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.
Findings Of Fact 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. 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. 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. 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. 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. 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. 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.
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
The Issue Whether Petitioner filed a timely Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact Pursuant to Section 681.109, Florida Statutes, the Department's Division of Consumer Services (hereinafter, the "Division") is the state agency in Florida charged with the responsibility to receive and evaluate customer complaints and Requests for Arbitration in disputes with automobile manufacturers and dealers doing business in this state, and to determine if the requests qualify for referral to the Attorney General for further processing and action. Petitioner took delivery of the Ford motor vehicle at issue on January 29, 1993, and the vehicle reached 24,000 miles on January 7, 1995. In the intervening months, the truck exhibited severe vibration while being driven. Petitioner took the vehicle to the Ford dealer for repair, beginning on April 21, 1993 and again on June 3, June 21, twice in July 1993, January 6, 1994, and January 5, 1995. However, the problem was not corrected. In February 1995, Ford authorized Petitioner to take the vehicle to a private garage and the garage attempted to correct the problem without success. On May 8, 1995, Petitioner mailed, by registered mail to Ford Motor Company, a Motor Vehicle Defect Notification, with a copy to the Office of the Attorney General, Lemon Law Research Unit. In response to the Notification, on June 6, 1995, Ford Motor Company requested Petitioner take the vehicle in for final repairs. No response was received from the Attorney General's Office. When no response was received from the Attorney's General Office, Petitioner called Respondent's office and learned for the first time, that they must file a Request for Arbitration with Respondent's Consumer Complaint Division. On August 25, 1995, the Department received and filed Petitioners' Request for Arbitration by the Board. The initial Lemon Law Rights Period of 18 months from the date of delivery of the vehicle expired on July 29, 1994. Petitioner was entitled to an extension of the original Lemon Law Rights period because items of nonconformity reported during the original Lemon Law Rights Period remained uncured after that period. The extension ended on January 29, 1995, pursuant to Section 681.104(3)(b), Florida Statutes. Consumers are entitled to file for relief under the statute for a period of up to 6 months after the expiration of the Lemon Law Rights Period; that filing period ended on July 29, 1995, pursuant to section 681.109(4), Florida Statutes. Ford Motor Company does not have a state certified procedure. The Lemon Law and a state certified procedure are not synonymous. Petitioner forwarded his Motor Defect Notification to Ford Motor Company and the Office of the Attorney General. Each received the notification on May 22, 1995 and May 11, 1995 respectively. The Motor Vehicle Defect Notification and the Request for Arbitration are not the same document and do not serve the same purpose. Petitioner's Request for Arbitration was denied based upon the Department's conclusion that Petitioner's request was filed untimely as set forth in Respondent's Letter of Denial. Petitioner did not request arbitration before the Board until well after the last possible filing date of July 29, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order denying the Petitioner's request for arbitration before the Board. DONE AND ENTERED this 27th day of February, 1996 in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, 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 27th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5309 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Petitioner did not submit proposed findings. Respondent's Proposed Findings of Fact. Accepted in substance paragraphs 1-11 COPIES FURNISHED: 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 George W. Bierlin, Jr. Loretta Bierlin 1725 Richardson Road Merritt Island, Florida 32952 Rhonda Long Bass, Esquire Legal Division Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner has leased the motor vehicle that is the subject of the instant controversy, a 1992 Merdedes-Benz 300SE (hereinafter referred to as the "subject vehicle"), from Bill Ussery Motors, Inc., an automobile dealership located in