The Issue The issue in this case is whether the Petitioner's Request for Arbitration by the Florida New Motor Vehicle Arbitration Board pursuant to Chapter 681, Florida Statutes, should be denied on the ground that the request was not timely filed with the Department of Agriculture and Consumer Services, Division of Consumer Services (hereinafter referred to as the "Department").
Findings Of Fact On May 20, 1993, the Petitioner took delivery of a new 1993 Volvo (the subject vehicle) from Gold Coast Volvo in Pompano Beach, Florida. The Petitioner put 24,000 miles on the subject vehicle on or before October 2, 1995. The Petitioner had problems with the subject vehicle, the most serious of which were that on an intermittent basis the vehicle would stall at slow speeds or would hesitate and stall when acceleration was attempted. During the first 18 months following delivery of the subject vehicle, the dealer made several (more than three) unsuccessful attempts to repair the hesitation and stalling problems. The Petitioner's initial Lemon Law rights period ended on November 19, 1994. As a result of the unsuccessful attempts to repair the hesitation and stalling problems during the initial Lemon Law rights period, the Petitioner was entitled to a six month extension of the Lemon Law rights period. That extension ended on May 19, 1995. Consumers are entitled to file for relief under the subject statutory provisions for a period of six months after the expiration of the Lemon Law rights period. In this case, that filing period ended on November 19, 1995. Prior to the expiration of the filing period that ended on November 19, 1995, the Petitioner had a copy of the pamphlet titled "Preserving Your Rights Under the Florida Lemon Law." The Petitioner attempted to comply with the instructions contained in that pamphlet. Following the expiration of the initial Lemon Law rights period, and following the expiration of the six month extension of that period, the dealer continued to make attempts to repair the continuing intermittent problems and continued to make assurances that eventually the problems would be resolved. In reliance on these attempts and assurances, the Petitioner postponed taking action to enforce his rights under the Lemon Law. On January 10 or 11, 1996, representatives of Volvo told the Petitioner they were unable to fix the intermittent hesitation and stalling problems on the subject vehicle. On January 15, 1996, the Petitioner filled out and signed a Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. The Petitioner sent the request for arbitration to the Department, where it was received on January 26, 1996. By letter dated February 7, 1996, the Department advised the Petitioner that it intended to deny his request for arbitration because his "application was not submitted in a timely manner." Volvo does not have a certified procedure for the resolution of consumer complaints. The Vehicle Defect Notification form and the Request for Arbitration form are separate documents with separate functions.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department issue a Final Order in this case denying the Petitioner's Request for Arbitration as untimely. DONE AND ENTERED this 22nd day of August, 1996, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 August, 1996. COPIES FURNISHED: Mr. Louis E. Martucci 5100 North Springs Way Coral Springs, Florida 33076 Rhonda Long Bass, Esquire Florida Department of Agriculture and Consumer Services Office of the General Counsel 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 Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Background Petitioner, Chrysler Corporation (Chrysler), is a "manufacturer" of motor vehicles as that term is defined by Section 681.102(10), Florida Statutes (1992 Supp.), 1/ and, as such, is subject to the provisions of Chapter 681, Florida Statutes, the "Motor Vehicle Warranty Enforcement Act." Consequently, Chrysler is substantially affected by the rules promulgated by respondent, Department of Legal Affairs (Department) to implement Chapter 681, and the parties have stipulated that it has standing to maintain this rule challenge proceeding. The Motor Vehicle Warranty Enforcement Act (the "Lemon Law") imposes upon manufacturers, as defined by Section 681.102(10), a duty to repair nonconformities which are first reported by consumers during the "Lemon Law rights period," and liability for the refund of the purchase price or replacement of those motor vehicles if their nonconformities are not corrected within a reasonable number of repair attempts. A consumer's right to exercise the remedies provided by the Lemon Law accrue from the date the consumer takes delivery of the motor vehicle. The "Lemon Law rights period" is defined by Section 681.102(9), Florida Statutes, as follows: "Lemon Law rights period" means 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. On October 9, 1992, the Department published notice, inter alia, of proposed rule 2-30.001(3)(e), in volume 18, number 41, of the Florida Administrative Weekly. Such rule would define "24,000 miles of operation," for purposes of calculating the running of the Lemon Law rights period established by Section 681.102(9), Florida Statutes, as "miles of operation by the consumer." By petition filed with the Division of Administrative Hearings on October 30, 1992, Chrysler timely challenged the validity of such proposed rule as an invalid exercise of delegated legislative authority. The predicate for Chrysler's challenge was its contention that the proposed rule enlarges, modifies or contravenes Section 618.102(9), Florida Statutes, the provision of law sought to be implemented. 