STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARSHALL E. PITTS, III, )

)

Petitioner, )

)

vs. )

) Case No. 97-5973 DEPARTMENT OF AGRICULTURE AND )

CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by video teleconference, on March 23, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Marshall E. Pitts, III, pro se 3831 Soto Road

Groveland, Florida 34736

For Respondent: Rhonda Long Bass, Esquire

Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Petitioner is eligible to participate in arbitration by the Florida New Motor Vehicle Arbitration Board concerning his purchase of a 1995 Saturn automobile.

PRELIMINARY MATTERS

By letter dated November 7, 1997, George Fletcher, Senior

Consumer Complaint Analyst with the Florida Department of

Agriculture and Consumer Services, (Department), advised Petitioner herein that his request for arbitration had been rejected as untimely in accordance with Section 681.109, Florida Statutes. Thereafter, Petitioner requested formal hearing and this hearing ensued.

Petitioner did not appear at the first hearing scheduled in this matter but, because of his allegation of vehicle difficulties making it impossible for him to get to the hearing, a second hearing was scheduled and held by video teleconference.

At the hearing, Petitioner and the court reporter appeared from Orlando. The Judge, counsel for Respondent, and Respondent’s witness were in Tallahassee. Petitioner testified in his own behalf and introduced Petitioner’s Composite

Exhibit 1. Respondent presented the testimony of James D. Morrison, administrator of the Department’s Lemon Law program for motor vehicles, and introduced Respondent’s Composite Exhibit A.

No transcript was provided. Subsequent to the hearing, only counsel for the Respondent submitted matters after the hearing.

The matter was carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, Florida Department of Agriculture and Consumer Services, was the state agency responsible for the administration of matters regarding the implementation of the Lemon Law for

   motor vehicles in this state. Chapter 681, Florida Statutes,

   
   

   deals with motor vehicle sales warranties, and incorporates Florida’s Lemon Law as it is pertinent to this matter.

2. Petitioner, Marshall E. Pitts, III, a resident of Groveland, Florida, purchased a 1995 Saturn SLI automobile on or about March 14, 1995, from Saturn of Orlando. The purchase order/contract for sale bears a date of March 14, 1995. The purchase price of the vehicle was $13,750. Petitioner had a trade-in valued at $8,400, which left a difference of $5,350 to be paid. In his request for arbitration, Petitioner indicated the purchase date as March 16, 1995, and the Department, giving him the benefit of the doubt in calculating the allowable time for filing under the Lemon Law, considered the March 16, 1995, date as the date of purchase/delivery which initiates the running of the time for filing a request for arbitration. The Lemon Law calls for filing for arbitration within 18 months or 24,000 miles of delivery. Therefore, the initial filing deadline was September 16, 1996. The vehicle reached 24,000 miles on the odometer sometime in November 1996.

3. The Lemon Law statute allows an extension of six months for filing if a nonconformity has been reported but not cured by the manufacturer or its representative by the expiration of the Lemon Law period. Petitioner took the vehicle in for repairs to the safety belt three times starting sometime in October 1995.

   Exact dates are not shown. He also took it in for repairs to the transaxle three times, on March 21, 1996, September 19, 1996, and on January 31, 1997. The trouble with the transaxle was not corrected within the Lemon Law rights period. Because of this, a six-month extension for triple reports of difficulty was implemented. This extended the filing deadline to March 16, 1997.

4. Petitioner was afforded an additional six-months extension because of the wording of the statute which grants an individual six months after the expiration of the Lemon Law Rights period to request arbitration. Application of this additional six months extended the filing deadline to

   September 16, 1997.

   
   

5. Petitioner submitted his request for arbitration on October 29, 1997, and it was received in the Department on November 5, 1997. At the time of filing the request, there were 77,000 miles on the vehicle’s odometer.

6. Petitioner claims he did not receive any notification of his rights under the Lemon Law from the dealer at the time he took delivery of the vehicle. He claims it was only when talking with an attorney late in the process that he learned of the existence of the arbitration procedure. A dealer of new cars is required by law to provide the purchaser of a new vehicle with a copy of the Department’s brochure which outlines the Lemon Law program.

7. Petitioner also recites a litany of complaints regarding the vehicle and the treatment he received from both the selling dealer and the manufacturer. Unfortunately, traumatic as these problems must have been to him, they have no relevance to the issues here.

   
   

   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 is charged with the responsibility to screen all requests for arbitration before the Florida Motor Vehicle Arbitration Board to determine eligibility, and, under subsection (6) of the same section, has the authority to reject a dispute it determines does not meet the criteria to go before the Board.

10. Section 681.109(4), Florida Statutes, requires consumers to file their requests for arbitration within six months after the expiration of the Lemon Law rights period or within 30 days after the final action of a certified procedure, whichever is later. In this case, no provision exists for a certified procedure. Therefore, the Petitioner’s request had to have been filed within six months of the expiration of the Lemon Law rights period. In this case, Petitioner was afforded an

    additional six months to file by virtue of the fact he was credited with having timely reported a nonconformity which remained uncorrected by the manufacturer at the expiration of the Lemon Law rights period.

11. In this case, granting Petitioner the most liberal of interpretations of the statute, which afforded him the maximum time allowable to file his request for arbitration, the evidence of record nevertheless reflects that his request was not timely filed. Under the terms of the statute, the Department was obliged to deny Petitioner’s request for arbitration.

12, In this case, the burden of proof rests upon the Petitioner to show, by a preponderance of the evidence, that he filed his request for arbitration in a timely manner. Young v. State of Florida, Department of Community Affairs, 567 So. 2d 2 (Fla. 3rd DCA 1990). Review of the facts of this case in the light most favorable to Petitioner, and affording him any and all possible extensions, does not establish that Petitioner filed his request in a timely manner. If true, the failure of the dealer to provide Petitioner with a copy of the Lemon Law brochure may serve as a basis for collateral action by Petitioner regarding the dealer, but it does not excuse the lack of timeliness of his application for arbitration.

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 under the Florida Lemon Law as untimely filed.

DONE AND ENTERED this 22nd day of April, 1998, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1998.

COPIES FURNISHED:

Marshall E. Pitts, III 3831 Soto Road

Groveland, Florida 34736

Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services

Mayo Building, Room 515 Tallahassee, Florida 32399-0800

Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel Department of Agriculture

and Consumer Services

The Capitol, Plaza Level 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: 97-005973

Orders for Case No: 97-005973