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 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 Is Petitioner entitled to arbitration under the Florida "Lemon Law," Chapter 681, Florida Statutes, concerning a 1996 Mitsubishi Diamante which he leased on June 26, 1997.
Findings Of Fact Petitioner took possession of a 1996 Mitsubishi Diamante motor vehicle on June 26, 1997. Petitioner leased the vehicle from the Kelly Mitsubishi dealership in Jacksonville, Duval County, Florida. This was not a lease/purchase agreement. There appears to be no dispute that the vehicle was leased primarily for personal, family, or household purposes. The vehicle was financed by Auto Lease in a manner similar to that of a third party lender bank. Auto Lease paid the full amount of the lease to Kelly Mitsubishi and was to collect incrementally from Petitioner over the lease period. The vehicle required repair of warranty-covered parts and functions (to-wit: brakes) for non-conformity to the warranty on three occasions within the "Lemon Law rights period," as defined by Section 681.102(10), Florida Statutes. Such non-conformity was timely reported to the manufacturer within the Lemon Law rights period, and the manufacturer failed to repair the nonconformity or respond with a dispute settlement procedure, as provided in Section 681.108, Florida Statutes. On or before July 20, 1998, Petitioner returned the leased vehicle to Auto Lease, before the end of the lease term, and notified the manufacturer (Mitsubishi) of said return. This written notification also claimed Petitioner's right to compensation under Florida's Lemon Law and asked the manufacturer to purchase the returned vehicle for the amount still owing on the lease. The manufacturer did not honor such request. Auto Lease has made demand upon Petitioner for the sum of $27,531.05, as the purchase price remaining due under the lease, or for the difference between that sum and the price for which the vehicle would sell at auction. In the fall of 1998, Petitioner sent the manufacturer (Mitsubishi) a second letter notifying it that the vehicle had been turned over to the physical possession of Auto Lease, the third party lender, and that Petitioner would hold the manufacturer responsible for the deficiency as part of his damages under the Lemon Law. On September 21, 1998, Petitioner timely applied for arbitration, pursuant to Section 681.109, Florida Statutes, on a form prescribed by Respondent DACS. At all times material to the issues herein, Respondent DACS was the state agency responsible for the receipt and evaluation and, when appropriate, the referral of consumer Requests for Arbitration to the Florida New Motor Vehicle Arbitration Board conducted by the Attorney General of the State of Florida. On September 24, 1998, Respondent timely rejected the application in writing as provided in Section 681.109(6), Florida Statutes, as insufficient to qualify for relief, because Petitioner was no longer in possession of the vehicle. Petitioner timely requested formal hearing of such rejection on October 13, 1998.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order referring this cause to the New Motor Vehicle Arbitration Board for arbitration. DONE AND ENTERED this 5th day of May, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 5th day of May, 1999. COPIES FURNISHED: Mike E. Jorgensen, Esquire 7555 Beach Boulevard Jacksonville, Florida 32216 Howard C. Holtzendorf, Esquire Angela Dempsey, Senior Attorney 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, Plaza Level 10 Tallahassee, Florida 32399-0810 Bob Crawford, Commissioner Department Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Petitioner qualified for arbitration before the Florida New Motor Vehicle Arbitration Board (hereinafter the "Board") pursuant to Chapter 681, Florida Statutes.
