The Issue Whether Petitioner's request for arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be granted.
Findings Of Fact On October 12, 1994, Petitioner signed a "Request for Arbitration by the Florida New Motor Vehicle Arbitration Board" (hereinafter referred to as the application). This application was received by Respondent on October 14, 1994. Petitioner's application represented the following: He took delivery of the subject automobile on October 6, 1992. The automobile mileage at the time of delivery was 14 miles. The approximate date he put 24,000 miles on the automobile was August 25, 1993. There was no appearance by or on behalf of the Petitioner at the formal hearing. The notice of hearing accurately set forth the date, time, and location of the formal hearing. This notice was duly mailed to the address that the Petitioner had provided and contained the following warning: "Failure to appear at this hearing shall be grounds for entry of an order of dismissal or recommended order of dismissal, as appropriate."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's "Request for Arbitration by the Florida New Motor Vehicle Arbitration Board" be dismissed. DONE AND ENTERED this 30th day of March, 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 30th day of March, 1995. COPIES FURNISHED: John S. Koda, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Mr. Carlos M. R. Romeo 9977 Westview Drive #114 Coral Springs, Florida 33076 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
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 for consideration in this case is whether Petitioner’s request for arbitration under Florida’s Lemon Law was timely submitted.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Department of Agriculture and Consumer Services, (DOA), was the state agency in Florida responsible for the administration of the Florida New Car Lemon Law. This law provides for compulsory arbitration in those cases where the vehicle qualifies under the terms of the statute. Petitioner, Greco Carreras, purchased a new, 1994 Ford Ranger truck on June 8, 1994 from Ernie Hare Ford in Tampa, Florida. Thereafter, it was necessary for him to take the vehicle in for service, due to transmission and clutch problems. These visits were: March 1, 1995 Howard Smith Ford, OK 20,591 mi. Aug. 15, 1995 Ernie Hare Ford, Tpa., FL 31,935 mi. Jan. 23, 1996 “ “ “ “ “ 37,071 mi. Apr. 1, 1996 “ “ “ “ “ 41,450 mi. May. 20, 1996 “ “ “ “ “ 45,964 mi. Oct. 8, 1996 “ “ “ “ “ 52,521 mi. Petitioner had put 24,000 miles on his vehicle, by his own admission, sometime in May 1995. In any case, from the above dates and mileage points, it is clear that the 24,000 mile point was reached before August 15, 1995 when he had 31,935 miles on it at the time he first brought the vehicle in to the Florida dealer who sold it to him for service. On or about December 9, 1996, Petitioner executed and forward to the DOA a Request for Arbitration by the Florida Motor Vehicle Arbitration Board. This request for was received in the Department on December 12, 1996. Under the provisions of Section 681.102(9), Florida Statutes, the “Lemon Law rights period” is defined as: 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 occurs first. Consumers are required to request arbitration within 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action of a certified procedure, whichever occurs later. Ford Motor Company has no certified procedure in Florida. Therefore, the deadline for filing is six months after the expiration of the rights period. That would have been January 14, 1996 (18 months after Petitioner took delivery of the vehicle) or in May, 1995 (when he reached 24,000 miles on the vehicle, whichever came earlier. In this case, giving Petitioner the benefit of the doubt, his initial rights period was determined to have ended on or before August 15, 1995, when he put 24,000 miles on his car as evidenced by the repair receipt from Ernie Hare Ford reflecting 31,935 miles on the vehicle when it was brought in for service. The initial Lemon Law rights period may be extended for an additional six months if items of nonconformity which are reported to the dealer within the original period, remain uncorrected at the end thereof. The Department assumed that Petitioner qualified for this extension. This extended the time to February 15, 1996. Consumers have up to six additional months after the expiration of the Lemon Law rights period, as extended, to file for relief under the statute. In this case, Petitioner had until August 15, 1996 to file his request for arbitration. The copy of Petitioner’s request which was received into evidence reflects that he signed it on December 9, 1996, and it was received in the Department on December 12, 1996. This is more than three and a half and almost four months beyond the filing deadline in this case, and constitutes the Department’s basis for denial of Petitioner’s request for arbitration. Petitioner claimed at hearing that the reason he filed his request for arbitration was because the vehicle he purchased was a lemon. Though he purchased it new, it has been in the shop for repair of the same problem more than three times. Notwithstanding the wording of Florida’s Lemon Law in the pamphlet he was given at the time he purchased the car, Petitioner has some problem with the wording used and the way the 18 month/24,000 mile criteria are applied. Because of the fact that he had almost 24,000 miles on the vehicle the first time he brought it in for repair on March 1, 1995, less than nine months after he took delivery of it, he feels use of the 18 month criteria would have given him greater opportunity to find out what he needed to do. No doubt, he contends, had he filed for arbitration right after the third visit for the same problem, in January 1996, he would have been timely. However, he was being generous to the dealer in allowing them to try to fix the problem, an unfortunate mistake on his part. Petitioner also claims he was advised by an unidentified representative of the Department with whom he spoke by telephone after the September 1996 repair, (sometime in early December 1996) that he was still within the time constraints of the statute. At that time, he claims, he advised the individual with whom he spoke of the repair history of the vehicle and how many miles the vehicle had been driven. He was, apparently, wrongly advised.
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 10th day of April, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1997. COPIES FURNISHED: Greco Carreras 10420 North 22nd Street Tampa, Florida 33612 Rhonda Long Bass, Esquire Florida Department of Agriculture and Consumer Services Mayo Building, Room 515 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 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
The Issue Whether Petitioner's request for arbitration before the Florida New Motor Vehicle Arbitration Board should be granted.
Findings Of Fact Petitioner, Danielle Manfredo (Manfredo), purchased a 1992 Mitsubishi Eclipse from Leheman Mitsubishi in Miami, Florida, on November 5, 1992, and took possession of the vehicle on the same date. When Manfredo purchased the automobile she was given an owner's manual for a 1993 Mitsubishi Eclipse. She did not receive a brochure concerning the Florida Lemon Law nor was she provided any information by the car dealer concerning her rights under the Florida Lemon Law. In January, 1993, Manfredo began experiencing problems with the vehicle and continued experiencing problems into 1995. The two primary problems dealt with the transmission and the car pulling to the right. Manfredo continued to take the car in for repairs. In August, 1995, Manfredo obtained a Lemon Law form from her future mother-in-law. On August 25, 1995, Manfredo sent a Motor Vehicle Notification to the manufacturer and to the Attorney General. Respondent, Department of Agriculture and Consumer Affairs, Division of Consumer Affairs (Department) is the state agency charged with the responsibility to receive and evaluate Requests for Arbitration before the Florida New Motor Vehicle Arbitration Board for referral to the Attorney General for further processing and action. On September 27, 1995, Manfredo called the Department to get an application for arbitration. On October 17, 1995, she filed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated November 8, 1995, the Department denied Manfredo's request for arbitration, stating that the request was not timely. The latest possible date Manfredo could have filed a request for arbitration was May 5, 1995. Manfredo's request for arbitration was not timely filed. The Vehicle Defect Notification and the Request for Arbitration are not the same document and do not serve the same purpose. Mitsubishi does not have a state-certified manufacturer procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Danielle Manfredo's request for arbitration. DONE AND ENTERED this 11th day of April, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 11th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-192 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. No proposed recommended order was filed. Respondent's Proposed Findings of Fact. 1. Paragraphs 1-12: Accepted in substance. COPIES FURNISHED: Danielle Manfredo 1412 Southwest 129th Court Miami, Florida 33184 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 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 The Capitol, PL-10 Tallahassee, Florida 32399-0810
