The Issue The issue for consideration in this matter is whether Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board should be denied as untimely.
Findings Of Fact The Department's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive and evaluate requests for arbitration before the Florida New Motor Vehicle Arbitration Board (Board), submitted by purchasers of new motor vehicles in this state. If a request qualifies for arbitration and is timely filed, the matter is referred to the Florida Attorney General for further processing and action. On September 10, 1993, Petitioner took delivery of a new Ford Escort automobile from Ken Marks Ford in Clearwater, Florida. The mileage reflected on the odometer at the time of delivery was 26 miles. Petitioner claims that at the time he took delivery of the vehicle, he was not furnished with a copy of the Attorney General's brochure entitled Preserving Your Rights Under the Florida Lemon Law, nor was he given any other information, either in person or in writing, from the dealer or from anyone else, regarding the operation of the Lemon Law program. However, at hearing he indicated that he had a copy of the pamphlet as early as October 13, 1995, when he signed the Defect Notification form which is included within the pamphlet. The pamphlet clearly outlines the benefits, requirements and time limits pertinent to the program. From the very beginning of his ownership, Petitioner experienced difficulty with the vehicle. His first problem, requiring the replacement of the right head lamp assembly, took place on September 13, 1993, only three days after delivery and continued until December, 1995. He experienced problems with several systems at least three times each. These included squealing brakes, the right seat belt, the alarm light, the tachometer, the gas pedal and the idle. By the time he took the vehicle in for the third time for the most recent problem, the odometer registered 30,710 miles. He claims to have notified the manufacturer in writing of this problem on October 18, 1995. Mr. Maxwell accumulated 24,000 miles on his vehicle on or before January 4, 1995. It was on that date, when he brought the vehicle to the dealer for the third time for the squeaking brakes, the alarm light and the seat belt problems, that the odometer showed 24,035 miles. Even though the initial Lemon law period expired at 24,000 miles, Petitioner was potentially eligible for a six month extension of the original rights period because several complaints registered with the dealer during the initial period remained uncorrected at that time. The six months extension expired on or before July 4, 1995. Under the Florida Lemon Law, consumers are entitled to file for relief under the statute for a period of up to six months after the expiration of the Lemon Law rights period. In this case, because of the six month extension, the filing deadline of six months expired no later than January 4, 1996. In October 1995, Petitioner contacted Ford's Customer Assistance Center and requested information regarding correction of his problems. In response he received a customer satisfaction questionnaire but no assistance with his difficulties. Thereafter, he contacted the Department to request the form for filing the Request for Arbitration on November 11, 1995. Subsequent to the receipt of the Request for Arbitration from the Division, Mr. Maxwell engaged in several telephone negotiations with representatives of Ford Motor Company and received oral settlement offers from the company, including either a replacement automobile or a total refund. When Mr. Maxwell elected to receive a refund, he was told that the Ford representative would get back to him but no one from either Ford Motor Company or Ken Marks Ford ever did. Petitioner believes he was misled by both so that he would thereafter become ineligible for participation in the arbitration program. Ford Motor Company has no state- certified settlement procedure. Petitioner's Request for Arbitration reflects January 6, 1996 as the date of execution. It was received in the Division of Consumer Services on January 10, 1996. It was subsequently reviewed and rejected as untimely by the Division on January 16, 1996.
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 as untimely. DONE and ENTERED this 7th day of June, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1996. COPIES FURNISHED: Paul D. Maxwell 775 Lantana Avenue Clearwater Beach, Florida 34630 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture 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
The Issue The issue is whether Petitioners’ request for arbitration under the Florida Lemon Law was timely.
Findings Of Fact Petitioners took delivery in Florida of a 1995 Saturn automobile on September 16, 1994. 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. 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. 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.