2/ The proposed rule Proposed rule 2-30.001(3)(e) provides: When calculating the running of the Lemon Law rights period as defined by s. 681.102(9), FS., "24,000 miles of operation" means miles of operation by the consumer. If the consumer is a subsequent transferee as defined in s. 681.102(4), FS., "24,000 miles of operation" means miles of operation by both the original consumer and the subsequent transferee. The gravamen of the dispute between the parties concerning the propriety of the proposed rule is a disagreement regarding the interpretation to be accorded Section 681.102(9), Florida Statutes, which defines the "Lemon Law rights period" 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. Chrysler contends that the "Lemon Law rights period," as defined by Section 681.102(9), is clear and unambiguous, and that the "first 24,000 miles of operation" refers to the actual mileage shown on the odometer of the motor vehicle, without regard to when or by whom the mileage was accrued. So read, proposed rule 2-30.001(3)(e) conflicts with the law sought to be implemented. The position advanced by Chrysler is of import to it since Chrysler impresses new motor vehicles into use as company cars and permits its dealers to purchase and use new vehicles for demonstration purposes for customers or personal use, prior to their retail sale. During this period, the motor vehicle accumulates mileage on its odometer as a result of such "demonstrator" use. Excluding the mileage so accrued from the running of the "Lemon Law rights period," as contemplated by the proposed rule, could extend Chrysler's liability under the Lemon Law beyond the first 24,000 miles of operation registered on the vehicle, if it issued a warranty as a condition of sale to the consumer. See Section 681.102(14), definition of "motor vehicle," discussed infra. Contrasted with Chrysler's position, the Department interprets the "first 24,000 miles of operation" provision of Section 681.102(9), to relate to operation by a consumer, and would exclude any mileage accrued on the vehicle prior to its delivery to the consumer when calculating the "Lemon Law rights period." So interpreted, the proposed rule is consistent with the law sought to be implemented. The Department's interpretation is premised on its reading of Section 681.102(9) in pari materia with Section 681.102(14) which defines a "motor vehicle" as: . . . a new vehicle, . . . and includes a vehicle used as a demonstrator or leased vehicle if a manufacturer's warranty was issued as a condition of sale, or the lessee is responsible for repairs. . . . So read, a demonstrator is considered a new vehicle, and no distinction is made in applying the Lemon Law rights period between consumers who purchase a motor vehicle with no or minimal mileage on its odometer at delivery and those who purchase a demonstrator. The proposed rule's predecessor Pursuant to the provisions of Chapter 88-95, Laws of Florida, Chapter 681, Florida Statutes, was amended effective January 1, 1989, to establish what has been referred to as the Lemon Law. At that time, the "Lemon Law rights period" was defined as: . . . the period ending 1 year after the date of the original delivery of a motor vehicle to a consumer or the first 12,000 miles of operation, whichever occurs first. Section 681.102(7), Florida Statutes (1988 Supp.). To implement the provisions of the Lemon Law, the Department adopted Rule 2-30.001, Florida Administrative Code, in or about January 1989. At that time, the rule included the following definition of the "Lemon Law rights period": The "Lemon Law Rights period" is the period ending one year after the date of the original delivery of the motor vehicle to the consumer, or the first 12,000 miles of operation, whichever occurs first. This period may be extended if a substantial defect or condition is reported to the manufacturer or its authorized dealer during the Lemon Law Rights period, but has not been cured by the expiration of the period. If you put 12,000 miles on your vehicle (miles driven minus miles on the vehicle on the date of delivery) before the end of the first year of operation, you should note that date in your personal records. If a warranty problem is examined or repaired during the Lemon Law Rights period, be sure you get and keep a copy of the work order which contains the date, odometer reading, and a description of that problem. Your work order copy provides the best proof as to when the problem was first reported. [Respondent's exhibits 3 and 15]. Consistent with the foregoing rule, the Florida New Motor Vehicle Arbitration Board, which is charged with the responsibility of arbitrating disputes under the Lemon Law, has consistently construed the provisions of the "Lemon Law rights period" concerning "miles of operation" to relate to operation by the consumer, and has excluded any mileage accrued on the vehicle prior to its delivery to the consumer when calculating the "Lemon Law rights period." [See e.g., Respondent's exhibits 5, 8 and 9]. Since the Lemon Law was enacted, there has been no change in the definition of "Lemon Law rights period," or the Department's rule, until the passage of Chapter 92-88, Laws of Florida, effective July 1, 1992. Under such law, the "Lemon Law rights period" was amended to read as follows: (9)(7) "Lemon Law rights period" means the period ending 18 months 1 year after the date of the original delivery of a motor vehicle to a consumer or the first 24,000 12,000 miles of operation, whichever occurs first. Section 681.102(9), Florida Statutes. Here, the proposed rule is designed to reflect the change in the "Lemon Law rights period" from one year or 12,000 miles to 18 months or 24,000 miles, occasioned by the aforesaid amendment to Chapter 681. The Department's interpretation of the "Lemon Law rights period" concerning "miles of operation" to relate to operation by the consumer remains, however, consistent with its prior rule and interpretation.
