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.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On February 12, 1993, Petitioner took delivery of a new 1/ 1993 Chevrolet C-1500 truck that he had purchased from Maroone Chevrolet, a Florida Chevrolet dealership. Thereafter, various problems developed with the vehicle. Petitioner reported these problems to Steve Moore Chevrolet, the Chevrolet dealership to which he brought the vehicle to be serviced (hereinafter referred to as the "Servicing Dealership"). The Servicing Dealership, however, was unable to remedy these problems within 18 months of the date of delivery (hereinafter referred to as the "18-month post-delivery period"). During the 18-month post-delivery period, Petitioner drove the vehicle more than 24,000 miles. By June 14, 1994 (approximately 16 months after the date of delivery), he had already driven the vehicle 26,569 miles. 2/ At least some of the problems that Petitioner reported during the 18- month post-delivery period still persist today. In the summer of 1995, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer of the vehicle, the Chevrolet Motor Division of General Motors (hereinafter referred to as "Chevrolet"), requesting that it "make a final attempt to correct the . . . reported . . defects." The notice was received by Chevrolet's customer assistance branch office in Tampa on August 16, 1995. Chevrolet, through its employee, Jennifer Kenyon, responded to the notice by sending the following letter, dated August 18, 1995, to Petitioner: This is to acknowledge receipt on August 18, 1995 by the Chevrolet Motor Division of your demand letter dated July 28, 1995. Please be advised that Chevrolet Motor Division stands ready to make any necessary adjustments, repairs, or replacements to any component contained on or in the motor vehicle now belonging to you bearing Vehicle Identification Number . . . which does not conform to the purpose for which they were intended or manufactured and which fall within the limitation set forth in the New Vehicle Limited Warranty supplied with said vehicle by General Motors, Chevrolet Motor Division. Should Chevrolet Motor Division's attempts to adjust, repair, or replace said component(s) to your satisfaction fail, you would be offered the arbitration process as a means of settling your dispute with General Motors, Chevrolet Motor Division. Please contact Steve Moore Chevrolet so they may assist in making arrangements for an inspection and/or repair. Petitioner telephoned Kenyon after receiving Kenyon's letter. During their telephone conversation, Kenyon told Petitioner that Chevrolet would probably "buy the vehicle back" from him, but that no final decision would be made until it was determined whether he "qualified for the Lemon Law." During a subsequent telephone conversation, Kenyon told Petitioner that a determination had been made that Petitioner did not "qualify for the Lemon Law" and that, although Chevrolet would not repurchase his vehicle, it would "work with him." Petitioner subsequently telephoned the Florida Attorney General's Office (hereinafter referred to the "AGO"). The AGO referred Petitioner to the Department. When Petitioner contacted the Department, he was advised to file a complaint/arbitration request with the Better Business Bureau's Auto Line program (hereinafter referred to as the "BBB program"), a certified arbitration program in which Chevrolet participates. Petitioner followed the advice he was given. On or about September 22, 1995, he filed a complaint/arbitration request with the BBB program. On September 27, 1995, the BBB program sent Petitioner a letter which read as follows: After careful review of your case, we have determined that your complaint is not eligible for further handling in the BBB AUTO LINE program. We have made this determination for the following reasons: The claim was not filed with the BBB within 6 months after the end of the Lemon Law Rights Period in order to pursue arbitration requesting assistance in replacement or repurchase of the vehicle. While we refer all cases to the manufacturer for review, we cannot require the manufacturer to submit to arbitration unless the claim is within the specific program limits. The program eligibility information is explained in the program summary. You may want to contact the Division of Consumer Services at 1-800-321-5366 to see if you qualify under the lemon law. While I am sorry we were not able to help you with your automotive complaint, I want to thank you for your interest in the BBB AUTO LINE program. Please contact us if you have any questions or if you believe we have made an error. On November 2, 1995, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated November 3, 1995, the Department advised Petitioner that "a determination ha[d] been made to reject [his request because t]he request was not submitted in a timely manner."
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 because it is time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of March, 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 22nd day of March, 1996.
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
The Issue The issue for determination is whether Respondent properly denied Petitioner’s request for arbitration before the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact 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. 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. On June 1, 1998, Respondent received Petitioner’s request for arbitration. Petitioner’s vehicle had 24,000 miles on it at that time. Petitioner’s arbitration request disclosed vehicle problems requiring at least three repair attempts. Petitioner’s request failed to provide a copy of any written defect notification, or other written notification to the manufacturer of the vehicle. 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. 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. 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. 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.
