Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner has leased the motor vehicle that is the subject of the instant controversy, a 1992 Merdedes-Benz 300SE (hereinafter referred to as the "subject vehicle"), from Bill Ussery Motors, Inc., an automobile dealership located in Coral Gables, Florida (hereinafter referred to as the "Dealership"), since October 30, 1991, when he took delivery of the vehicle. At the time of delivery, the subject vehicle was new. Thereafter, various problems developed with the subject vehicle. Petitioner reported these problems to the Dealership, but the Dealership was unable to completely rectify them within 18 months of the date of delivery. Petitioner drove the vehicle less than 24,000 miles during this 18-month period. Some of the problems that Petitioner reported during the first 18 months of his possession of the vehicle still persist today. On or about April 23, 1993, Petitioner sent a completed Motor Vehicle Defect Notification form to the manufacturer requesting that it "make a final attempt to correct the . . . reported . . defects." The manufacturer responded by sending the following letter, dated April 27, 1993, to Petitioner: This will acknowledge the Motor Vehicle Defect Notification form you completed, which was received by this office today. This letter shall serve as a written request to provide Mercedes-Benz of North America ("MBNA") with an opportunity to inspect, verify and if necessary, repair your vehicle. As you are aware, Bill Ussery Motors, Inc., located in Coral Gables, Fl., is a reasonably accessible repair facility. Mr. Eric Moore, Field Service Manager, will contact you to make an appointment to meet with you. If you have any questions or wish to discuss this matter further, please do not hesitate to call me at (904)443-2150. In or about December of 1993, Petitioner retained Joseph Portuondo, Esquire, who sent, on Petitioner's behalf, the following letter, dated December 13, 1993, to the manufacturer: As you know, Mr. Palaez has experienced such difficulty with his automobile that it led to his filing of a Motor Vehicle Defect Notification with you on April 23, 1993. Thereafter, on April 27, 1993, you directed Mr. Palaez to Bill Ussery [Motors], Inc. of Coral Gables, Florida, to attempt the last chance repairs to his automobile. Mr. Palaez complied with your instructions. However, the defects in the automobile remain unresolved and out of service days are well in excess of those required under the Lemon Laws of this state. Simply put, Mr. Palaez has a lemon for which we demand a remedy. As such, we hereby demand that Mr. Palaez be immediately refunded the full purchase price of the vehicle. In the event that you do not immediately provide a refund, we hereby demand that this matter be referred to the appropriate state-certified settlement program. Needless to say, if we are unsatisfied with this matter, we will proceed for relief to the Florida New Motor Vehicle Arbitration Board of the Office of the Attorney General. We trust that our position in this matter is clear. It is truly unfortunate that Mercedes-Benz and its dealer have chosen to treat Mr. Palaez so poorly as a customer that he has had to resort to judicial relief. In response to Portuondo's letter, the manufacturer sent him the following letter, dated December 21, 1993: We are writing in response to the correspondence received by this office today, regarding your client's vehicle. Mercedes-Benz of North America is concerned in this matter and as a result, your concerns have been assigned to Mr. Eric Moore, Field Service Manager, a member of our staff for handling. You will, if not already, be contacted by him in the near future. Thank you for bringing this matter to our attention. On or about December 29, 1993, Portuondo sent Petitioner a copy of the manufacturer's December 21, 1993, letter, along with the following cover letter: Enclosed herein please find a letter recently received [with respect to the above-referenced] subject matter. I will let you know if there is any progress. Petitioner waited until August 12, 1994, to file with the Department his Request for Arbitration by the Florida New Motor Vehicle Arbitration Board. He did not file a request sooner because, from April of 1993, the manufacturer and Dealership had repeatedly made representations to him, upon which he relied, that they would either make the necessary repairs to the subject vehicle or otherwise resolve the matter to his satisfaction so that there would be no need for him to resort to arbitration or litigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner's request for arbitration is not time-barred. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of March, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1995.
The Issue The issue for consideration in this case is whether Petitioner is eligible to participate in arbitration by the Florida New Motor Vehicle Arbitration Board concerning his purchase of a 1995 Saturn automobile.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Florida Department of Agriculture and Consumer Services, was the state agency responsible for the administration of matters regarding the implementation of the Lemon Law for motor vehicles in this state. Chapter 681, Florida Statutes, deals with motor vehicle sales warranties, and incorporates Florida’s Lemon Law as it is pertinent to this matter. Petitioner, Marshall E. Pitts, III, a resident of Groveland, Florida, purchased a 1995 Saturn SLI automobile on or about March 14, 1995, from Saturn of Orlando. The purchase order/contract for sale bears a date of March 14, 1995. The purchase price of the vehicle was $13,750. Petitioner had a trade-in valued at $8,400, which left a difference of $5,350 to be paid. In his request for arbitration, Petitioner indicated the purchase date as March 16, 1995, and the Department, giving him the benefit of the doubt in calculating the allowable time for filing under the Lemon Law, considered the March 16, 1995, date as the date of purchase/delivery which initiates the running of the time for filing a request for arbitration. The Lemon Law calls for filing for arbitration within 18 months or 24,000 miles of delivery. Therefore, the initial filing deadline was September 16, 1996. The vehicle reached 24,000 miles on the odometer sometime in November 1996. The Lemon Law statute allows an extension of six months for filing if a nonconformity has been reported but not cured by the manufacturer or its representative by the expiration of the Lemon Law period. Petitioner took the vehicle in for repairs to the safety belt three times starting sometime in October 1995. Exact dates are not shown. He also took it in for repairs to the transaxle three times, on March 21, 1996, September 19, 1996, and on January 31, 1997. The trouble with the transaxle was not corrected within the Lemon Law rights period. Because of this, a six-month extension for triple reports of difficulty was implemented. This extended the filing deadline to March 16, 1997. Petitioner was afforded an additional six-months extension because of the wording of the statute which grants an individual six months after the expiration of the Lemon Law Rights period to request arbitration. Application of this additional six months extended the filing deadline to September 16, 1997. Petitioner submitted his request for arbitration on October 29, 1997, and it was received in the Department on November 5, 1997. At the time of filing the request, there were 77,000 miles on the vehicle’s odometer. Petitioner claims he did not receive any notification of his rights under the Lemon Law from the dealer at the time he took delivery of the vehicle. He claims it was only when talking with an attorney late in the process that he learned of the existence of the arbitration procedure. A dealer of new cars is required by law to provide the purchaser of a new vehicle with a copy of the Department’s brochure which outlines the Lemon Law program. Petitioner also recites a litany of complaints regarding the vehicle and the treatment he received from both the selling dealer and the manufacturer. Unfortunately, traumatic as these problems must have been to him, they have no relevance to the issues here.
