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 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 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
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 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.