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
The Issue This issue on this case is whether the Petitioner filed a timely Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact On December 30, 1993, William Coyle took delivery of a new 1994 Pontiac Bonneville. At the time the car was delivered to Mr. Coyle, the odometer indicated that the vehicle had been driven five miles. Soon after taking delivery of the vehicle, Mr. Coyle began experiencing problems with the car, including failure of the car ignition on several occasions, and a malfunctioning oil pressure indicator. On repeated occasions, Mr. Coyle returned the car to the dealer for repair. According to Mr. Coyle, the dealer was unable to fix the problems with the car. On or about July 7, 1995, Mr. Coyle filed a Motor Vehicle Defect Notification form. Although Mr. Coyle mistakenly dated the form as "7/7/94," the evidence establishes that the form was actually filed in 1995. Filing a Motor Vehicle Defect Notification form triggers a final opportunity for a vehicle manufacturer to correct the alleged defect. One copy of the notification form goes to the manufacturer. A second copy of the form goes to the Office of the Florida Attorney General. After the Motor Vehicle Defect Notification form was filed, the vehicle apparently was not repaired to Mr. Coyle's satisfaction. As set forth in Chapter 681, Florida Statutes, a consumer's rights under the Lemon Law extend for 18 months or 24,000 miles, whichever occurs first, and may possibly be extended an additional 6 months for those problems which have not been corrected in the initial period. Based on the repair records, Mr. Coyle's vehicle had been driven in excess of 24,000 miles by October 7, 1994. Assuming that Mr. Coyle was entitled to a six month deadline extension as provided by law, Mr. Coyle's Lemon Law rights expired on April 7, 1995. The applicable statute provides a period of six months following the expiration of the Lemon Law rights period by which a consumer must file a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. Mr. Coyle's Request for Arbitration was required to be filed not later than October 7, 1995. Mr. Coyle filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on December 12, 1995. By letter dated December 28, 1995, Mr. Coyle was notified by the Department of Agriculture and Consumer Services, that his request for arbitration was being rejected. As grounds for the rejection, the letter states: The lemon law rights period, as defined by Chapter 681, F.S., is 18 months or 24,000 miles, whichever occurs first, and may possibly be extended an additional 6 months for those problems which have not been corrected in the initial rights period. The Request for Arbit- ration should be received by this office with- in 6 months of the conclusion of the lemon law rights period or any extended time allowances. The attached Invoice number 6946, dated 10-07- 94, reflects that the mileage at the time of that repair to be 27,494. Since 24,000 miles apparently were exceeded prior to 10-07-94, your initial rights period ended at some point before that date. If a 6 month extension was allowed following the end of your rights period, the expiration of that extension would have occurred prior to 04-07-95. This would require that your Request for Arbitration be received by this office prior to October 07, 1995. Your application was signed December 05, 1995, post- marked 12-07-95, and received by this office 12-12-95. Reviewing all these dates, it is concluded that your application was not sub- mitted in a timely manner and must be rejected.... The evidence establishes that Mr. Coyle's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board was not filed by the proper deadline and must be rejected. Mr. Coyle asserts that he filed a Motor Vehicle Defect Notification on or about July 7, 1995, and that such notice is sufficient to qualify as a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. A Motor Vehicle Defect Notification is a separate document from a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. The forms are filed with different agencies. The filing of a Motor Vehicle Defect Notification does not constitute a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board. DONE and ENTERED this 31st day of May, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, 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 31st day of May 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0744 The Petitioner did not file proposed findings of fact. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Respondent. The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1, 10. Rejected, unnecessary. 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 William Coyle, pro se 2403 Vandervort Road Lutz, Florida 33549 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800
The Issue Whether the Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board should be granted or denied.
Findings Of Fact Pursuant to Section 681.109, Florida Statutes, Respondent's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive and evaluate consumer requests for arbitration pursuant to Chapter 681, which is officially known as the Motor Vehicle Warranty Enforcement Act, but which is more commonly referred to as the "Lemon Law". As part of its responsibilities, the Division of Consumer Services determines whether complaints it receives from consumer against manufacturers pursuant to the "Lemon Law" qualify for referral to the Department of Legal Affairs for further proceedings before the Florida New Motor Vehicle Arbitration Board. 1/ On March 29, 1995, Respondent received and filed Petitioners' Request for Arbitration under the provisions of the Lemon Law. Section 681.102(9), Florida Statutes, defines the "Lemon Law rights period" as being ". . . 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 first occurs." The automobile that is the subject of Petitioners' complaint is a Toyota Camry. The Petitioners took delivery of this vehicle on July 25, 1992, the date they leased the vehicle from a Toyota dealer. Eighteen months from July 25, 1992, is January 25, 1994. It was not until September 1, 1994, that Petitioners put 24,000 miles on the vehicle. The initial Lemon Law period, as defined by Section 681.102(9), Florida Statutes, expired for the subject vehicle on January 25, 1994. Petitioners made complaints to the dealer prior to January 25, 1994, that remained uncured after January 25, 1994. Because of those complaints, the Respondent assumed that the Lemon Law period was extended for an additional six month period pursuant to Section 681.104(3)(b), Florida Statutes. Considering the evidence in the light most favorable to the Petitioners, the Respondent determined that the extended Lemon Law period expired July 25, 1994. It is found that the extended Lemon Law period for the subject vehicle expired on or before July 25, 1994. Pertinent to this proceeding, Section 681.109(4), Florida Statutes, provides that a consumer must request arbitration before the Arbitration Board within six months after the expiration of the extended Lemon Law rights period. Because of that provision, the Petitioners had until January 25, 1995, to file its request for relief under the Lemon Law. The request for relief under the Lemon Law, first filed by Petitioners on March 29, 1995, was not timely.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that denies the Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on the grounds that the request was not timely. DONE AND ENTERED this 19th day of October, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 19th day of October, 1995.