Coral Gables, Florida (hereinafter referred to as the "Dealership"), since October 30, 1991, when he took delivery of the vehicle. At the time of delivery, the subject vehicle was new. Thereafter, various problems developed with the subject vehicle. Petitioner reported these problems to the Dealership, but the Dealership was unable to completely rectify them within 18 months of the date of delivery. Petitioner drove the vehicle less than 24,000 miles during this 18-month period. Some of the problems that Petitioner reported during the first 18 months of his possession of the vehicle still persist today. On or about April 23, 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer requesting that it "make a final attempt to correct the . . . reported . . defects." The manufacturer responded by sending the following letter, dated April 27, 1993, to Petitioner: This will acknowledge the Motor Vehicle Defect Notification form you completed, which was received by this office today. This letter shall serve as a written request to provide Mercedes-Benz of North America ("MBNA") with an opportunity to inspect, verify and if necessary, repair your vehicle. As you are aware, Bill Ussery Motors, Inc., located in Coral Gables, Fl., is a reasonably accessible repair facility. Mr. Eric Moore, Field Service Manager, will contact you to make an appointment to meet with you. If you have any questions or wish to discuss this matter further, please do not hesitate to call me at (904)443-2150. In or about December of 1993, Petitioner retained Joseph Portuondo, Esquire, who sent, on Petitioner's behalf, the following letter, dated December 13, 1993, to the manufacturer: As you know, Mr. Palaez has experienced such difficulty with his automobile that it led to his filing of a Motor Vehicle Defect Notification with you on April 23, 1993. Thereafter, on April 27, 1993, you directed Mr. Palaez to Bill Ussery [Motors], Inc. of Coral Gables, Florida, to attempt the last chance repairs to his automobile. Mr. Palaez complied with your instructions. However, the defects in the automobile remain unresolved and out of service days are well in excess of those required under the Lemon Laws of this state. Simply put, Mr. Palaez has a lemon for which we demand a remedy. As such, we hereby demand that Mr. Palaez be immediately refunded the full purchase price of the vehicle. In the event that you do not immediately provide a refund, we hereby demand that this matter be referred to the appropriate state-certified settlement program. Needless to say, if we are unsatisfied with this matter, we will proceed for relief to the Florida New Motor Vehicle Arbitration Board of the Office of the Attorney General. We trust that our position in this matter is clear. It is truly unfortunate that Mercedes-Benz and its dealer have chosen to treat Mr. Palaez so poorly as a customer that he has had to resort to judicial relief. In response to Portuondo's letter, the manufacturer sent him the following letter, dated December 21, 1993: We are writing in response to the correspondence received by this office today, regarding your client's vehicle. Mercedes-Benz of North America is concerned in this matter and as a result, your concerns have been assigned to Mr. Eric Moore, Field Service Manager, a member of our staff for handling. You will, if not already, be contacted by him in the near future. Thank you for bringing this matter to our attention. On or about December 29, 1993, Portuondo sent Petitioner a copy of the manufacturer's December 21, 1993, letter, along with the following cover letter: Enclosed herein please find a letter recently received [with respect to the above-referenced] subject matter. I will let you know if there is any progress. Petitioner waited until August 12, 1994, to file with the Department his Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. He did not file a request sooner because, from April of 1993, the manufacturer and Dealership had repeatedly made representations to him, upon which he relied, that they would either make the necessary repairs to the subject vehicle or otherwise resolve the matter to his satisfaction so that there would be no need for him to resort to arbitration or litigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner's request for arbitration is not time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of March, 1995. STUART M. LERNER 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 20th day of March, 1995.
The Issue The issue in this case is whether Respondent, the Department of Agriculture and Consumer Services, is estopped from denying Petitioners' request for arbitration under Florida's Motor Vehicle Warranty Enforcement Act, Chapter 681, Florida Statutes.