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
Findings Of Fact In 1991, Petitioner owned a new 1991 Ford conversion van which he felt was a lemon as that term is defined in the Florida Lemon Law. In pursuit of his legal rights under the Lemon Law, Petitioner made a request for arbitration of his automotive problem. Petitioner first applied for arbitration pursuant to the Lemon Law on December 31, 1991. Petitioner's application was incomplete because it failed to show that Petitioner had properly addressed and mailed Ford Motor Company a Motor Vehicle Defect Notification. The Department returned the arbitration request to Petitioner on January 14, 1992. The accompanying letter informed Petitioner that he was required to submit, by certified mail, a Motor Vehicle Defect Notification form to the "Ford Motor Company, Attention: Customer Relations, Post Office Box 945500, Maitland, Florida 32794 Petitioner was instructed to supply the Department with evidence of his compliance with the Notice requirement providing a proper receipt along with his application within 30 days of Petitioner's receipt of the January 14, 1992, letter. Petitioner failed to respond or return his application within the 30 days. No evidence was ever submitted to the Division to show that Mr. Thomas mailed the Motor Vehicle Defect Notification Form to the Ford Motor Company as instructed by the January 14, 1992, letter from Respondent and as required by statute. Similarly, no evidence was presented at the hearing that the form was ever mailed to the appropriate entity. After 30 days had lapsed from the January 14, 1992 letter, the Department could have "rejected" Petitioner's request for arbitration by sending him a notice of rejection as required by Rule 2-32.009(c)(2), Florida Administrative Code. However, the Division did not send a rejection notice to Petitioner at that time. Instead, Petitioner's file was closed on March 13, 1992, with no further action taken. Therefore, the time period for amending Petitioner's first application did not expire and remained open at least through January, 1993. At the hearing, Petitioner claimed that he did not respond to the Division's request for more information because he was mentally disabled and was hospitalized for 45 days between December 1991, and October 1992, and that the American's with Disabilities Act requires that an exception to compliance with the Rules and Statutes be given to him. However, the evidence did not demonstrate that Petitioner was disabled during the entire period of time after the Division's request for information. Additionally, Petitioner did not request an extension of his response time as is required by the Florida Administrative Code. Moreover, since neither the rules nor the statutes provide for such an ADA exception, the Division cannot unilaterally fashion such an exception without engaging in rulemaking under Chapter 120. Such an exception must be addressed by the Florida Legislature or in rulemaking. Therefore, Petitioner is not entitled to any exception to the Lemon Law requirements because of his disability or hospitalizations. Ten months later, On October 5, 1992, Petitioner again applied for Lemon Law arbitration. Petitioner's application was again incomplete and the Department requested more information. However, because the Division did not send Petitioner a formal rejection letter, the October 5, 1992, application related back to the first application filed December 31, 1991. Petitioner supplemented the second application with information showing that his vehicle had reached 24,000 miles in September of 1991. On November 13, 1992, Respondent notified Petitioner that his request for arbitration was untimely because his request did not fall within the statutory period allowed once his vehicle reached 24,000 miles. A rejection notice was contained in the Department's letter of November 13, 1992, thereby beginning the 30 day time period for any amendments to either of Petitioner's applications. As indicated earlier, the 30 day time period expired without Petitioner submitting any evidence that he had mailed Ford Motor Co. a Vehicle Defect Notification form. Therefore, Petitioner's application remained incomplete at the time any request for arbitration could have been made expired. Petitioner is therefore not entitled to arbitration under the Florida Lemon Law. Finally, after Petitioner had requested arbitration, Petitioner sold and replaced the conversion van prior to the hearing. Therefore, Petitioner can not present the van to Ford Motor Co. for one last opportunity to repair. Such presentation is a condition precedent to arbitration which Petitioner cannot meet. Additionally, by selling his vehicle, Mr. Thomas has abandoned his Lemon Law Claim, in that he no longer has an ongoing dispute with Ford Motor Company that requires arbitration and his request for such is moot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Department of Agriculture and Consumer Services denying Mr. Andrew Thomas' request for Lemon Law arbitration. DONE AND ENTERED this 22nd day of September, 1994, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1994.
The Issue The issue in this case is whether Respondent properly denied Petitioners' request for arbitration before the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact Respondent is the state agency charged with the responsibility to receive and evaluate customer complaints and requests for arbitration in disputes with automobile manufacturers and dealers doing business in the state of Florida. Respondent's duty includes determining whether a request for arbitration qualifies under Section 681.109, Florida Statutes, for referral to the Florida New Motor Vehicle Arbitration Board. Petitioners took delivery of a new Ford motor vehicle on February 3, 1992. Thereafter, Petitioners began having problems with the automobile's engine, windshield wipers, driver's window and power steering. Petitioners reported these problems to the authorized service agent for the first time on or about January 13, 1993. The mileage on the automobile was approximately 11,000 miles at that time. The authorized dealer attempted to repair the subject motor vehicle on January 13, 1993, February 9, 1993, and December 1, 1993. In January of 1994, the automobile had been operated for 24,000 miles. The authorized dealer again attempted to repair the subject vehicle on March 9, 1994. Petitioners completed a Vehicle Defect Notification on August 15, 1994. The purpose of this notice was to inform the manufacturer of the unsuccessful repair attempts. Ford Motor Company received this notice on August 18, 1994. The mileage on the automobile at that time was 29,569 miles. On August 23, 1994, the authorized dealer made a final attempt to repair the subject automobile. At all times material to this proceeding, Ford Motor Company participated in a state certified dispute settlement program. On October 5, 1994, Petitioners completed a Dispute Settlement Board Application. The Dispute Settlement Board received Petitioners' application on October 17, 1994. Petitioners took their automobile to the authorized dealer on October 27, 1994, because the engine light