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 22nd day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1998. COPIES FURNISHED: Marshall E. Pitts, III 3831 Soto Road Groveland, Florida 34736 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services 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
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
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 The issue for consideration in this hearing is whether Petitioner is entitled to arbitration under the Florida Lemon Law, concerning his 1994 Ford Explorer, purchased on May 17, 1994.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, DOA, was the state agency responsible for the receipt, evaluation and, when appropriate, forwarding of consumer RFAs to the Florida New Motor Vehicle Arbitration Board conducted by the Attorney General of the State of Florida. On May 17, 1994, Petitioner, Kenneth P. Williamson, purchased a new 1994 Ford Explorer sport utility vehicle from Gator Ford in Tampa, Florida. Almost from the beginning, Petitioner experienced a vibration of the entire vehicle when a speed of more than fifty miles per hour was achieved. After several repair attempts, when the Petitioner had driven the vehicle for 12,000 miles without any relief from the problem, he took it back to Gator Ford for repairs. Gator’s efforts did not detect the cause of the problem or correct it. At some later point in time, when sought, no paper work relating to that service call could be found at Gator Ford. Thereafter, however, Petitioner took the vehicle to Carl Flammer Ford in Tarpon Springs for the same problem. Neither the problem’s cause nor a solution to it could be found. On or about June 23, 1995, the odometer on the vehicle in question indicated it had been driven 24,990 miles. Based on that fact, it is found that as of June 22, 1995, Petitioner had exceeded 24,000 miles of operation in the vehicle. This was recognized by Petitioner in his answer to question 17C on the RFA, when he indicated he had reached 24,000 miles on his vehicle in “5/95 OR 6/95.” On May 30, 1996, when the vehicle had 37,800 miles on it, Petitioner forwarded a motor Vehicle Defect Notification Form to Ford Motor Company advising of the vibration problem. That notice, sent by certified mail, was received by Ford on June 5, 1996. Petitioner claims, and Respondent admits, that his vehicle was out of service at least 21 days due to one or more substantial defects, and that there have been three or more repair attempts made to correct the same defect or condition. Because of these factors, and because Petitioner filed a notice of non-conformity with the manufacturer, albeit late in the proceedings, the DOA considered Petitioner to be entitled to the extension period within which his RFA may be filed. The times in this case pertinent under Florida’s Lemon Law are: Date of purchase of vehicle 5/17/94 Eighteen months from date of purchase 11/16/95 24,000 miles of operation reached 6/22/95 Initial Lemon Law limit reached 6/22/95 Six month extension due to Notice of Non-compliance filed 12/22/95 Six month deadline to file after expiration of 6 month extension 6/22/95 Date RFA filed with DOA 7/24/96 Excessive delay 32 days. On the basis of the above chronology, the DOA concluded that Petitioner’s RFA was not timely, and by letter dated August 23, 1996, rejected it. Petitioner submitted his Petition for Formal Proceedings on September 5, 1996, and it was received by the DOA on September 19, 1996. As of the date of this hearing, the unacceptable condition of the vehicle still exists. Ford Motor Company has contended that the condition is not serious, and when the vehicle had 16,000 miles on it, offered Petitioner $1,000 toward the purchase of a new vehicle. The dealer has now indicated it can do no more to correct the condition in issue. Petitioner claims he was misled by Ford Motor Company into waiting until the time limit for filing the Lemon Law RFA had expired. He did not know of the time constraints under the Lemon Law and believed Ford would correct the problem. He also claims that notwithstanding his signature appears on all the pertinent documents herein, his wife took care of all the paperwork. Ms. Williamson believes that the RFA was sent in on or around the time it was dated - June 5, 1996, but she cannot be sure. She is also not sure if it was sent by certified mail, but she has no receipt to demonstrate it was. She contends the RFA could not have been held by her as long as would be required for it to not be delivered until July 24, 1996, and suggests the DOA’s date stamp might be in error. The likelihood of that is remote. Petitioner and his wife admit to having been given a Lemon Law pamphlet when they bought the vehicle but also admit they did not study it timely to determine the criteria for filing a RFA. They want an opportunity to exercise their rights under the Lemon Law through arbitration and though they are not prepared to give this up because they cannot afford to replace the vehicle, they are very uncomfortable regarding its safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order denying Petitioner’s Request for Arbitration as untimely. DONE and ORDERED in Tallahassee, Florida this 14th day of January, 1997. 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1997. COPIES FURNISHED: Kenneth P. Williamson 3732 Meridian Pace Land O’Lakes, Florida 34536 Rhonda Long Bass, Esquire Department of Agriculture and Consumer Services The 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