Findings Of Fact The Parties. Petitioners, William and Margarent Newell, are husband and wife. The Newells reside in Lake City, Florida. Respondent, the Department of Agriculture and Consumer Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. Among other things, the Department is responsible for the receipt and evaluation of complaints and requests for arbitration involving disputes between automobile dealers and manufacturers doing business in Florida and the citizens of the State of Florida. See Chapter 681, Florida Statutes. The Newells' Automobile Purchase. On August 6, 1993, the Newells took possession of a new Dodge Colt (hereinafter referred to as the "Colt"). The date the contract of purchase was signed, and, therefore, the date of purchase, was August 9, 1993. Stipulated Facts. The Colt was purchased from Sunbelt Chrysler (hereinafter referred to as the "Dealer"), in Lake City, Florida. The Newell's Experience with the Colt and the Department's Advice. During the first week after taking possession of the Colt, Ms. Newell began to experience trouble with the automatic transmission. The transmission would "slip" resulting in the engine "winding out". On August 14, 1993, Ms. Newell took the Colt to the Dealer and reported the transmission problems. An employee of the Dealer took the Colt for a test ride and told Ms. Newell that he found nothing wrong with the transmission. Ms. Newell was told to bring the Colt back if she continued to experience trouble with the transmission. No documentation of the August 14, 1993 visit with the Dealer was provided to Ms. Newell by the Dealer. Ms. Newell's testimony concerning the date and incident was unrefutted. The Newells continued to experience problems with the transmission. On September 23, 1993, Mr. Newell took the Colt back to the Dealer and reported the transmission problem again. This time the Colt was left with the Dealer. The Dealer returned the Colt to the Newells on September 23, 1993 and told them that no problem was experienced or discovered with the transmission. Again, the Dealer told the Newells to bring the Colt back if they experienced further trouble. No documentation of the September 23, 1993 visit with the Dealer was provided to the Newells by the Dealer. The Newells' testimony concerning the date and incident was unrefutted. Mr. Newell took the Colt back to the Dealer for the third time on September 27, 1993. This time the Colt was kept overnight by the Dealer. The Colt was returned September 28, 1993. Again, no problem with the transmission was found by the Dealer. The Dealer provided documentation to the Newells of the September 27, 1993 effort at repair. On April 8, 1994, after continuing to experience problems with the Colt's transmission, Mr. Newell contacted a representative of the Department in an effort to gather information about how to file a claim under Florida's Vehicle Warranty Enforcement Act, Chapter 681, Florida Statutes. The Department's representative told Mr. Newell that he would need "documentation" of a minimum of three repair attempts on the Colt by the Dealer before a claim could be filed. What constituted "documentation" was not explained, but it was resonable for Mr. Newell to conclude that written documentation from the Dealer of three attempts was required. Mr. Newell only had documentation of one repair attempt from the Dealer as of April 8, 1994. Mr. Newell was not told that the two undocumented repair attempts of August 14, 1993 and September 23, 1993, could also qualify as repair attempts if Mr. Newell provided an affidavit stating that repair attempts were made on those dates. In reasonasble reliance on the information provided by the Department to Mr. Newell on April 8, 1993, the Newells did not file a claim with the Department. On May 25, 1994, the Colt had been driven 24,000 miles. This constituted the end of the "Lemon Law rights period" as used in Section 681.109, Florida Statutes, and as defined in Section 681.102(9), Florida Statutes. (Stipulated Facts). The transmission continued to malfunction after April 8, 1993. On July 21, 1994, the Newells had the Colt serviced for the transmission problem. They received their second "documentation" at this time from the Dealer. On October 12, 1994, the Newells had the Colt serviced again for the same problem. The transmission had to be rebuilt on this occassion. The Newells received their third "documentation" at this time from the Dealer. Despite having three "documentations" of repair attempts as of October 12, 1994, the Newells did not file a claim with the Department at that time. The Newells' reliance on the representations of the Department made on April 8, 1994, would not, therefore, reasonably explain why they did not file a claim upon receiving the documentation that they believed was necessary on October 12, 1994. Reliance on the Department's representations of April 8, 1994, does not explain or justify the Newells lack of complaince with the time requirements for filing a request for arbitration. On or about January 6, 1995, Mr. Newell again spoke with a representative of the Department concerning this matter. Mr. Newell explained that he had the three repair documents that he had been told he needed. He had also completed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board which he intended to file with the Department. Mr. Newell was incorrectly told, however, that the time for filing the request had expired. In reliance upon this representation, Mr. Newell again failed to file the request for arbitration. On January 25, 1995, the Newells sent notice to the manufacturer of their problem with the Colt. On February 14, 1995, a representative from the manufacturer inspected the Colt. Again, nothing was found wrong with the rebuilt transmission. On May 25, 