was on. The Dispute Settlement Board considered Petitioners' case on November 17, 1994. By letter dated November 19, 1994, the Dispute Settlement Board notified Petitioners that Ford Motor Company would repair the automobile's window and windshield wipers with no expense to Petitioners. The Dispute Settlement Board also informed Petitioners that Ford Motor Company would not be required to repair the engine, speaker, and rear view mirror concerns because, according company and authorized dealer reports dated October 31, 1994, those problems were resolved. On December 17, 1994, Petitioners completed a Request for Arbitration form. Respondent received this request on December 22, 1994. Respondent's letter of January 23, 1995, informed Petitioners that their arbitration application was not properly documented concerning the vehicle finance agreement. Respondent directed Petitioners to re-file their application with the proper documentation. Respondent also advised Petitioners that the application might be rejected as untimely. On or before February 3, 1995, Petitioners re-submitted their arbitration application. Respondent rejected Petitioners' arbitration application as untimely. Subsequently, Petitioners filed a request for an administrative hearing to contest the denial of their application. Upon receipt of Petitioners' request for administrative hearing, Respondent reviewed Petitioners' file again. After this review, Respondent sent Petitioners a May 25, 1994, letter which erroneously determined that Petitioners' request for arbitration was eligible for referral to the Florida New Motor Vehicle Arbitration Board. This letter correctly determined that the subject vehicle reached 24,000 after January 1, 1994. However, it incorrectly determined that the Lemon Law rights period had been extended to January 1, 1995. By letter dated June 8, 1995, Respondent corrected its erroneous decision, withdrew the letter of May 25, 1995, and reinstated the letter of February 3, 1995. The initial Lemon Law rights period expired on August 3, 1993, eighteen (18) months after the date of delivery of the subject motor vehicle. Therefore it is irrelevant that the car did not accumulate 24,000 miles until January of 1994. Respondent correctly extended the initial Lemon Law rights period for six (6) months, until February 3, 1994, because: (1) Petitioners notified the authorized dealer about the automobile's nonconformance with warranty within the initial Lemon Law rights period; and (2) The authorized dealer did not cure the defects within the initial Lemon Law rights period. In order to be eligible for arbitration, Petitioners had to file their claim with the certified dispute settlement board within six (6) months of the expiration of the extended Lemon Law rights period which, in this case, was August 3, 1994. Petitioners were not entitled to file their request for arbitration within thirty (30) days after final action of the certified dispute settlement procedure because they did not even start that procedure until the time to file a request for arbitration had expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on grounds that the request was not timely. DONE AND ENTERED this 26th day of February, 1996, in Tallahassee, Florida. SUZANNE HOOD, HEARING OFFICER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4772 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1-11 are accepted in substance as restated in Findings of Fact 1-20 of this Recommended Order. COPIES FURNISHED Carlton and Patricia Jones 804 Pheasant Court West Jacksonville, FL 32259 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, FL 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue Whether Petitioner's arbitration request was timely filed.
Findings Of Fact Petitioner purchased his vehicle, a 1991 Ford F-350 Supercab XLT Lariat from Bartow Ford in Bartow, Florida on September 4, 1990. At the time of purchase, the odometer read less than 100 miles. Petitioner applied for arbitration on April 8, 1994. At the time of Petitioner's arbitration request, the vehicle had been driven approximately eighty-three thousand (83,000) miles. Petitioner's problems with his vehicle center around the automatic transmission. Respondent's vehicle reached twenty-four thousand (24,000) miles on or about December 15, 1991. On April 18, 1994, Respondent notified Petitioner that his arbitration request was untimely filed and was being denied. The Motor Vehicle Sales Warranty Enforcement Act a/k/a the "Lemon Law", which is set forth in Chapter 681, Florida Statutes, is administered jointly by the Respondent and the Florida New Motor Vehicle Arbitration Board, Department of Legal Affairs. Respondent is responsible for initially reviewing an application to determine whether or not it is facially appropriate and to make a determination as to whether the applicant is, or is not, "potentially entitled to relief". Based on Respondent's determination that Petitioner's request was untimely filed, the request was denied on April 18, 1994. Petitioner's vehicle initially developed a transmission problem within six thousand seven hundred and seven (6,707) miles. The first service repair came on or about January 15, 1991. Petitioner returned the vehicle with the same problem on or about August 14, 1991 at which time the vehicle odometer read twenty-two thousand one hundred six (22,106) miles. Petitioner took the vehicle for repairs on three subsequent occasions and on each occasion the manufacturer rebuilt or replaced the transmission. Petitioner continues to have problems with his transmission and the manufacturer repairs the vehicle whenever it is brought in for service under the waranty. James D. Morrison, Respondent's supervisor for its "Lemon Law" section, reviewed Petitioner's file and acted on Petitioner's arbitration request. As noted, the request was filed on April 8, 1994. Morrison's review confirmed that Petitioner purchased his vehicle on September 4, 1990. Based on Morrison's calculations, Petitioner had to timely file his arbitration request within eighteen months of the date of purchase or twenty-four thousand (24,000) miles. Morrison used the most extended filing period by referring to the date of purchase and counting forward eighteen months which derived the date of March 6, 1992. Morrison granted Petitioner an additional extension of six months in compliance with extensions allowed if a defect occurs during the "lemon law" period. By granting Petitioner these extensions and the most extended allowable filing period within which the filing had to have been made, all arbitration requests by Petitioner, to be timely filed, had to occur on or before December 4, 1992.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent, the Department of Agriculture and Consumer Services, enter a final order denying Petitioner's request for Lemon Law arbitration as it was untimely filed. DONE AND ENTERED this 28th day of October, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994. COPIES FURNISHED: Paul G. LaPlaca Post Office Box 787 Valrico, Florida 33594 Barbara R. Edwards, 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, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