The Issue The issue is whether Petitioner is entitled to arbitration before the Florida New Motor Vehicle Arbitration Board under Chapter 681, Florida Statutes.
Findings Of Fact On November 30, 1993, Petitioner took delivery of a new, 1994 Mercedes Benz SL600, bearing vehicle identification number WDBFA76EORF093081. The selling dealer was Regency Autohaus, Inc. in Naples, Florida, which is where delivery to Petitioner took place. Petitioner experienced numerous mechanical problems with the vehicle starting shortly after taking delivery. Problems during the first year of ownership included air conditioning that would not work and a transmission problem that would not permit use of gears other than third. On February 22, 1995, Petitioner sent to Mercedes Benz a Motor Vehicle Defect Notification. Petitioner continued to experience problems with the car and, on May 9, 1996, sent Mercedes Benz a second Motor Vehicle Defect Notification. Despite repeated attempts by Mercedes Benz to repair largely recurring problems with the car, Petitioner was unable to obtain satisfactory repairs. Twice, the Mercedes Benz dealer in Louisville, Kentucky, where Petitioner lives part of the year, towed the car to the shop to repair a failure of the car to start. Keeping the car 11 days the first time and six days the second time, the Louisville dealer could not determine the source of the problem. Later, in September 1996, the Louisville dealer kept the car for 13 days trying to fix several problems. At this time, the car had 23,692 miles on it. The issue in this case is whether Petitioner made a timely demand for arbitration under the Florida New Motor Vehicle Arbitration Board, Chapter 681, Florida Statutes. The Motor Vehicle Defect Notifications that Petitioner sent to Mercedes Benz are not demands for arbitration. The forms state that, under the Florida Lemon Law, the purchaser is “requesting that [the manufacturer] make a final attempt to correct the continuing substantial defect(s) or condition(s).” In the spring of 1996, Petitioner spoke with several representatives of Mercedes Benz and Respondent about arbitration and procedures under the Florida Lemon Law. By letter to a national Mercedes Benz representative dated April 24, 1996, Petitioner complained about the car and the discourteous treatment he had received from another Mercedes Benz employee. The letter explains why Petitioner does “not want to keep this vehicle” and warns that, if Petitioner did not hear from someone at Mercedes Benz within five days, he would “have no alternative but take further action.” By letter dated May 9, 1996, Petitioner sent the Office of the Attorney General a letter with a copy of the second Motor Vehicle Defect Notification. The letter notes that the car was in the shop for repairs for more than 15 days prior to the expiration of 18 months and thus appears to be covered by the Florida Lemon Law. The letter concludes: “I have requested that the purchase price be refunded or that the vehicle be repaired.” By letter dated May 23, 1996, Petitioner informed a Mercedes Benz representative in St. Petersburg, Florida, that Petitioner had researched his rights under the Florida Lemon Law. Petitioner stated that Mercedes Benz had to replace the vehicle or refund the purchase price. Petitioner added, “If your company fails to do this, then the only alternative would be to arbitrate the matter . . ..” The letter concludes: “It would seem to me that your company should be willing to go ahead and do this rather than go through the arbitration and be ordered to do something that you could voluntarily do. Please advise your thoughts on the matter.” On July 5, 1996, Petitioner filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. Immediately above Petitioner’s signature, which is dated June 28, 1996, the form warns that persons making false statements with the intent to mislead a public servant in the performance of his official duty are guilty of misdemeanor violations of cited Florida Statutes. The form adds: I hereby request arbitration of my case with the Florida New Motor Vehicle Board. I certify that all statements made in connection with this request are true and correct to the best of my knowledge. I understand that this document and its attachments are public records. The letters of April 29 and May 9 and 23 are not demands for arbitration. They are demands for the remedies that are available under the Florida Lemon Law, but they are not demands for arbitration. Nowhere in these three letters does Petitioner, who is an attorney, make a definitive demand of Mercedes Benz or Respondent for arbitration. The letters mention Mercedes Benz’s liability under the Florida Lemon Law and the remedies available under the law. The letters implicitly warn of arbitration, but continue to reflect Petitioner’s strategy during this period to try to work out this matter without the necessity of legal proceedings. Mercedes Benz does not maintain a certified procedure for the resolution of disputes of the type involved in this case.
Recommendation It is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order denying Petitioner’s request for arbitration before the Florida New Motor Vehicle Arbitration Board under Chapter 681, Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of January, 1997. 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 29th day of January, 1997. COPIES FURNISHED: Robert L. Bertram Post Office Box 25 Jamestown, Kentucky 42629-0025 Attorney Rhonda Long Bass Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Honorable Bob Crawford Commissioner of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