The Issue The issue in this case is whether Respondent properly denied Petitioners' request for arbitration before the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact Respondent is the state agency charged with the responsibility to receive and evaluate customer complaints and requests for arbitration in disputes with automobile manufacturers and dealers doing business in the state of Florida. Respondent's duty includes determining whether a request for arbitration qualifies under Section 681.109, Florida Statutes, for referral to the Florida New Motor Vehicle Arbitration Board. Petitioners took delivery of a new Ford motor vehicle on February 3, 1992. Thereafter, Petitioners began having problems with the automobile's engine, windshield wipers, driver's window and power steering. Petitioners reported these problems to the authorized service agent for the first time on or about January 13, 1993. The mileage on the automobile was approximately 11,000 miles at that time. The authorized dealer attempted to repair the subject motor vehicle on January 13, 1993, February 9, 1993, and December 1, 1993. In January of 1994, the automobile had been operated for 24,000 miles. The authorized dealer again attempted to repair the subject vehicle on March 9, 1994. Petitioners completed a Vehicle Defect Notification on August 15, 1994. The purpose of this notice was to inform the manufacturer of the unsuccessful repair attempts. Ford Motor Company received this notice on August 18, 1994. The mileage on the automobile at that time was 29,569 miles. On August 23, 1994, the authorized dealer made a final attempt to repair the subject automobile. At all times material to this proceeding, Ford Motor Company participated in a state certified dispute settlement program. On October 5, 1994, Petitioners completed a Dispute Settlement Board Application. The Dispute Settlement Board received Petitioners' application on October 17, 1994. Petitioners took their automobile to the authorized dealer on October 27, 1994, because the engine light was on. The Dispute Settlement Board considered Petitioners' case on November 17, 1994. By letter dated November 19, 1994, the Dispute Settlement Board notified Petitioners that Ford Motor Company would repair the automobile's window and windshield wipers with no expense to Petitioners. The Dispute Settlement Board also informed Petitioners that Ford Motor Company would not be required to repair the engine, speaker, and rear view mirror concerns because, according company and authorized dealer reports dated October 31, 1994, those problems were resolved. On December 17, 1994, Petitioners completed a Request for Arbitration form. Respondent received this request on December 22, 1994. Respondent's letter of January 23, 1995, informed Petitioners that their arbitration application was not properly documented concerning the vehicle finance agreement. Respondent directed Petitioners to re-file their application with the proper documentation. Respondent also advised Petitioners that the application might be rejected as untimely. On or before February 3, 1995, Petitioners re-submitted their arbitration application. Respondent rejected Petitioners' arbitration application as untimely. Subsequently, Petitioners filed a request for an administrative hearing to contest the denial of their application. Upon receipt of Petitioners' request for administrative hearing, Respondent reviewed Petitioners' file again. After this review, Respondent sent Petitioners a May 25, 1994, letter which erroneously determined that Petitioners' request for arbitration was eligible for referral to the Florida New Motor Vehicle Arbitration Board. This letter correctly determined that the subject vehicle reached 24,000 after January 1, 1994. However, it incorrectly determined that the Lemon Law rights period had been extended to January 1, 1995. By letter dated June 8, 1995, Respondent corrected its erroneous decision, withdrew the letter of May 25, 1995, and reinstated the letter of February 3, 1995. The initial Lemon Law rights period expired on August 3, 1993, eighteen (18) months after the date of delivery of the subject motor vehicle. Therefore it is irrelevant that the car did not accumulate 24,000 miles until January of 1994. Respondent correctly extended the initial Lemon Law rights period for six (6) months, until February 3, 1994, because: (1) Petitioners notified the authorized dealer about the automobile's nonconformance with warranty within the initial Lemon Law rights period; and (2) The authorized dealer did not cure the defects within the initial Lemon Law rights period. In order to be eligible for arbitration, Petitioners had to file their claim with the certified dispute settlement board within six (6) months of the expiration of the extended Lemon Law rights period which, in this case, was August 3, 1994. Petitioners were not entitled to file their request for arbitration within thirty (30) days after final action of the certified dispute settlement procedure because they did not even start that procedure until the time to file a request for arbitration had expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioners' Request for Arbitration by the Florida New Motor Vehicle Arbitration Board on grounds that the request was not timely. DONE AND ENTERED this 26th day of February, 1996, in Tallahassee, Florida. SUZANNE HOOD, HEARING OFFICER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-4772 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1-11 are accepted in substance as restated in Findings of Fact 1-20 of this Recommended Order. COPIES FURNISHED Carlton and Patricia Jones 804 Pheasant Court West Jacksonville, FL 32259 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, FL 32399-0800 The Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, FL 32399-0810
