner. See Cohen v. Department of Agriculture and Consumer Services, DOAH Case No. 96-0036 (DACS April 23, 1996)(Final Order); 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/

    
    

22. In the instant case, Petitioner did not file with the Department, within the "six-month filing period," a request for arbitration before the Board. It was not until on or about June 21, 1996, more than six months after the end of the extended "Lemon Law rights period," that Petitioner first filed with the Department a request for arbitration before the Board.

    
    

23. Accordingly, the Department should deny, as time-barred, Petitioner's request that his dispute with Mitsubishi 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 5th day of December, 1996.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1996.

ENDNOTES

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

2/ A "consumer," as that term is used in the Act, includes a person "who leases a motor vehicle for 1 year or more pursuant to a written lease agreement which provides that the lessee is responsible for repairs to such motor vehicle." Section 681.102(4) and (10), Fla. Stat.

3/ The Department noted, however, in its final order in Palaez 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.

COPIES FURNISHED:

Pedro Casal

7535 Southwest 39th Street Miami, Florida 33155

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 within 15 days from the date of 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: 96-003875

Orders for Case No: 96-003875