STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. R. and T. J. REAGAN, )

   )

   Petitioners, )

   )

   vs. ) Case No. 97-3783

   ) DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference on October 20, 1997. Petitioners and the court reporter attended in Fort Myers, Florida. The administrative law judge, Respondent’s counsel, and Respondent’s witness attended in Tallahassee.

   APPEARANCES

   
   

   For Petitioners: H. R. and T. J. Reagan, pro se

   5601 Duncan Road, Suite 96

   Punta Gorda, Florida 33982-4754

   
   

   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 Petitioners’ request for arbitration under the Florida Lemon Law was timely.

   PRELIMINARY STATEMENT

   
   

   By letter dated May 30, 1997, Respondent advised Petitioners that it was denying their request for arbitration. Petitioners timely requested a formal hearing.

   At the hearing, the parties stipulated that Petitioners took possession of the subject motor vehicle on September 16, 1997. Petitioners called one witness and offered into evidence one exhibit. Respondent called one witness and offered into evidence one exhibit. Both exhibits were admitted.

   FINDINGS OF FACT

   
   

   1. Petitioners took delivery in Florida of a 1995 Saturn automobile on September 16, 1994.

   2. Thirteen months after taking delivery, Petitioners returned the car to a Saturn dealer for repairs to the cruise control. At this time, the car had less than 9000 miles on it. About 12 months later, Petitioners returned the car to the dealer twice more in the same week with problems with the cruise control. The mileage at the time of the third repair attempt was 17,298.

   3. By letter dated March 13, 1997, and received four days later, Petitioners notified the manufacturer of the problems with the cruise control. Petitioners then filed a claim with the manufacturer’s informal dispute settlement program on April 28, 1997. The program operator, BBB

      Autoline, issued a decision on May 9, 1997, denying the claim because it was untimely filed.

   4. Petitioners filed their request for arbitration under the Florida Lemon Law on May 21, 1997. Respondent has determined that the request is untimely, and this hearing addresses that determination.

      CONCLUSIONS OF LAW

      
      

   5. 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.)

   6. Section 681.109(4) requires consumers to request arbitration within six months after the expiration of the “Lemon Law rights period” or 30 days after the final action of a certified procedure, whichever occurs later. Section 681.102(9) defines the “Lemon Law rights period” as 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.” If the manufacturer has established a certified procedure for resolving consumer complaints, the consumer must file a claim within six months of the expiration of the Lemon Law rights period.

   7. Petitioners took delivery of their Saturn on September 16, 1994. The Lemon Law rights period ended March

      16, 1996, assuming that Petitioners’ Saturn had not yet been driven 24,000 miles. Petitioners then had six months, until September 16, 1996, within which to request arbitration or, if Saturn maintained a certified procedure, to file a claim under this alternative dispute-resolution program. Section 681.104(3) effectively adds six months to these deadlines for persistent problems. At most, then, Petitioners’ final deadline to request arbitration or file a claim under a certified procedure was March 16, 1997.

   8. Petitioners did not file a claim under Saturn’s certified procedure until April 28, 1997. Petitioners did not file their request for arbitration until May 21, 1997. Both of these filings were untimely, and the statutory deadlines are jurisdictional.

RECOMMENDATION

It is

RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying Petitioners’ request for arbitration.

DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida.

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 17th day of December, 1997.

COPIES FURNISHED:

H. R. and T. J. Reagan, pro se 5601 Duncan Road, No. 96

Punta Gorda, Florida 33982-4754

Attorney Rhonda Long Bass Department of Agriculture and Consumer Services

Room 515 Mayo Building Tallahassee, Florida 32399-0800

Richard Tritschler, General Counsel Office of the General Counsel Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800

Bob Crawford, Commissioner Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0800

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: 97-003783

Orders for Case No: 97-003783