The Issue The issue for determination in this proceeding is whether Petitioner timely filed her request for arbitration under Chapter 681, Florida Statutes. 1/
Findings Of Fact Respondent is the governmental agency responsible under Chapter 681 for receiving and evaluating consumer complaints and requests for arbitration that are filed against automobile manufacturers and dealers doing business in the state. Respondent is required to determine if a consumer's request for arbitration should be referred to the Attorney General for arbitration. Petitioner is a consumer within the meaning of Section 681.102(4). Petitioner purchased a motor vehicle for personal use and took delivery of the motor vehicle on September 15, 1992 (the "motor vehicle"). 2/ Petitioner filed two requests for arbitration for her motor vehicle. Petitioner filed her first request for arbitration on February 22, 1995. She filed her second request for arbitration on May 16, 1995. By letter dated March 7, 1995, Respondent notified Petitioner that her first request for arbitration lacked certain required information and returned the request for arbitration to Petitioner. Petitioner voluntarily withdrew her first request for arbitration on April 12, 1995. Respondent closed its file regarding the first request for arbitration. On May 16, 1995, Petitioner filed her second request for arbitration. Pursuant to a letter dated May 19, 1995, Respondent denied Petitioner's second request for arbitration on the grounds that it was not timely filed. Petitioner is generally required under Chapter 681 to file her request for arbitration within the time defined in Section 681.102(9) as the "Lemon Law rights period" (the "initial rights period"). The initial rights period expires on the earlier occurrence of two dates. The first date is 18 months from the date of delivery. The second date is the date that the motor vehicle accumulates 24,000 miles. The dealer delivered the motor vehicle to Petitioner on September 15, 1992. Eighteen months from the date of delivery was March 15, 1994. The motor vehicle accumulated 24,000 miles on September 16, 1993. The initial rights period expired on September 16, 1993, because that date occurred earlier than March 15, 1994. The initial rights period is extended, pursuant to Section 681.104(3)(b), for six months if there are any uncured nonconformities (the "extension period"). Petitioner experienced uncured nonconformities in the gear shift mechanism of the motor vehicle. The gear shift arm buzzes when the motor vehicle is driven in a forward gear. The gear shift arm jumps out of gear when the motor vehicle is being driven in reverse. 3/ Petitioner took the motor vehicle in for repair four times for the problem with the gear shift mechanism. The dealer attempted to repair the problem on: August 6, 1992, when the vehicle had accumulated 3,987 miles; September 16, 1993, when the vehicle had accumulated 24,000 miles; 4/ January 9, 1995, when the vehicle had accumulated 38,568 miles; and January 30, 1995, when the vehicle had accumulated 39,087 miles. The dealer never repaired the problem with the gear shift mechanism. The motor vehicle accumulated 24,000 miles on September 16, 1993. The extension period extended the time in which Petitioner was entitled to file her request for arbitration from September 16, 1993, until March 16, 1994. Respondent added 51 days to the time in which Petitioner was allowed to file a request for arbitration to reflect the period of time from the date Petitioner filed her first request for arbitration, on February 22, 1995, until she voluntarily withdrew her first request for arbitration on April 12, 1995. Fifty-one days from the last date of the extension period, March 16, 1994, expired on May 7, 1994. Petitioner filed her second request for arbitration on May 16, 1995, approximately one year after May 7, 1994. Petitioner did not file her second request for arbitration in a timely manner. 5/ Petitioner's second request for arbitration was not filed in a timely manner under the alternative deadline for filing a request for arbitration. Even if it is assumed that the motor vehicle did not accumulate 24,000 miles until 18 months after the date of delivery of the vehicle, Petitioner did not file her second request for arbitration in a timely manner. 6/ The dealer delivered the motor vehicle on September 15, 1992. The initial period of 18 months expired on March 15, 1994. The extension period expired on September 15, 1994. Fifty-one days from the expiration of the extension period was November 5, 1994. Petitioner did not file her request for arbitration until May 16, 1995.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for arbitration as not timely filed. RECOMMENDED this 31st day of October, 1995, in Tallahassee, Florida. DANIEL MANRY 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 October, 1995.
