STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. BERTRAM, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4339

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the hearing in this case by videoconference in Tallahassee, Florida, on December 18, 1996.

Respondent, its witness, and the court reporter appeared in Tallahassee. Petitioner appeared in Ft. Myers.

APPEARANCES

For Petitioner: Robert L. Bertram

Post Office Box 25 Jamestown, Kentucky 42629

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 before the Florida New Motor Vehicle Arbitration Board under Chapter 681, Florida Statutes.

PRELIMINARY STATEMENT

By letter dated July 16, 1996, Petitioner protested the determination that he was ineligible for arbitration before the Florida New Motor Vehicle Arbitration Board under Chapter 681, Florida Statutes.

At the hearing, Petitioner called one witness and offered into evidence six exhibits. Respondent called one witness and offered into evidence five exhibits. All exhibits were admitted.

The parties did not order a transcript. The parties filed the exhibits by December 27, 1996.

FINDINGS OF FACT

1. On November 30, 1993, Petitioner took delivery of a new, 1994 Mercedes Benz SL600, bearing vehicle identification number WDBFA76EORF093081. The selling dealer was Regency Autohaus, Inc. in Naples, Florida, which is where delivery to Petitioner took place.

2. Petitioner experienced numerous mechanical problems with the vehicle starting shortly after taking delivery. Problems during the first year of ownership included air conditioning that would not work and a transmission problem that would not permit use of gears other than third.

3. On February 22, 1995, Petitioner sent to Mercedes Benz a Motor Vehicle Defect Notification. Petitioner continued to experience problems with the car and, on May 9, 1996, sent Mercedes Benz a second Motor Vehicle Defect Notification.

4. Despite repeated attempts by Mercedes Benz to repair largely recurring problems with the car, Petitioner was unable to obtain satisfactory repairs. Twice, the Mercedes Benz dealer in Louisville, Kentucky, where Petitioner lives part of the year, towed the car to the shop to repair a failure of the car to start. Keeping the car 11 days the first time and six days the second time, the Louisville dealer could not determine the source of the problem. Later, in September 1996, the Louisville dealer kept the car for 13 days trying to fix several problems. At this time, the car had 23,692 miles on it.

5. The issue in this case is whether Petitioner made a timely demand for arbitration under the Florida New Motor Vehicle Arbitration Board, Chapter 681, Florida Statutes.

6. The Motor Vehicle Defect Notifications that Petitioner sent to Mercedes Benz are not demands for arbitration. The forms state that, under the Florida Lemon Law, the purchaser is “requesting that [the manufacturer] make a final attempt to correct the continuing substantial defect(s) or condition(s).”

7. In the spring of 1996, Petitioner spoke with several representatives of Mercedes Benz and Respondent about arbitration and procedures under the Florida Lemon Law.

8. By letter to a national Mercedes Benz representative dated April 24, 1996, Petitioner complained about the car and the discourteous treatment he had received from another Mercedes Benz employee. The letter explains why Petitioner does “not want to

   keep this vehicle” and warns that, if Petitioner did not hear from someone at Mercedes Benz within five days, he would “have no alternative but take further action.”

9. By letter dated May 9, 1996, Petitioner sent the Office of the Attorney General a letter with a copy of the second Motor Vehicle Defect Notification. The letter notes that the car was in the shop for repairs for more than 15 days prior to the expiration of 18 months and thus appears to be covered by the Florida Lemon Law. The letter concludes: “I have requested that the purchase price be refunded or that the vehicle be repaired.”

10. By letter dated May 23, 1996, Petitioner informed a Mercedes Benz representative in St. Petersburg, Florida, that Petitioner had researched his rights under the Florida Lemon Law. Petitioner stated that Mercedes Benz had to replace the vehicle or refund the purchase price. Petitioner added, “If your company fails to do this, then the only alternative would be to arbitrate the matter . . ..” The letter concludes: “It would seem to me that your company should be willing to go ahead and do this rather than go through the arbitration and be ordered to do something that you could voluntarily do. Please advise your thoughts on the matter.”

11. On July 5, 1996, Petitioner filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. Immediately above Petitioner’s signature, which is dated June 28, 1996, the form warns that persons making false statements with

    the intent to mislead a public servant in the performance of his official duty are guilty of misdemeanor violations of cited Florida Statutes. The form adds:

    I hereby request arbitration of my case with the Florida New Motor Vehicle Board. I certify that all statements made in connection with this request are true and correct to the best of my knowledge. I understand that this document and its attachments are public records.

    
    

12. The letters of April 29 and May 9 and 23 are not demands for arbitration. They are demands for the remedies that are available under the Florida Lemon Law, but they are not demands for arbitration. Nowhere in these three letters does Petitioner, who is an attorney, make a definitive demand of Mercedes Benz or Respondent for arbitration. The letters mention Mercedes Benz’s liability under the Florida Lemon Law and the remedies available under the law. The letters implicitly warn of arbitration, but continue to reflect Petitioner’s strategy during this period to try to work out this matter without the necessity of legal proceedings.

13. Mercedes Benz does not maintain a certified procedure for the resolution of disputes of the type involved in this case.

    CONCLUSIONS OF LAW

    
    

14. 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.)

15. Section 681.109(4) 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 date occurs later.”

16. A certified procedure is described in Section 681.108. Most significant to this case is the requirement that the certified procedure is a dispute-resolution process that the manufacturer has established and submitted to Respondent for certification. Mercedes Benz has not established a certified procedure.

17. Section 681.102(9) states that the Lemon Law rights period ends “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.”

18. Section 681.104(3)(b) extends the term of the Lemon Law rights period by six months if the manufacturer has failed to repair a reported problem within the original Lemon Law rights period.

19. In this case, the original Lemon Law rights period expired May 30, 1995. Petitioner is entitled to a six-month extension, which means that the extended Lemon Law rights period expired November 30, 1995. With the six months provided by Section 681.109(4), Petitioner had until May 30, 1996, within which to request arbitration.

20. Petitioner failed to request arbitration timely under the law. No facts suggest that this failure is attributable to acts or omissions of Mercedes Benz or Respondent. Thus, Petitioner’s claim is ineligible for arbitration.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying Petitioner’s request for arbitration before the Florida New Motor Vehicle Arbitration Board under Chapter 681, Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of January, 1997.

ROBERT E. MEALE

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 29th day of January, 1997.

COPIES FURNISHED:

Robert L. Bertram Post Office Box 25

Jamestown, Kentucky 42629-0025

Attorney Rhonda Long Bass Department of Agriculture and

Consumer Services

Room 515, Mayo Building 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 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004339

Orders for Case No: 96-004339