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
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
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 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.
The Issue Whether Petitioner filed a timely Request for Arbitration by the Florida New Motor Vehicle Arbitration Board.
Findings Of Fact Pursuant to Section 681.109, Florida Statutes, the Department's Division of Consumer Services (hereinafter, the "Division") is the state agency in Florida charged with the responsibility 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 requests qualify for referral to the Attorney General for further processing and action. Petitioner took delivery of the Ford motor vehicle at issue on January 29, 1993, and the vehicle reached 24,000 miles on January 7, 1995. In the intervening months, the truck exhibited severe vibration while being driven. Petitioner took the vehicle to the Ford dealer for repair, beginning on April 21, 1993 and again on June 3, June 21, twice in July 1993, January 6, 1994, and January 5, 1995. However, the problem was not corrected. In February 1995, Ford authorized Petitioner to take the vehicle to a private garage and the garage attempted to correct the problem without success. On May 8, 1995, Petitioner mailed, by registered mail to Ford Motor Company, a Motor Vehicle Defect Notification, with a copy to the Office of the Attorney General, Lemon Law Research Unit. In response to the Notification, on June 6, 1995, Ford Motor Company requested Petitioner take the vehicle in for final repairs. No response was received from the Attorney General's Office. When no response was received from the Attorney's General Office, Petitioner called Respondent's office and learned for the first time, that they must file a Request for Arbitration with Respondent's Consumer Complaint Division. On August 25, 1995, the Department received and filed Petitioners' Request for Arbitration by the Board. The initial Lemon Law Rights Period of 18 months from the date of delivery of the vehicle expired on July 29, 1994. Petitioner was entitled to an extension of the original Lemon Law Rights period because items of nonconformity reported during the original Lemon Law Rights Period remained uncured after that period. The extension ended on January 29, 1995, pursuant to Section 681.104(3)(b), Florida Statutes. Consumers are entitled to file for relief under the statute for a period of up to 6 months after the expiration of the Lemon Law Rights Period; that filing period ended on July 29, 1995, pursuant to section 681.109(4), Florida Statutes. Ford Motor Company does not have a state certified procedure. The Lemon Law and a state certified procedure are not synonymous. Petitioner forwarded his Motor Defect Notification to Ford Motor Company and the Office of the Attorney General. Each received the notification on May 22, 1995 and May 11, 1995 respectively. The Motor Vehicle Defect Notification and the Request for Arbitration are not the same document and do not serve the same purpose. Petitioner's Request for Arbitration was denied based upon the Department's conclusion that Petitioner's request was filed untimely as set forth in Respondent's Letter of Denial. Petitioner did not request arbitration before the Board until well after the last possible filing date of July 29, 1995.
Recommendation Based upon 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 the Petitioner's request for arbitration before the Board. DONE AND ENTERED this 27th day of February, 1996 in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, 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 27th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5309 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Petitioner did not submit proposed findings. Respondent's Proposed Findings of Fact. Accepted in substance paragraphs 1-11 COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture Department of Agriculture and Consumer Services 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 George W. Bierlin, Jr. Loretta Bierlin 1725 Richardson Road Merritt Island, Florida 32952 Rhonda Long Bass, Esquire Legal Division Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800
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