Findings Of Fact In 1991, Petitioner owned a new 1991 Ford conversion van which he felt was a lemon as that term is defined in the Florida Lemon Law. In pursuit of his legal rights under the Lemon Law, Petitioner made a request for arbitration of his automotive problem. Petitioner first applied for arbitration pursuant to the Lemon Law on December 31, 1991. Petitioner's application was incomplete because it failed to show that Petitioner had properly addressed and mailed Ford Motor Company a Motor Vehicle Defect Notification. The Department returned the arbitration request to Petitioner on January 14, 1992. The accompanying letter informed Petitioner that he was required to submit, by certified mail, a Motor Vehicle Defect Notification form to the "Ford Motor Company, Attention: Customer Relations, Post Office Box 945500, Maitland, Florida 32794 Petitioner was instructed to supply the Department with evidence of his compliance with the Notice requirement providing a proper receipt along with his application within 30 days of Petitioner's receipt of the January 14, 1992, letter. Petitioner failed to respond or return his application within the 30 days. No evidence was ever submitted to the Division to show that Mr. Thomas mailed the Motor Vehicle Defect Notification Form to the Ford Motor Company as instructed by the January 14, 1992, letter from Respondent and as required by statute. Similarly, no evidence was presented at the hearing that the form was ever mailed to the appropriate entity. After 30 days had lapsed from the January 14, 1992 letter, the Department could have "rejected" Petitioner's request for arbitration by sending him a notice of rejection as required by Rule 2-32.009(c)(2), Florida Administrative Code. However, the Division did not send a rejection notice to Petitioner at that time. Instead, Petitioner's file was closed on March 13, 1992, with no further action taken. Therefore, the time period for amending Petitioner's first application did not expire and remained open at least through January, 1993. At the hearing, Petitioner claimed that he did not respond to the Division's request for more information because he was mentally disabled and was hospitalized for 45 days between December 1991, and October 1992, and that the American's with Disabilities Act requires that an exception to compliance with the Rules and Statutes be given to him. However, the evidence did not demonstrate that Petitioner was disabled during the entire period of time after the Division's request for information. Additionally, Petitioner did not request an extension of his response time as is required by the Florida Administrative Code. Moreover, since neither the rules nor the statutes provide for such an ADA exception, the Division cannot unilaterally fashion such an exception without engaging in rulemaking under Chapter 120. Such an exception must be addressed by the Florida Legislature or in rulemaking. Therefore, Petitioner is not entitled to any exception to the Lemon Law requirements because of his disability or hospitalizations. Ten months later, On October 5, 1992, Petitioner again applied for Lemon Law arbitration. Petitioner's application was again incomplete and the Department requested more information. However, because the Division did not send Petitioner a formal rejection letter, the October 5, 1992, application related back to the first application filed December 31, 1991. Petitioner supplemented the second application with information showing that his vehicle had reached 24,000 miles in September of 1991. On November 13, 1992, Respondent notified Petitioner that his request for arbitration was untimely because his request did not fall within the statutory period allowed once his vehicle reached 24,000 miles. A rejection notice was contained in the Department's letter of November 13, 1992, thereby beginning the 30 day time period for any amendments to either of Petitioner's applications. As indicated earlier, the 30 day time period expired without Petitioner submitting any evidence that he had mailed Ford Motor Co. a Vehicle Defect Notification form. Therefore, Petitioner's application remained incomplete at the time any request for arbitration could have been made expired. Petitioner is therefore not entitled to arbitration under the Florida Lemon Law. Finally, after Petitioner had requested arbitration, Petitioner sold and replaced the conversion van prior to the hearing. Therefore, Petitioner can not present the van to Ford Motor Co. for one last opportunity to repair. Such presentation is a condition precedent to arbitration which Petitioner cannot meet. Additionally, by selling his vehicle, Mr. Thomas has abandoned his Lemon Law Claim, in that he no longer has an ongoing dispute with Ford Motor Company that requires arbitration and his request for such is moot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Department of Agriculture and Consumer Services denying Mr. Andrew Thomas' request for Lemon Law arbitration. DONE AND ENTERED this 22nd day of September, 1994, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1994.