Findings Of Fact At all times material to this proceeding, Petitioner, Michael Boudreau, was a resident of the State of Florida. Pursuant to Section 681, Florida Statutes, the Respondent's Division of Consumer Services is the state agency in Florida charged with the responsibility to receive, screen, and evaluate requests for arbitration before the Florida New Motor Vehicle Arbitration Board and to determine eligibility for arbitration. Respondent has the authority to reject a dispute that the Respondent determines to be outside the scope of the Board's authority. On May 17, 1996, Petitioner purchased and took possession of a new 1996 Dodge Ram 3500 Truck from Dodge Country in Duluth, Georgia. Dodge is a division of the Chrysler Corporation, a Michigan corporation. The consideration for the motor vehicle was paid to Dodge Country in Duluth, Georgia. The truck was driven to Florida. It was titled in Florida, and the sales and use tax, registration fee, and title fees paid to the State of Florida. Petitioner made numerous reports of problems with the vehicle. The manufacturer's authorized service agent in Florida was given more than three attempts to correct the same problem without success. On May 8, 1997, Petitioner filed his Request for arbitration by the Florida New Vehicle arbitration Board. By letter dated May 9, 1997, the Respondent rejected Petitioner's Request for Arbitration because the vehicle was purchased in Duluth, Georgia, and not sold in the State of Florida. Petitioner testified that he attempted to purchase the vehicle in Florida. However, the make and model of his choice was not available from any dealer in Florida. He was forced to purchase the vehicle out-of-state, but he drove it immediately thereafter to Florida and titled it in this state.
Recommendation Upon 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 the Petitioner's Request for Arbitration before the Board. RECOMMENDED this 8th day of December, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Michael J. Boudreau, pro se 1209 Alton Drive Apopka, Florida 32703 DANIEL M. KILBRIDE 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 8th day of December, 1997. Rhonda Long Bass, Senior Attorney Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Commissioner of Agriculture The Capitol, Plaza Level 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 June 16, 1993, Petitioner took delivery of a new 1/ 1994 Mitsubishi Galant ES that he had leased (for a 42-month period) from Potamkin Mitsubishi (hereinafter referred to as "Potamkin"), a Florida Mitsubishi Motors of America (hereinafter referred to as "Mitsubishi") dealership. Thereafter, problems developed with the vehicle's braking system, which caused the steering wheel to vibrate. Petitioner, who, under his lease agreement, was responsible for having the necessary repairs made to the vehicle, reported these problems to Potamkin. Potamkin was unable to completely 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 less than 24,000 miles. The problems that Petitioner reported during the "18-month post- delivery" period still persist today. On or about January 24, 1995, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer of the vehicle, Mitsubishi, requesting that it "make a final attempt to correct the continued substantial defects" plaguing the vehicle. The defects were not remedied. On June 21, 1996, Petitioner filed with the Department a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. By letter dated June 26, 1996, the Department advised Petitioner that "a determination ha[d] been made in accordance with Chapter 681.109(6) Florida Statutes, and Rule 2-32.009(2)(b), Florida Administrative Code, 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 5th day of December, 1996. STUART M. LERNER 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 5th day of December, 1996.
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 for consideration in this hearing is whether Petitioner should be certified by Respondent as qualified for arbitration services by the Office of the Florida Attorney General.
Findings Of Fact The Florida Department of Agriculture and Consumer Services is the state agency in Florida charged with the responsibility under the Florida Lemon Law 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 request qualifies for referral to the Attorney General for further processing and action. Michael F. Morrow, then the husband of Petitioner herein, Sandy Morrow, purchased a 1992 Ford explorer from Gary Brown Ford, Inc. in Hudson, Florida on April 8, 1992. The total purchase price was $19,967.94. A deposit of $1,000 was made at the time of the order, and the balance of $18,967.94 was paid in cash at the time of delivery of the vehicle on April 29, 1992. Less than one month after delivery, the Morrows began to have problems with the vehicle. On May 14, 1992 the vehicle would not start and was towed to the dealership for repairs. It was returned after 5 days. On September 21, 1992, the vehicle's paint was noticed to be chipping off and the vehicle was again returned to the dealer for correction. This time it was kept for 8 days. When, on September 28, 1992, Ms. Morrow