STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR H. BAREDIAN, )

)

Petitioner, )

)

vs. ) Case No. 98-4863

)

DEPARTMENT OF AGRICULTURE )

AND CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, an Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on February 17, 1999, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Arthur Baredian, pro se

275 Ravine Street Jacksonville, Florida 32206

For Respondent: Howard Holtzendorf, Esquire

Department of Agriculture and Consumer Services

Room 515

Mayo Building

Tallahassee, Florida 32399-0800 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent properly denied Petitioner’s request for arbitration before the Florida New Motor Vehicle Arbitration Board.

PRELIMINARY STATEMENT

By letter dated August 5, 1998, Respondent informed Petitioner that Petitioner’s request for arbitration was denied.

Petitioner subsequently requested a formal administrative hearing regarding Respondent’s denial. Thereafter the matter was transferred to the Division of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner testified in his own behalf. Respondent presented the testimony of Petitioner and one other witness and offered six exhibits into evidence.

The transcript of the final hearing was filed with the Division of Administrative Hearings on March 12, 1999.

Proposed findings of fact submitted by the parties have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is the Florida Department of Agriculture And Consumer Services, Division of Consumer Services. Respondent administers the “Motor Vehicle Enforcement Warranty” set forth in Chapter 681, Florida Statutes, inclusive of the Florida New Vehicle Arbitration Board.

2. Petitioner is a consumer who took delivery of the then new motor vehicle at issue on December 8, 1995. He received no information from the dealership where he purchased the vehicle concerning his rights to access to Respondent’s arbitration program.

3. On June 1, 1998, Respondent received Petitioner’s request for arbitration. Petitioner’s vehicle had 24,000 miles on it at that time.

4. Petitioner’s arbitration request disclosed vehicle problems requiring at least three repair attempts.

5. Petitioner’s request failed to provide a copy of any written defect notification, or other written notification to the manufacturer of the vehicle.

6. In his arbitration application and later at the final hearing, Petitioner maintained that he had provided the manufacturer with such written notification. However, despite Respondent’s repeated request of Petitioner to provide Respondent with copies of that notification, Petitioner failed to provide any such documentation. The fourth notice by Respondent to Petitioner informed him that a copy of such notification must be received by Respondent no later than August 3, 1998.

7. Petitioner failed to provide Respondent with a copy of the manufacturer notification by the deadline of August 3, 1998. Thereafter, by letter dated August 5, 1998, Respondent notified Petitioner that his request for arbitration was denied as ineligible.

8. At the final hearing, the testimony of Respondent’s spokesman, James D. Morrison, established that Petitioner’s failure to provide Respondent with a copy of the Motor Vehicle Defect Information form sent to the manufacturer by Petitioner

   was the sole reason that Petitioner’s application for arbitration was denied.

9. As further established by Morrison’s testimony, the rationale of Respondent for the requirement of the copy of Petitioner’s notification to the manufacturer, and copy of receipt of acceptance by the manufacturer, is to ascertain that Petitioner has complied with Section 681.104, Florida Statutes, requiring that all applicants for arbitration first notify the vehicle manufacturer by registered or express mail of such application.

   CONCLUSIONS OF LAW

   
   

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

11. This Recommended Order utilizes those statutory requirements extant at the time of Petitioner’s vehicle purchase in 1995.

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

13. The Act provides "statutory procedures whereby a consumer [of a new motor vehicle] 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, Florida Statutes

14. 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, Florida Statutes.

15. Respondent is responsible, under the Act, for "screen[ing] all requests for arbitration to determine eligibility" and "forward[ing] to the [B]oard all disputes that [it] determines are potentially entitled to relief." Section 681.109(5), Florida Statutes

16. Petitioner bears the burden of proof in this proceeding with regard to the issue of whether Respondent improperly denied the application for arbitration. Fla. DOT v. J.W.C. Co., Inc.,

396 So. 2d 778 (Fla. 1st DCA, 1981). Respondent’s requirement of some indicia of evidence, other than Petitioner’s assertion, that the vehicle manufacturer had been properly notified was a reasonable one and in keeping with Respondent’s application screening duties. Petitioner has not met his burden of showing by a preponderance of the evidence that compliance with the notification requirement was met.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Respondent enter a final order denying Petitioner’s application.

DONE AND ENTERED this 7th day of April, 1999, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1999.

COPIES FURNISHED:

Howard C. Holtzendorf, Esquire Department of Agriculture

and Consumer Services Mayo Building, Room 515

Tallahassee, Florida 32399-0800

Arthur H. Baredian

275 Ravine Street Jacksonville, Florida 32206

Richard Tritschler, General Counsel Department of Agriculture

and Consumer Services

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

Bob Crawford, Commissioner of Agriculture 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: 98-004863

Orders for Case No: 98-004863