1995, the statutory period for requesting arbitration expired. The Newells were entitled to a six-month extension from May 25, 1994, to November 25, 1994, pursuant to Section 681.104(3)(b), Florida Statutes, because they had reported the problem with the transmission during the original Lemon Law rights period and it had not been cured. Pursuant to Section 681.109(4), Florida Statutes, the Newells had six-months after the end of the extended Lemon Law rights period, or from November 25, 1994 to May 25, 1995, to file their request for arbtiration. On September 1, 1995, the rebuilt transmission on the Colt again burned up. The Colt has remained parked since that date through the date of the hearing in this case. The Newells' Request for Arbitration. On September 28, 1995, after again speaking to a representative from the Department, the Newells filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board with the Department. This request was filed just over four months after the deadline for filing the request expired. The Department denied the request by letter dated October 11, 1995, based upon the Department's determination that the request was untimely.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department accepting the request for arbitration filed by William and Margaret Newell. DONE AND ENTERED this 22nd day of February, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5938 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Fahami did not file a proposed order. The Newells' Proposed Findings of Fact Accepted in 1. Accepted in 2. Accepted in 3. Accepted in 5. Accepted in 6-7. Accepted in 8-9. Accepted in 11-12. Accepted in 14. 9-10 Accepted in 15. Accepted in 16. Hereby accepted. Accepted in 17. Hereby accepted. Accepted in 19-20. See 22. Accepted in 26. Accepted in 24. Accepted in 25. Accepted in 26. Accepted in 27. The Department's Proposed Findings of Fact Accepted in 2. Accepted in 26. Accepted in 3 and 18. Accepted in 18 and 24. 5-6 Accepted in 24. Not supported by the weight of the evidence. Petitioners' testimony constitutes unrefutted, credible evidence that they made repair attempts priot to September 27, 1993. See 14. Not relevant. The publication was not offered into evidence. Therefore, the evidence failed to prove what information the publication included. The significant phone conversation took place on April 8, 1994. While the phone bills were not offered into evidence, Petitioners' unrefutted, credible testimony was sufficient to prove that the phone call took place. 11 See 14-16. 12 Accepted in 15-17. 13-14 Hereby accepted. Accepted in 23. Not supported by the weight of the evidence. 17-18 Hereby accepted. But see 17 and 22. Accepted in 26. Accepted in 27. COPIES FURNISHED: John K. McPherson, Esquire 703 North Main Street Gainesville, Florida 32601 Rhonda Long Bass, Esquire Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Bob Crawford, Commissioner Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, Esquire Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 1, 1994, Petitioner purchased from Triangle Auto Center Inc., d/b/a Toyota of Hollywood (hereinafter referred to as the "Dealer"), a Broward County, Florida automobile dealer, a used 1994 Chevrolet Cavalier, which had been driven 7,726 miles. Petitioner had been told by the Dealer, before the purchase, that the vehicle had been used by its previous owner "to drive documents to the airport." At the time Petitioner purchased the vehicle, it was still under factory warranty. Thereafter, various problems developed with the vehicle, the worst and most persistent of which involved the vehicle's tires and brakes. These problems have yet to be completely remedied. Petitioner reported the problems she was experiencing with her vehicle to the Dealer. The Dealer told Petitioner that it was unable to help her. At the Dealer's suggestion, Petitioner telephoned and wrote letters of complaint to the manufacturer of the vehicle. The manufacturer advised Petitioner to file a complaint/arbitration request with the Better Business Bureau's Auto Line program (hereinafter referred to as the "BBB program"), an arbitration program in which the manufacturer participates. Petitioner followed the advice she was given and filed a complaint/arbitration request with the BBB program. On September 29, 1995, the BBB program sent Petitioner a letter notifying her that the arbitrator who had heard her case had determined that she was not entitled to any relief from the manufacturer. The letter further advised Petitioner of the following: The enclosed decision is not binding on the consumer. The consumer may reject this decision and, if eligible, may pursue arbitration with the Florida New Vehicle Arbitration Board administered by the Office of the Attorney General. To obtain information about eligibility for the state run program, the consumer should contact the Division of Consumer Services' Lemon Law hotline at 1-800-321-5366. Please be advised that Section 681.109(4), F.S., provides that the consumer must file the request for arbitration within 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified dispute-settlement procedure, whichever occurs later. Petitioner rejected the arbitrator's decision. On October 23, 1995, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated November 9, 1995, the Department advised Petitioner that "a determination ha[d] been made in accordance with Section 681.109 Florida Statutes to reject [her request because her] vehicle was not purchased new in Florida."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order denying Petitioner's request for arbitration. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of April, 1996. STUART M. LERNER, 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 3rd day of April, 1996.