went to retrieve the vehicle, she noticed that various chips had not been repaired, so she left it with the dealer for another 4 days. On November 22, 1993, Ms. Morrow replaced the battery in the vehicle. At this time, the vehicle was only 19 months old. A radio/cassette player problem noticed at that time was un-traceable and ignored by the dealer. However, on July 14, 1994, after parts on the vehicle had begun falling apart, Ms. Morrow again brought the vehicle in for repairs and left it for 1 day. At this time the dealer repaired the armrest. It also corrected a mildew odor in the air conditioning and a failure of that unit to cool; replaced missing screws in the driver's seat; and fixed the rear windshield washer which had broken off. In addition, the radio/cassette player problem still existed and was not fixed. On August 8, 1994, because the radio/cassette player was still not working, Ms. Morrow returned the vehicle to the dealer and left it for 16 days until August 23, 1994. Approximately one month later, on September 24, 1994, while Ms. Morrow was on vacation with the vehicle, the air conditioning stopped working. Having achieved no satisfaction from the dealer, Ms. Morrow took the vehicle to another mechanic who repaired the unit in one day. Nonetheless, four days later, on September 28, 1994, when Ms. Morrow opened the vehicle door, the door lock fell out. No tampering with the lock could be found, and the vehicle was in repair for 1 day. On November 1, 1994, the rear window washer stopped working and the vehicle was in the shop for 1 day. The following day, Bill Currie Ford, a Tampa Ford dealership, took the vehicle in for repainting due to fading. The vehicle was in the shop for 21 days. When it was returned, Ms. Morrow noticed that the interior was coated with a red/orange residue, the carpets were not reinstalled, and various parts were left lying inside. When she complained, she was told by the service manager that they had had to take the car apart to repaint it. The following day, the dealership cleaned the paint residue from the inside of the vehicle, but Ms. Morrow had to reinstall the carpet and replace some of the parts herself. While all this was going on, and since she was still getting little, if any, satisfaction from the dealer, Ms. Morrow telephoned the Department's Office of Consumer Services. The individual with whom she spoke advised her to go through the Ford Motor Company consumer appeals process first. As a result, on August 16, 1994, Ms. Morrow wrote to the Ford Consumer Appeals Board and outlined her litany of complaints regarding the vehicle in question. By letter dated October 8, 1994, the Dispute Settlement Board of Ford Motor Company advised Ms. Morrow that since most of her complaints, those relating to the paint, rear washer, arm rest, seat, radio and air conditioner, had been resolved, it was the unanimous opinion of the Board that she be offered a 12 month/12,000 mile Extended Service Plan and be reimbursed $10.60 for air deodorizing. Ms. Morrow was also advised that if she rejected this offer in settlement, she could pursue arbitration with the Florida New Motor Vehicle Arbitration Board administered by the office of the Florida Attorney General. She was also notified of the fact that her Request for Arbitration must be filed within either 6 months after the expiration of the Lemon Law rights period, or within 30 days after the final action by Ford's board, whichever was later. On November 17, 1994, Ms. Morrow signed her Request for Arbitration which was received in the Department on November 22, 1994. The Request was reviewed and a decision made to reject it as untimely on November 30, 1994. That decision was communicated to Ms. Morrow in Mr. Hamrick's letter mentioned previously. The decision to reject Ms. Morrow's Request for Arbitration as untimely was based on a calculation of the time which elapsed after the decision of the Ford Settlement Board on October 8, 1994. The Department computed the thirty days period to expire on November 7, 1994. The Lemon Law rights period of 18 months from the date of delivery of the vehicle expired on October 29, 1993. However, because at that time all complaints regarding the vehicle had not been corrected, it was extended to April 29, 1994. Under either scenario, and applying that most liberal to Ms. Morrow, her Request for Arbitration, signed on November 17, 1994, and received by the Department on November 22, 1994, was considered untimely. Under the terms of the Florida Lemon Law, if the complainant does not meet the eligibility requirements for requesting arbitration, the Department has no authority to send the complaint to the Attorney General for arbitration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Department of Agriculture denying Ms. Morrow's request for arbitration services. RECOMMENDED this 4th day of April, 1995, 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 4th day of April, 1995. COPIES FURNISHED: Sandy Morrow 4022 Shamrock Tampa, Florida 33611 John S. Koda, Esquire Department of Agriculture and Consumer Services Room 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 - PL10 Tallahassee, Florida 32399-0810
